Banerji and the Threat to Free Speech

14/08/2019

The High Court has ruled that Michaela Banerji’s sacking from the (then) Department of Immigration and Border Protection – Home Affairs sounds much nicer for the PR – was legitimate. This ruling has (to borrow the frequently used phrase from everywhere) rather chilling effects for democracy and free speech, and also has implications for other areas as well.

Banerji’s Case

Under the (supposedly) anonymous Twitter pseudonym LaLegale, Banerji had posted thousands of tweets critical of government policies in 2012 (she was fired in 2013), mostly relating to refugee and offshore detention policies. Her boss, Sandi Logan, with whom she had an altercation with on the platform at one stage, was the one who set off the investigation into the account, raising the matter internally. This led to Banerji’s sacking and the subsequent legal action, culminating in the High Court ruling last week.

Banerji’s lawyers argued that, as the Twitter account was private and in no way suggested a public servant was behind the tweets, she had not breached Australian Public Service (APS) Code of Conduct. But there is one part of the Code that could see even private social media posts as a breach:

“An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.”

My emphasis. Because that is the troubling part of this whole situation. You could argue – depending on the context, incorrectly, in my view – that if someone is at their place of work that they shouldn’t be critical of government policy and simply do their job. But outside of the workplace, and particularly in private, should a person not have the right to say what they wish? Should citizens of any profession not have the right to criticise their government and their policies?

The High Court has now ruled that, no, APS employees do not have the right to freedom of speech, even in an anonymous and/or private capacity, on matters of politics (at least, in reference to their specific line of work, in this case refugee policy). If this does not concern you as a major instance of government censorship on a large portion of the population (about 2M people), then perhaps there are some further implications involved that might convince you.

Public Sector

Both the public and private sectors should be paying attention to this ruling, as it essentially waives an employee’s rights in favour of their employer. But let’s stick to the public service for now, because there are many ways that this precedent could be abused, and a number of cases where it is outright moronic.

First off, beyond the plain, Orwellian nature of prohibiting criticism – I can’t imagine supportive messages would be so ardently hounded – the implication here is that APS employees must be loyal to the government of the day. While, in concept, the idea of the APS being apolitical sounds good, in practice it only serves to create a complicit and compliant workforce. I think the case of someone working in the Department overseeing refugee policy is the perfect example, although many others could illustrate this point.

Banerji’s tweets called the government’s policies inhumane and suggested they needed to change. Not only should she have the right to believe this as a private citizen, but as someone in a role connected to human rights abuses, one would imagine it is the duty of APS employees to question the government’s actions. Imagine firing someone because they believed their employer should adhere to International Law and Human Rights law? Because that’s technically what’s happened here.

And this, really, is a fairly low standard – she was only criticising the government. Take the case of Witness K, the whistleblower who revealed that Australia had bugged offices in Timor-Leste during negotiations for a maritime border and resources. He disclosed information that was hidden due to “national security” reasons, but it’s a similar scenario. The government was spying on another nation, a nation we have tried to break at every turn for decades, all for the profits of giant private companies. The conduct of our government is something that should absolutely be public knowledge, and the treatment of Witness K and his lawyer is wrong. Similarly, public servants should be able to criticise or talk about policy without fear of punishment, especially if they’re not disclosing any confidential information.

The second point, that in my opinion is one of the more troubling ones, is how far reaching can this precedent go? My friend, studying midwifery, asked me about this case and it’s easy to see how it may affect her. If she moves to work in a public hospital as a midwife and, in private or openly, criticises the government’s policies regarding healthcare in Australia, will she be fired? If a relative of mine, who is a teacher aide, posted something negative about changes to education policy, would she be fired? According to the High Court, yes in both cases.

And does it stop in their field of work? What if one of them criticised refugee policy as well – is it a breach of the Code to speak negatively about any government Department, or just the one they belong to? Or if they posted criticism before seeking employment in the APS, would that affect their chances of employment? I feel it would be hard to justify not hiring someone based on their privately held opinions. That may sound like a stretch, but they’re questions that urgently need answers, because I wouldn’t put it past the government to take that line.

A step further, does this implicate Union membership too? If this precedent does extend to criticism of Departments and policies outside the duties of the employee, could someone fighting for Union rights and powers, against the current government’s wishes, land them in hot water? Being a Union member is as much a form of political communication as criticising policy – is there a line that will be drawn between the two? Who gets to determine that? Despite Morrison’s attempts to sugar-coat his dangerous anti-Union laws by saying “everyone has the right to join their Union”, could we end up in a situation where we either have no Union representation, or we have Unions but being associated with them denies you employment in the public service? As I said above: complicity and complacency, if you won’t do what you’re told, we’ll find someone else who will.

The last point I want to make about the public sector is a justification for the criticism. In all of the above cases, who is better equipped to have an informed opinion – the employee, actually working in the profession in question, or the politicians dictating policy? I don’t know what Banerji’s role in the Department was specifically, but would she not have been well informed on the issues she spoke about? Wouldn’t people who worked with refugees and knew international law have a greater understanding of reality than those in Parliament?

I would listen to a midwife’s criticisms of the public healthcare system over the ramblings of a politician, because said midwife has worked in a hospital – they would know how policy affects them and their workplace and their opinion should matter, whether supportive or critical of the policies. Same with education – those who work in schools will have a much greater understanding of what is required, be it increased funding, resources, etc. Should a nurse or midwife be fired for thinking their patient deserves better care and facilities? Should a teacher be fired for wanting to provide higher quality education to students than the currently falling budget can supply?

Private Sector

Now for the private sector. If the government has the right to terminate employment based on the privately held opinions and beliefs of an employee, does that mean businesses will adopt this power? You can very easily imagine countless scenarios where an employer could let you go suddenly if your political opinions did not align with their business.

A McDonald’s employee that believes they’re being underpaid and shows support for raising wages and improving work conditions? Nope, don’t want them, they cause trouble, wanting their rights and stuff. Or a retail worker conscious of the fact that the company/companies involved in the manufacturing of items or clothing use slave or child labour in third-world countries. Imagine signing a petition calling on said company to change their ways and walking into work the next day to find out you’ve been fired. Is this fair? Is expecting your employer to act with integrity and basic morality too much to ask? I don’t think so.

Incidentally, the Israel Folau case is also relevant here. Since my last post on him was posted, my opinion has changed slightly, even if the underlying idea of my previous opinion still remains. In this case, the roles are somewhat reversed, but still lead to the same conclusion. Folau is the one, as an employee and public figure, that is in the wrong. His anti-LGBT sentiment, posted on his public facing social media profiles, was despicable, and it breached his contract. Was his sacking justified, then? If personal beliefs and opinions, stated privately or publicly, shouldn’t affect peoples’ employment, then why would they bring down Folau?

Well, it’s not quite that simple. My stance on the Folau case – and why I differentiate it from the others, public or private sector – has shifted slightly after a recent conversation I had about it. Folau should not be fired for his religious beliefs, but the key point in his case is that he used his public profile – in many ways, a face of Rugby Australia – to promote them, even after he had been (also quite publicly) warned and told to stop. He defied this by doubling down, resulting in the termination of his contract. Do I agree with that? As I made clear above, the power of an employer to fire an employee on the basis of personal opinions and beliefs is one that should concern everyone.

But, where I can understand the difference between cases like Banerji’s and those like Folau’s is how they went about it, and the context. Banerji was, privately and anonymously, criticising the government (her employer) and their policies. Even if she was doing so openly, she should not have been fired because her opinion and knowledge on refugee policy is relevant to her role. If you believe refugees should be treated humanely and your employer, the government, is not being held to those standards, if you didn’t speak out you would be complicit.

Folau, on the other hand, was very publicly using a massive platform that promoted his employer directly to promote beliefs that had absolutely nothing to do with his job. Had he used a private account or preached about it in a church setting (as he did at some point), then yes, his termination would have been wrong, as his right to privacy and freedom of speech would have been under attack. But seeing as he was using a professional page to peddle privately held beliefs, even after being given a chance to stop doing so, I am more open to accepting his sacking. To explain that better, had Banerji had access to an official Department profile, or had some higher role and public account for it, and proceeded to make similar anti-LGBT comments, then yes, her sacking would also have been justified.

As an aside and overarching point, privacy becomes an issue here as well. Not only are the rights to free speech impeded, but the right to privacy is also waived. In the case of Banerji, her anonymous Twitter account was investigated and tied to her. Does this mean employees lose all privacy, instead allowing their employers to conduct invasive probes of their private dealings? When people say that collecting citizens’ data isn’t a problem, or is for national security, not to spy on us, show them the Banerji case – now imagine the government knowing every pollical opinion you hold and try to tell me that they surely only have your best interests in mind. And then what I mentioned about Folau, if he had simply kept his opinions within the church, would Rugby Australia be justified in monitoring his Sundays for any dirt? Absolutely not.

End

In summary, freedom of speech is paramount, and no matter what your job or position, criticism of the government and their policies is something every citizen should be allowed to take part in. It’s a dark and authoritarian world when governments and companies expect unyielding loyalty and complicity from their employees, while thinking they are above scrutiny and the law.