The respondent, Michaela Banerji, was in 2013 dismissed from the then Department of Immigration and Citizenship after a finding she had breached the Australian Public Service Code of Conduct. Using a pseudonymous Twitter handle, she had publicly criticised certain politicians and officials, including her then boss; Sandi Logan; then Minister for Foreign Affairs, Senator Bob Carr; and then immigration shadow minster and now Prime Minister, Scott Morrison. She also condemned the government’s immigration policies, tweeting “Offshore processing is unlawful” along with the hashtag “nodetention”. At the time she was a departmental public affairs officer.
During disciplinary proceedings she sought interlocutory relief from the Federal Court on the grounds that her tweets were protected by a constitutional right of political expression, irrespective of her employment contract, the APS Code of Conduct, and DIAC’s policies regarding employees’ use of social media. The court rejected this argument. In doing so, Justice Warwick Neville observed there was no “unfettered implied right (or freedom) of political expression”.
The AHRC submissions to the court are in support of Banerji. They make for interesting reading to say the least. For example, “A burden on political speech by public servants to the people is as qualitatively significant as a burden on speech by elected representatives to the people.” Consequently, “Burdens on political speech by public servants are less likely to be justified than other burdens on political speech.”
But most revealing was its submission that “Public servants have expertise and experience the communication of which may be critical in holding the Executive Government to account.”
Is the AHRC seriously suggesting all public servants could legitimately act as watchdog over elected government? Given the APS is the government’s administrative arm and is responsible for serving the government of the day, this would create an enormous conflict of interest as well as compromising the relationship of trust that is essential between each agency and its respective minister.
Call me cynical, but I believe AHRC’s motivation in intervening has little to do with upholding freedom of expression and a lot to do with establishing a doctrine of public service supremacy. The agency’s dogmatic and longstanding insistence on subordinating freedom of expression to the so-called right not to be offended is blatantly obvious. Also, if it cared so much about freedom of expression, why was the AHRC silent on the Gillard government’s attempt to impose regulations on the media that would have compromised a free press?
The AHRC and similar institutions are, by their very nature, left-wing. They embrace activism and abhor conservatism. Parties such as Labor and the Greens regard them as an ally, a government in exile if you like.
When Labor is in Opposition these bodies intensify their scrutiny of government. Although their activities are theoretically in accordance with their legislative charter, these bodies are dominated by activists who regard undermining conservative governments as their primary aim. …
Like the ABC writ large:
Imagine the omnipotence of this ideology if the remainder of the federal government’s 150,000 plus employees were given similar license. … It would result in a transformation of the APS [Australian Public Service] to a workers’ collective.
The APS would observe its obligations under the Public Service Act much like the ABC observes its legislative charter. In other words, the culture would consider itself bound only by the requirements it agreed with.
Good Lord. Government bureaucrats already basically run the country, largely via selective enforcement.
It was well known in Canberra that it generally took about six months to break in a new government minister, after which they would generally do what they were guided to do by the departmental bureaucrats. Note that the departmental bureaucrats are usually experts in the area and have been doing the job for ages, while the minister has just shown expertise or luck at being elected and often knows little about the department’s area. The knowledge imbalance is huge. As they say, knowledge is power.
Yes Minister was not a comedy, but a documentary. Many in Canberra could attest to that.
The humorous side:
@GillianTriggs bursts out of her office five minutes after Tony Abbott is sworn in as PM. “I’m announcing an inquiry,” she tells us breathlessly. “I’ve just discovered there are children in immigration detention!”#JustKidding …
@timsout gets paid around $350K a year to travel in luxury and attend UN junkets around the globe and his biggest complaint about his job is that a flight attendant won’t try to pronounce his surname? #SoPompousVain