A notice of appeal in the matter of Banerji v Bowles FCCA 2013 (9 August 2013) was recently filed in the Canberra registry of the Federal Court of Australia.
The question for the court is whether the Public Service Act 1999 is a burden on the freedom of political communication as implied from the Australian Constitution, in that it prohibits public servants from criticising government at all times.
In other words, whether it is a legitimate end to create a class of persons in Australia, public servants, who are not free to criticise government, in their capacity as private citizens, at all times.
Michaela Banerji, an employee of the Department of Immigration and Citizenship, under the handle of @LaLegale, tweeted her dismay about Australia’s asylum seeker policies.
On complaint by the National Communications Manager Sandi Logan, himself an avid Tweeter on behalf of the department, to the Values and Conduct section of the department, Ms Banerji was found to have breached the APS Code of Conduct – the proposed sanction, termination of employment.
Ms Banerji sought an injunction from the Federal Court, on the grounds that Mr Logan’s actions were the last in a series of adverse actions towards her, his complaint being a retaliatory act in response to her complaint about his bullying and victimisation over a period of several months.
Under the Public Service Act, the department recognises Ms Banerji’s complaint as a ‘whistleblower’ report, and is required under the act to protect Ms Banerji from retaliation. This, the department failed to do, and has instead, sought to sack her.
Damien Carrick of the ABC’s The Law Report, in his program of 29 August 2013, described the case as “likely to become a test case for every civil servant in the country”.