The Constitutionally Implied Freedom of Political Communication for Public Servants

Senator the Hon George Brandis QC

An open letter to the Attorney-General the Honorable Senator George Brandis QC

Dear Senator Brandis

I write to you on the topic of the Constitutionally Implied Freedom of Political Communication for Public Servants

You will be aware of the case of Michaela Banerji who was sacked from the Department of Immigration in September 2013 for breach of Code of Conduct for having used the social media platform “Twitter” to highlight the Australian Government’s responsibilities under the Refugee Convention towards asylum seekers.

At the time I sought an injunction to prevent what I saw as unlawful termination of my employment. It was my view that the breach decision was void on the grounds that all Australian citizens, whether a public servant or not, have a constitutionally implied freedom of political communication. in their capacity as private citizens, to criticise government.

My case was to test this principle. However, as things turned out, the public interest organisation that was representing me was not prepared to argue the constitutional point on the grounds that it would expose me to potentially enduring legal process and huge legal costs. On its advice that it would be in my interest to end the litigation, the parties reached an out of court settlement in March 2014.

The problem is that the question of whether public servants, as a class of persons, are to be deprived of the constitutionally implied freedom of political communication as private citizens, remains untested.

This is a most unsatisfactory situation which is creating a great deal of anxiety amongst those of us who take the view that such a freedom is absolutely essential to the proper functioning of a democracy.
I have carried out an analysis of the APSC guidelines on participating on-line, and have concluded that the guidelines are a ‘trip-wire’ for public servants in that while on the one hand the guidelines state that public servants are encouraged to enter into robust discussion, they are in fact, not permitted to criticise government as private citizens.

It is no mean feat to sue the Commonwealth, in spite of its model litigant rules, and I am very disappointed that the risk of legal costs has meant that we have not been able to clarify this point. Personally speaking too, the breach decision remains on the record with its defamatory imputations to me.

I write to by way of open letter to ask that in your capacity as Attorney General, you may do two things:

1. Declare that all public servants, as a class of persons, enjoy the constitutionally implied freedom of political communication in their capacity as private citizens, whatever their platform of expression;

2, Take steps to have the breach decision in my case rescinded on that ground.

Yours sincerely

Michaela Barlow Banerji

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About lalegale

Legal and psychological advocate for freedom of political communication.
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