Australian High Court scraps free speech for workers

Mike Head

Australia’s supreme court this week handed down a ruling that essentially abolishes freedom of speech for workers, whether in government or corporate employment. With no dissent, the seven High Court judges endorsed the sacking of a federal public servant for criticising—even anonymously—the country’s brutal refugee detention regime.

After a six-year legal battle, the court overturned a tribunal decision that Michaela Banerji was unlawfully dismissed in 2013 for allegedly breaching “code of conduct” restrictions that bore “a discomforting resemblance to George Orwell’s thought-crime.”

The judges reinforced previous High Court rulings that a so-called constitutional implied freedom of political communication “is not a personal right of free speech.” In other words, there is no protection of free speech in the 1901 Constitution.

Like many other workers, including public servants, Banerji was outraged by the Gillard and Rudd Labor governments’ revival of the Howard Liberal-National government’s “Pacific solution”—the indefinite detention of asylum seekers in barbaric camps on Nauru and Papua New Guinea’s Manus Island.

Using the pseudonym “LaLegale,” she posted thousands of tweets condemning the violation of Australia’s international legal obligations to refugees. In one typical tweet, she denounced the “deaths and agonies of unlawful, immoral and destructive IDCs [Immigration Detention Centres].”

Banerji’s identity was discovered when departmental officials examined a folder on her desk in 2012. She was sacked for violating provisions in the Australian Public Service (APS) Code of Conduct that said “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.”

Taken together with police raids on journalists, the court’s ruling is part of an assault on working class free speech under conditions of escalating war tensions, trade war, economic slump, austerity measures and corporate attacks on workers’ jobs and conditions.

Not only is the verdict a direct threat to the fundamental democratic rights of almost two million federal, state and local government employees, including school teachers, nurses and other healthcare workers.

According to workplace law experts, it sends a similar chilling message to all workers. Most of them also confront rules forbidding them from expressing any opinion that could allegedly damage their company’s reputation.

By the logic of the High Court, workers could be lawfully victimised for condemning any of their employer’s actions—even closures, sackings and wage cuts.

Christian Porter, the Liberal-National government’s attorney-general, who sent Banerji’s case to the High Court, welcomed the outcome. But it is a bipartisan attack. The moves to sack Banerji began under the last federal Labor government, and the Western Australian Labor government joined the High Court test case, along with two other state governments.

Banerji had won a workers’ compensation case when the Administrative Appeals Tribunal found her sacking breached the constitutional implied freedom. But the High Court declared that the tribunal misinterpreted the implied freedom as a right of “free speech.”

The seven judges dismissed the fact that Banerji, who worked in the Immigration Department, adopted a pseudonym to show she was posting in a personal capacity, disclosed no confidential departmental information and did all her posting (with one exception) in her own time.

Justice Stephen Gageler, in fact, declared that someone posting material anonymously was conducting a “clandestine” operation against the political establishment. To permit that would undermine “the confidence of the Government, the Parliament and the Australian public in the APS as an apolitical and professional organisation.” No APS employee could be allowed to criticise the policy of the government “or of a political party which might then or later be represented in the Parliament.”