On Aug 7, 2019, Australia’s highest court made a landmark ruling in the common law area on the political rights of a civil servant. The court ruled that the sacking of a public official for writing tweets which criticized government policies was lawful.
In 2013, as an employee of the Department of Immigration and Border Protection, now part of the Department of Home Affairs, Michaela Banerji was fired for her criticism of the nation’s controversial immigration programs in tweets expressed under a pseudonym, La Legale. An investigation found her to be in breach of the Australian Public Service Code of Conduct, which requires civil servants to, at least, appear to be politically impartial.
Between 2006 and 2012, Banerji sent more than 9,000 tweets while working for the government. The tweets were often critical of government policies, such as banishing refugees who attempt to reach Australia by boat to camps on the poor neighboring Pacific island nations of Papua New Guinea and Nauru.
One month after she was dismissed in September 2013, Banerji lodged a claim for workers’ compensation for a post-traumatic stress disorder that she blamed on her termination. The government decided that the dismissal was a “reasonable administrative action” and turned down her request.
The fundamental principles of neutrality and loyalty to the government of the day govern the relationship between the civil service and the executive. How a civil servant’s political right as guaranteed under the Basic Law to be limited by the Civil Service Code should be clarified ... It’s particularly important to protect the Hong Kong civil service’s reputation for political neutrality in the current politically sensitive and socially volatile climate
Banerji appealed that decision to the Administrative Appeals Tribunal, arguing that her tweets were “entirely anonymous”, did not disclose departmental information, and she sent the tweets using her private phone and not during office hours.
The Australian constitution does not explicitly protect freedom of expression. But the High Court had previously ruled that an implied freedom of political communication exists in Australia because that is essential in a democracy. The tribunal upheld her appeal and her right to political discussions, but the government appealed her case to the High Court.
The unanimous decision of the seven High Court judges to overturn the lower court’s decision means that the decision is likely final and the case closed. The decision not only rules out any prospect of compensation for Banerji, it also sets a landmark case in jurisprudence on the freedom of speech for a civil servant.
The court ruled that Banerji’s dismissal had not breached the constitution, citing rules that public servants “must take reasonable steps to avoid any conflict of interest (real or apparent)” with their employment. The civil service rules around the use of social media and making a public comment are not unreasonable and do not infringe on her right of free speech. The decision expanded the meaning of “apolitical” and “apparent conflict of interest” requirement on civil service. It decided that she had never disclosed in her tweet “that it was operated or endorsed by a member of the public service” is a reasonable basis for her dismissal, the missing identification bespeak of non-disclosure of material interest while possessing insider information. The fact that the posts were sent from a personal device and almost exclusively in her own time are not valid grounds to challenge her termination from government service.
The Community and Public Sector Union, which represents civil servants, said the decision could potentially affect almost 2 million Australians who work for the federal, state and local governments. The decision will limit their usage of social media to express their political views and had serious implications for free speech.
This case in Australia is relevant to the situation in Hong Kong today. The well-publicized anti-extradition bill rally on Aug 2, attended by some civil servants and government medical personnel, opens the question on Hong Kong civil servants’ right to political expression. To what extent can they express their political views while carrying the title of their official positions outside working hours is a focal point, and the jurisprudence of the Australia High Court decision can help to shape the answer to this question. Both Hong Kong and Australia practice common law and share a lot of similar legal lineage.
Former secretary for the civil service Joseph Wong Wing-ping held that the rally was not a violation of the city’s Civil Service Code. Many others expressed the contrary view that the rally participants had violated the impartiality provision of the code. If one studies carefully the interpretation of the Australian High Court on “apparent conflict of interest”, it’s clear that the civil servants at the rally had violated the code.
There are a number of anonymous letters from government employees in recent days that added to the confusion. Chief among which was the leaked letter from self-proclaimed prosecutors who claimed that the secretary for justice had violated the internal department guidelines for prosecution. They claimed that the department had unfairly charged some anti-extradition demonstrators under the stern riot offense, and others under the less severe unlawful assembly offense. The Justice Department denied the allegation, but the damage is done to the government’s reputation in upholding the rule of law.
The fundamental principles of neutrality and loyalty to the government of the day govern the relationship between the civil service and the executive. How a civil servant’s political right as guaranteed under the Basic Law to be limited by the Civil Service Code should be clarified. The Australian ruling can help the incumbent secretary for the civil service to clarify the issue. It’s likely detractors will challenge the secretary’s decision in the Hong Kong court, and the Australian case can serve as a useful reference. It’s particularly important to protect the Hong Kong civil service’s reputation for political neutrality in the current politically sensitive and socially volatile climate.
The author is a senior visiting research fellow at the Cambodian Institute for Cooperation and Peace. His primary research interest is Chinese economic development, ASEAN-China relations and the Fourth Industrial Revolution.
HONG KONG NEWS