*This article was originally released in the Law Society Journal (2022).*

A High Court case has empowered the government to make statutes that silence individuals and groups, leading to a range of proposed laws that pose an existential threat to democratic debate. Without a right to free speech, Australians risk entering a new era of government censorship and silencing.

Introduction

In 2011, Michaela Banerji began posting thousands of tweets criticizing the government’s immigration policy under the Twitter handle @LaLegale. Banerji was an employee of the immigration department at the time, and when her employer found out about her Twitter account, she was fired from her job. Immediately, she took the government to court, arguing that, by firing her, they had violated her constitutionally implied freedom of political communication. What followed was one of the most significant free speech cases in Australian history.

In Comcare v Banerji (2019), the high court held that the implied freedom of political communication – the only constitutional right to free speech in Australia – does not apply to individuals or groups. “Even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication,” the judges wrote, “the law will not infringe the implied freedom of political communication unless it has a material unjustified effect on political communication as a whole.”

The government can now confidently silence individuals or groups by legislation. It can silence everyone in the country if it does so group by group, using individual laws to do so, so long as it writes them carefully. The only thing it cannot do is silence everyone at once in a single law, or other measures of a similarly wide magnitude. Indeed, the bar for what constitutes “political communication as a whole” is very high. The Banerji case silenced over two million public servants, or roughly 10% of the country. For the high court, this was not a big enough impact to constitute “political communication as a whole.” It is unclear what kind of law would be sufficiently big enough, or what percentage of the population would need to be silenced to suffice.

The Banerji decision, for all intents and purposes, has sounded the death knell for constitutional free speech protection in Australia. In reaching the decision, the court has effectively told activists, political campaigners, public servants, government scientists and teachers: ‘You are on your own.’ The long-running effects of this decision are numerous, and now becoming apparent. Empowered by Banerji, the government has ushered in a new era of censorship. Public servants, government scientists, teachers and charity workers have already been targets, and the list is growing. Various proposed laws seek to take this further, placing greater burdens on journalists and non-governmental groups to avoid speaking of certain topics that are politically sensitive to the government. Paired with newly standardized contracts in the private sector, that demand silence from employees in the media and on social media, Australia now risks entering an era where the only people allowed to talk about politics are politicians and private companies. It is unclear whether our democracy can survive this threat without a constitutional amendment to enshrine free speech for all.

The Decision

Beginning in 2011, Michaela Banerji wrote over 9,000 tweets criticizing the government’s immigration policy. All tweets were sent on her personal device, and all except one were sent outside of working hours. Banerji’s identity as a public servant was never disclosed, nor was there any information linking the account to her personally. For all intents and purposes, @LaLegale was an anonymous Twitter account. The court agreed with this label of “anonymous”.

A year after @LaLegale began tweeting, a colleague began to suspect that Banerji was the author of the account and filed a complaint. Under the Public Service Act 1999 (Cth), Banerji was required to behave “at all times… in a way that upholds the APS Values” (s 13(11)). This included the duty to act “apolitical” in the job, “in an impartial and professional manner” (s 10(1)). Collectively, these and other sections are known as the APS Code of Conduct. They are the guiding principles for those working in the government, otherwise known as the Australian Public Service (APS).

In 2012, the Australian Public Service Commission (APSC) updated its guidelines on social media to include the phrase “at all times”. This meant that the APS Code of Conduct could apply even in an employee’s personal life, outside of working hours. At the time, this was met with concern in the media, by the public service union. But the true ramifications were far broader than was publicly acknowledged at the time. The guidelines would amount to a total silencing of government employees when it comes to commentary on politics.

The immigration department launched an internal investigation into the complaint against Banerji’s Twitter account, finding that she did, in fact, breach the APS Code of Conduct. Based on these breaches, the department terminated her employment. Banerji immediately responded by launching legal action in the Federal Circuit Court, seeking an injunction of the termination decision.

In Banerji v Bowles [2013] FCA 1052, Justice Neville refused her application. The judge held that the “unbridled” version of free speech Banerji sought to rely on from the constitution “does not exist”. Our implied freedom, he explained, was not similar “to the First and Fourteenth Amendments of the Unites States’ Constitution, or Article 5 of the German Constitution, both of which provide expressly for a right of freedom of expression.” In Australia, there was no free speech protection that could protect individuals.

The government’s victory was short-lived, however. Banerji immediately went on to file a worker’s compensation case with Comcare. Comcare is the federal agency responsible for maintaining good working conditions in the public service and minimising the “impact of harm in the workplace”. In seeking recourse with Comcare, Banerji was alleging that she had been treated unjustly and unfairly, given her constitutional implied freedom. Comcare however, rejected her claim. They held that the government’s decision to terminate Banerji’s contract was a “reasonable administrative action taken in a reasonable manner,” as guided by the Safety, Rehabilitation and Compensation Act 1988 (Cth). A second internal review concurred. Banerji appealed this decision to the Administrative Appeals Tribunal (AAT).

In Banerji v Comcare, the AAT ruled in favour of Banerji, on the basis that her termination violated the implied freedom of political communication. The tribunal focused on the anonymous nature of Banerji’s tweets, stating that the law should not impose restrictions on what amounted to private thoughts voiced publicly. The court also found that “a comment made anonymously” could not reasonably be tied to someone’s professional work. Laws banning anonymous commentary would need to meet a much higher burden of proof, if faced with a public policy test:

A law purporting to prevent anonymous expressions of opinion, whatever the situation of the person using that medium, surely requires powerful and persuasive justification for its existence if it is to displace the implied freedom of political communication. Almost all of the public policy considerations underpinning restrictions on the statements of public officials, including senior public servants and military officers, cease to apply where the identity of the interlocutor is unknown. On the contrary, restrictions in such circumstances bear a discomforting resemblance to George Orwell’s thoughtcrime.

To impose a heavy cost on the exercise of political speech – the cost of being fired – was likewise viewed as excessive and unjustified in the circumstances.

The government, at this point, had two choices. They could accept the AAT’s ruling that they had gone too far in creating a “thoughtcrime,” or they could appeal the case. They decided to appeal to the high court. In Canberra, the high court unanimously ruled in favour of the government. The Public Service Act (1999), they held, did not impose “an unjustified burden on the implied freedom of political communication,” nor was Banerji’s termination unlawful. Comcare had already conceded in the AAT case that the APS Code of Conduct did in fact burden political communication. The high court found that this “concession was rightly made”. Justice Edelman described the burden as “deep and wide”. However, once a burden was established, the relevant test was in Lange:

1. Does the impugned law have a legitimate purpose consistent with the constitutionally mandated system of democratic government; and
2. If so, is the law reasonably appropriate and adapted to the achievement of that purpose. This process involves a structured proportionality exercise with three stages: suitability, necessity and adequacy in balance.

The court unanimously held that the APS Code of Conduct met both tests. Banning two million citizens from discussing politics was, in the court’s view, “consistent with the constitutionally prescribed system of representative and responsible government”. The law in question, the Public Service Act, had a legitimate purpose of “the maintenance of an apolitical public service,” a purpose which had already existed in Australia since Federation. The law was “appropriate and adapted” to its task as well. The Public Service Act provided a range of possible penalties, for a range of possible breaches of the APS Code of Conduct and allowed for due process. The law was therefore suitable, necessary, and adequate. On the question of anonymity, the court held that anonymity is no longer possible in the age of social media.

The reasoning above is, respectfully, incorrect on several fronts. The silencing of public servants does not directly relate to the legitimate purpose of maintaining “an apolitical public service”. In fact, in practice it has had the opposite effect. Silencing public servants has prevented the public from hearing about corruption, politicisation, and private backroom deals between political parties and corporations, that are against the public interest and/or illegal. Under the shadow of silence, the government has increasingly outsourced the functioning of government services to private actors: consultants, private committees, and public-private partnerships. John Halligan, from the University of Canberra, defines “politicisation” as the expansion of the political sphere over non-political realms. “The impact at the Commonwealth level can be seen in the sports rorts and car parks controversy, and at the state level in the current cases before ICAC in NSW and IBAC in Victoria.” The law has simply made the public less informed about what the government is doing on their behalf. Furthermore, since at least the Abbott government, public servants have complained about senior management in government departments being filled up with former party staffers. The actual politicization of the public service is occurring, with advisors of Ministers becoming department secretaries. It is unclear how silencing junior public servants prevents this real form of politicisation.

The Public Service Act is not adequate nor proportionate in practice. It is important to separate the theoretical use of the law from its actual use. Theoretically, the Public Service Act provides a range of proportional punishments. In reality, it does not. Public servants have been threatened with termination for simply responding to a government article with the wrong emoji face. Getting fired for posting a frowny face emoji is not a proportionate use of the law. The threat of termination has likewise created a slippery slope environment, where even minor mistakes at work in the public service are treated with fear and intimidation. Any comment runs the risk of getting fired; meaning that many public servants completely silence themselves, to avoid all risk. The effect of the legislation is total. The APSC, for example, does not recommend APS employees be careful about only some of their online actions, but all of them, regardless of the severity of those actions. The guidelines make it very clear that APS employees should live in fear of all posts, at all times:

We cannot always predict what will go viral, nor how our posts might be taken out of context. This means we need to be particularly careful about our engagement online, where our behaviour is more visible, more enduring, and much more likely to affect public trust in the public service — as well as our own professional reputation and credibility.

The inability of public servants to predict the effect of their posts means that, in practice, they must monitor and silence all posts. There is no proportionality to such an exercise.

After Banerji, anything written by public servants must go through their managers for veto, prior to publication. This veto process is highly political and in practice, amounts to censorship. Managers have been quoted as allowing articles that are positive of the government’s agenda, while banning articles that are negative, according to Christopher Knauss at The Guardian. The Public Service Act is not a neutral law; it is being enforced on a selective basis according to a political mandate. The government can pick and choose when to enforce it, at the discretion of individual managers. It is therefore not appropriate or adapted or fit for purpose. It is a political document, and therefore cannot create an “apolitical” public service. A discretionary law about what the government can and cannot silence is not an “apolitical” law. It is censorship by another name.

On the question of anonymity, the high court found that no one is ever anonymous online. The justices explained this ruling as follows:

as a rule of thumb, anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed. The risk of identification which justifies that rule of thumb is obvious, and it is borne out by the facts of this case.

The idea that online communication can never be anonymous is hardly “obvious,” nor is it clear why the court took a single case of a public servant and generalised it to the entirety of online communication. It is particularly concerning that no data, statistics, or other information was used in the declaration of this statement. Other anecdotal evidence leans in the exact opposite direction. In 2016, the anonymous author of the popular Neapolitan series of books, Elena Ferrante, was outed to the New York Review of Books. The journalist who outed her, Claudio Gatti, said that Ferrante was already a public figure, and this denied her the right to anonymity. What is more interesting however, is that Ferrante had remained anonymous for 25 years since her initial debut novel in 1991. Even in the online world, this shows that a popular author can remain anonymous for decades, across multiple terms of government and multiple administrations. The high court’s declaration that an author’s identity will always be revealed online is simply mistaken. There are dozens of examples abound across multiple industries that disprove this. In my own experience, I know of dozens of writers who write under pseudonyms, for fear of persecution from law firms, consulting firms, and the Australian government. I have known them for over a decade, and none of them have been uncovered. There is a corollary point: we don’t know what we don’t know. Authors may be writing under pseudonyms today that we don’t know about. It is impossible to prove this argument, but that’s the point: the court can only ever cite arguments in favour of censorship. The logic of what is “obvious” does not hold water. On social media, nothing is obvious.

The final point raised by the high court was the idea that the implied freedom of political communication does not apply to individuals or groups, only “political communication as a whole.” This repudiated the original reasoning in the high court’s earlier case of Australian Capital Television v Commonwealth (1992). In the original case, the high court read an implied freedom of political communication into the constitution on the basis that this was necessary for a representative democracy. To have the right to vote, the judges reasoned, we needed the right to speak freely about politics. The very nature of representative democracy required this accountability of representatives through public debate. The majority said it as follows:

Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion.

Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives.

In Banerji, the court ignored the needs of the citizen. It is impossible to draw a line between individuals and groups, on the one hand, and political communication as a whole, on the other, as the court attempted to do. Individuals and groups create political communication as a whole. Historical figures, such as Dr. Martin Luther King Jr., contributed to significant groups, such as the civil rights movement, which contributed to political communication as a whole, setting the agenda for nation-wide debate and eventually, civil rights legislation. This link between individual, group and civic engagement was recognized by the American judiciary at the time. In Edwards v. South Carolina (1963), for example, Justice Stewart wrote of a student civil rights protest, that their actions “reflect an exercise of these basic constitutional rights [to speech, assembly, and petition] in their most pristine and classic form.” That was on a small group of students. Giving the government the ability to silence individuals, such as Dr. King, and groups, such as the civil rights movement, would fundamentally end free speech. The high court was correct in their original judgment of 1992, a democracy without an individually assertable right to free speech, to talk back to and criticize our political representatives, is not a democracy at all. Our right to vote cannot be separated from our right to free speech. It is unclear how or why laws silencing individuals or groups are compatible with a representative democracy.

The Consequences

Michaela Banerji emerged from the high court in tears. She had suffered a great personal toll by taking on the case. For years, she had been motivated not by personal gain, but by the interests of her public sector colleagues. Many public servants had kids and mortgages, she said at the time in an interview, and they lived in fear that they would say the wrong thing online and lose their livelihood. “The only advantage of this case, in taking this action, was to affirm the role of freedom of speech for public servants. And we failed. It’s not just a loss for me, it’s a loss for all of us. And I’m very, very, very, sorry.”

The decision in Banerji had the immediate effect of revoking the rights of two million Australian citizens from talking about politics in public, or roughly 10% of the population. Any public servant who was caught commenting on politics, political parties, or the government of the day could be fired, without free speech recourse, under the Public Service Act (2018). According to the APSC, it did not matter whether the comments were posted anonymously or under a pseudonym, inside or outside of working hours, with or without a work-device, related to or unrelated to one’s APS job, and with or without a disclaimer stating that “the views expressed were my own.” Even the wrong emoji posted in reply to a government article could suffice. A frowny face could result in termination. Working for the government now had mandated facial expressions.

Since 2019, the federal government has used Banerji as a justification for silencing its political opponents. In 2020, the APSC enacted stricter social media guidelines, in the wake of the Banerji decision. Scientists, teachers, and other public-facing government workers bore the brunt of these changes. More than half of all environment scientists surveyed in an ABC poll of 200 government scientists, in 2020, said that they feared releasing their research to the public. This included research on climate change and the extinction of animal species. Two issues which affect national elections.”We are often forbidden [from] talking about the true impacts of say a threatening process … especially if the government is doing little to mitigate that threat. In this way the public often remains in the dark about the true state and trends of many species,” one respondent said.

Note how the government specifically targeted areas where they were “doing little to mitigate that threat,” in the environment. Again, this an indication that the Public Service Act is used in an explicitly political manner. In May 2020, Professor David Karoly, a 40-year veteran of the CSIRO, slammed the government for this approach. His own speeches on climate change were silenced and censored, limited to the fact of warming, rather than government policy. When he tried to comment on the issue of science suppression itself, he was silenced again. “It was a classical catch-22. They suppressed my commenting on a paper that said there was suppression of science.”

Meanwhile, the government’s proposed changes to The Charities Act (2022) are seeking to prevent charities from engaging in political discussion. Charities who engage in political activity would engender new reporting and compliance procedures. This specifically aims to add red tape to the most vocal and activist of charities, such as refugee advocacy groups, climate groups and labour activists. Under the new bill, charities would be deregistered if a single volunteer commits a summary offence. This includes a volunteer attending an unlawful protest, or committing an offence at a protest, such as the use of offensive language or indecent behaviour. The effect of this law would be the mandated regulation of volunteers by charities. In practical terms, charities would have to ban their employees from attending political protests. These are not accidental by-products. When the government passes a law that specifically targets its political opponents, there is no real justification for the law in a democratic society.

Without a recourse to the implied freedom, challenges to controversial censorship legislation has now become impossible. The Border Force Act (2015), for example, made it an imprisonable offence for journalists to receive documents from immigration detention. The punishment is two years in jail. The same rule applies to detention sources. Immigration routinely effects national elections, and yet there is a law on the books criminalizing reporting on it.

As another example, the National Security Legislation Amendment Act (No. 1) 2014 made it a crime for journalists to report on information received from whistle-blowers on national security, with a ten-year jail sentence. There is no public interest defence. New laws will likely be enacted as an extension of this, implicitly silencing journalists and directing them away from certain topics of coverage. Indeed, a proposed new ASIO bill, for example, would allow the interrogation of journalists on national security without a warrant. Journalists have long faced intimidation, but it has gotten worse in recent years. In 2019, the Australian Federal Police raided ABC offices and the home of News Corp journalist Annika Smethurst, based on articles that relied on leaks by government whistle-blowers. “By the time the raid was over, the police had downloaded 89 documents onto two USB sticks.” The High Court found that the search warrant for the case was illegal but allowed the police to keep the evidence. In effect, this may allow the police to use illegally obtained evidence in future prosecutions. The law has not been changed to prevent future raids.

The effect of Banerji on defamation law has been just as profound. Without a recourse to the implied freedom, several high-profile cases have showcased how individuals are increasingly being silenced directly by politicians. In Dutton v Bazzi [2021] FCA 1474, the home affairs Minister Peter Dutton sued a refugee activist for calling him a “rape apologist” on Twitter. Dutton won the case and was awarded $35, 000 in damages. NSW Deputy Premiere John Barilaro sued satirical commentator Jordan Shanks for various comedic videos on YouTube. The case was settled out of court. Finally, in Fairfax Media Publications Pty Ltd v Voller (2021), media companies were held liable for defamatory public comments on their social media accounts. Immediately, several media companies stopped allowing public comments below their articles. This ended a form of public debate. In all three cases, defamation laws are being used to silence and intimidate members of the public from making public political commentary.

Beyond the government, Banerji has also entrenched longstanding restrictions on free speech in the private sector. Standardized contracts across professional services firms now include a media clause and social media clause. The “media clause” stipulates that: employees should not talk to the media without permission from a superior. This permission is barely ever given, according to two sources I spoke with at major Sydney law firms. The “social media clause” stipulates that: employees will be held responsible for comments they post on social media, even outside of working hours. The two clauses, combined, amount to an effective ban on public discussion of policies even tangentially related to one’s work. Bear in mind that many professional services firms work directly with the government, meaning that these clauses prevent public criticism of government policies. Even in the private sector then, free speech is being silenced.

“Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech,” wrote Benjamin Franklin. In America, the First Amendment to the constitution enshrines the right to free speech as a fundamental right of the population. The constitution, as a document, makes very little sense without the first amendment. In Australia, the same circumstance applies. Our right to vote cannot be neatly separated from our right to talk about politics, before, during and after an election. Voting in silence is not voting at all.

The fact that millions of Australians can no longer talk about politics in public without fear of reprisal from the government or private actors moves us away from a free and fair democratic society, and towards a society where only certain viewpoints get heard, and therefore only certain politicians get elected. The future of our democracy depends on all Australians regaining the right to free speech, regardless of their profession. The only way to achieve this, in my view, is a constitutional amendment.

There are some hesitations about enshrining free speech in the constitution. These hesitations can be answered in the amendment itself. Exceptions for hate speech, and limited forms of defamation, can be provided. What is important is to protect political speech, speech related to the government, politicians, political actors, and the political actions of private companies. This is the kind of speech that should not be silenced in our country. Without free speech, we risk continuing down the road of government censorship.

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Follow me on Twitter: @JoshKrook

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