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Case of the twittering immigration employee

By Crispin Hull - posted Monday, 7 October 2013

Let's hope the Case of the Twittering Immigration Employee (Michaela Banerji) has not ended with her dismissal. The rights of all public servants are at stake here.

Banerji was dismissed by the Department of Immigration on the grounds that her anonymous Twitter account tweets breached the Australian Public Service Code of Conduct.

Banjeri unsuccessfully sought orders in the Federal Court last month to prevent the department from sacking her, arguing – as a self-represented litigant -- that the code was contrary to her constitutional right to freedom of political expression.


The matter needs to be properly argued. The limits of public servants' freedom of speech are important.

The case was muddied by extraneous allegations of bullying and other employment-related matters.

The critical point is to what extent should our public servants be excluded from the political discourse in our representative democracy.

Banjeri's submission that the constitution provides a personal right to freedom of speech was rejected because the cases simply do not support that proposition. The High Court has made it plain that the Australian Constitution does not provide a right to free speech along the lines of the First Amendment to the US Constitution.

Rather the court has struck down statute law and changed the common law in cases where they are incompatible with the functioning of the representative democracy provided in the Constitution.

The argument runs as follows: The Constitution sets up a system of representative democracy. That implies not mere voting, but informed voting. Informed voting requires a free flow of information on political matters.


So to the extent that any law is inconsistent with the intended operation of the constitutional system of government it will be read down or held invalid.

Outside the admittedly broad political sphere the Constitution does not guarantee any freedom of speech.

In any event, freedom of speech in any liberal democracy, even in those countries where it is constitutionally guaranteed such as the US and Germany is not unlimited.

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This article first appeared in The Canberra Times on 5 October 2013.

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About the Author

Crispin Hull is a former editor of The Canberra Times, admitted as a barrister and solicitor in the ACT and author of The High Court 1903-2003 (The Law Book Company). He teaches journalism at the University of Canberra and is chair of Barnardos Australia, the children’s charity. His website is here:

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