Yesterday, the High Court handed down its judgement in the case of Comcare v Banerji, in favour of Comcare's appeal which argued that it was reasonable for the Department of Immigration & Border Control to sack Ms Michaela Banerji.
This case relates to the termination of Ms Banerji's employment after it was discovered that using an unrelated twitter handle, she posted multiple criticisms of Australia's asylum seeker policies. The case in principle is about the extent to which public servants can freely express their political views and by inference, the extent to which an employer has the right to quash someone's independent right to free speech in a private capacity.
In a unanimous decision, the High Court upheld Comcare's decision to sack Ms Banerji on the basis of those same social media posts. The court held that despite the implied freedom of political communication which might be laid out in the Constitution, that implied freedom "is not a personal right of free speech".
As has been emphasised by this Court repeatedly, most recently before the Tribunal's decision in this matter in Brown v Tasmania, the implied freedom of political communication is not a personal right of free speech. It is a restriction on legislative power which arises as a necessary implication from ss 7, 24, 64 and 128 and related sections of the Constitution and, as such, extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution.
Accordingly, although the effect of a law on an individual's or a group's ability to participate in political communication is relevant to the assessment of the law's effect on the implied freedom, the question of whether the law imposes an unjustified burden on the implied freedom of political communication is a question of the law's effect on political communication as a whole. More specifically, even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication, the law will not infringe the implied freedom of political communication unless it has a material unjustified effect on political communication as a whole.
- Comcare v Banerji, High Court of Australia (2019)
To be honest, I find the decision quite chilling. Not only has the court held that the implied freedom of political communication is not a personal right of free speech but within that unanimous judgement is the warning that anyone who posts on social media should assume their identity and public employment will be revealed. I especially do not like the language employed that says that social media posts comes with an "“obvious risk" and that "even 'so-called anonymous tweets' can damage the public service"; which shifts the power between employer and employee even further to the side of an employer. I need not remind people that there is currently a bill before the House of Representatives which was set in place with the decidedly doublespeak name of the Ensuring Integrity Bill 2019, which is little more than the Morrison Government's attempt to interfere with union affairs, and give power to both government and employers to shut down organisations and sack their appointed leaders.
This was also on the same day that the Small Business Ombudsman Kate Carnell called for changes into unfair dismissal laws and for a new Small Business Division of the Fair Work Commission. She also asked for a push to cut the rates of compensation paid to unfairly sacked workers.
Small businesses can’t afford to engage in costly and stressful legal action. They don’t have the support of a HR department when faced with the difficult decision to end a staff member’s employment.
“That’s why it’s critical for the code to drive fairness, and set out clear expectations for small business employers.
“By taking the ambiguous language out of the Code such as ‘reasonable grounds,’ ‘valid reason,’ and ‘reasonable chance’ and improving the checklist questions, small businesses will be in a much better position to comply.
- Kate Carnell, Australian Small Business and Family Enterprise Ombudsman, 6th Aug 2019
All of that also sounds like doublespeak.
If you remove the words "reasonable grounds", "valid reason", and "reasonable chance" from the Fair Work Act 2009, then that opens the field for any small business owner to fire any employee, for no reason whatsoever.
Given that Ms Carnell was Chief Minister of the ACT during the Royal Canberra Hospital implosion and probably had words with the Coroner before they cleared her of any personal responsibility, that that her department breached the Financial Management Act in relation to the Bruce Stadium redevelopment in 2000, and has had a career as an attack dog in various government and private positions after then, my only conclusion is that she wants to strip the rights of small business employees.
In short, there isn't a personal right of free speech in Australia and the law could be changed to allow small business to fire you without cause.
YOU CAN AND WILL BE FIRED WITHOUT RECOURSE IF WE HAVE OUR WAY.
ABANDON HOPE ALL YE WHO ENTER HERE.
The other high profile case which is about the question of law here, and to what degree an employer has over their employees acting in a private capacity, is between Rugby Australia and Israel Folau.
Comcare v Banerji has now found that as an implied freedom for political communication "is not a personal right of free speech", then Rugby Australia can indeed fire someone for something they said on social media, which is unconnected to their work. I imagine that that will please many people who would like to see Folau shamed in the court of public opinion but it now says that you too can be fired for something that you say on TwitBook, WhatSpace, MyTwit and FaceApp and you employer has every right to do so.