A measure of justice for an Australian tweeter

The win won’t eradicate the sustained personal stress or financial difficulties that such an unfair dismissal imposed – still it was pleasing see this tweeter's actions recognised as the right to freedom of political expression.

Hopefully Comcare will not be so bloody minded as to appeal the judgement,

The Sydney MorningHerald, 18 April 2018:

A  former Immigration official sacked over tweets critical of Australia's asylum seeker policy has won a fight for compensation, after an appeals tribunal found her dismissal was unlawful and described government efforts to restrict anonymous comments from its employees as Orwellian.

The decision on Monday will redirect scrutiny to the Immigration Department's dismissal of Michaela Banerji for tweeting criticisms of detention policies, and challenges Australian Public Service rules stopping public servants from expressing their political views on social media.

Ms Banerji took the government to the Administrative Appeals Tribunal after federal workplace insurer Comcare refused to compensate her for the psychological condition that developed after she was sacked in 2013 over tweets from a pseudonymous Twitter account.

The tribunal overturned Comcare's decision and found she suffered depression and anxiety that could be classed an injury under federal compensation laws.

Ms Banerji was working in the Immigration Department when co-workers learnt she was behind the tweets railing against the government's treatment of asylum seekers.

She lost a high-profile attempt to stop her dismissal in the Federal Circuit Court in 2013, a decision seen as likely to curtail other bureaucrats' use of social media when judge Warwick Neville found Australians had no "unfettered implied right (or freedom) of political expression".

In a case that Ms Banerji's lawyer Allan Anforth from Canberra Chambers said could have implications for other public and private sector employees, the AAT said Comcare's refusal was based on a dismissal that was unlawful because it intruded on her right to free political expression.

Her tweets, made from the Twitter handle @LaLegale, were anonymous and did not disclose confidential departmental information, but an internal investigation in 2012 found she had breached the code of conduct for government employees.

In a submission to the tribunal, Mr Anforth said the tweets were posted from her own phone and, in most cases, outside work hours.

The appeals tribunal found the Immigration Department itself had identified Ms Banerji after she posted anonymously, and said guidelines stopping public servants from publicly criticising the government should not be applied to anonymous comments.

"A comment made anonymously cannot rationally be used to draw conclusions about the professionalism or impartiality of the public service," it said.

"Such conclusions might conceivably be open if the comments were explicitly attributed to, say, an unnamed public servant, but that hypothetical situation does not apply to Ms Banerji."

The tribunal found Ms Banerji appeared to have taken care not to have used information which could only have been in her possession as an Immigration employee.

It lashed the government decision to sack her, saying it "impermissibly trespassed upon her implied freedom of political communication", and "with a law only weakly and imperfectly serving a legitimate public interest".

"The burden of the code on Ms Banerji’s freedom was indeed heavy – the exercise of the freedom cost her her employment.

"In our opinion, there is no significant justification available to the employer here for the law which exacted that cost."

Comcare is considering the tribunal's decision. The findings could be appealed in the full Federal Court…..

THE PEOPLES DEMOCRATIC RIGHT TO PROTEST: High Court of Australia, BROWN & ANOR versus THE STATE OF TASMANIA, 2 May 2017

BROWN & ANOR versus THE STATE OF TASMANIA, High Court of Australia, Canberra on 2 May 2017 at 10.15 am before the full court:

BROWN & ANOR v THE STATE OF TASMANIA (H3/2016)

Date Special Case referred to Full Court: 13 December 2016

The issue in this proceeding is whether the Workplace (Protection from Protesters Act) 2014 (Tas) (‘the Act’), in whole or in part, contravenes the implied freedom of political communication in the Commonwealth Constitution.

The plaintiffs were each arrested and charged, purportedly under the Act, in early 2016 as a result of their onsite political protest against the proposed logging of the Lapoinya Forest in Tasmania. The respective criminal proceedings against them were abandoned by the police after the commencement of this proceeding. The plaintiffs contend that the Act is either wholly invalid or, at the least, is invalid in so far as it applies to forestry operations on forestry land as defined in s 3 of the Act.

The Act allows police officers to prevent the commencement or continuation of an onsite political protest that they reasonably believe is preventing, hindering or obstructing or is about to prevent, hinder or obstruct a "business activity" at any "business premises" or "business access area" as defined in s 3 of the Act, anywhere in Tasmania. The key provisions empower police officers to prevent the commencement or continuation of onsite political protests by directing the protesters to leave and stay away from business premises and business access areas for up to three months under pain of arrest and of criminal penalties if they do not do so.

The plaintiffs contend that ss 6 and 7 of the Act target and single out for prevention and punishment onsite political protest and protesters without any broader purpose of preserving, enhancing or protecting political communication. Further, they contend that no reasonable provision has been made in the Act to preserve or protect political communication.

The defendant contends that the Act protects (amongst other things) business activity lawfully carried out on land in the lawful possession of a business operator, and that the plaintiffs are seeking to prevent, hinder or obstruct activity of that nature. They submit that the Act does not restrict protest activity on land other than business premises or business access areas; it has a narrow operation and effect; it is compatible with the freedom and is in any event reasonably and appropriately adapted to the fulfilment of a legitimate purpose.

On 13 December 2016 Gordon J referred the Special Case for consideration by the Full Court. Notices of Constitutional Matter have been served. The Attorneys-General for the Commonwealth, Victoria, New South Wales, Queensland, and South Australia have filed Notices of Intervention. The Human Rights Law Centre has been granted leave to appear as amicus curiae, limited to submissions in writing.

The question in the Special Case is:

• Is the Workplace (Protection from Protesters) Act 2014 (Tas), either in its entirety or in its operation in respect of forestry land, invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?