It’s often said one should never discuss politics, sex or religion at a dinner party. The latest news out of the Wonderful World of the Public Service certainly seems to attest to the wisdom of that simple sentiment.

Code of Conduct - Politics

Photo by Stephen Mayes, Unsplash

In 2012, Ms Michaela Banerji, who was then a public servant in the employ of the Department of Immigration, took to Twitter to express her personal take on the Federal Government’s policies on asylum seekers. After watchful co-workers apparently reported her somewhat critical comments to management, Ms Banerji found herself under investigation for suspected breaches of the Australian Public Service Code of Conduct. The Code, set out in the Public Service Act, requires public servants to “at all times behave in a way that upholds APS values,” and one such value is, apparently, an obligation to be ‘apolitical.’ As a result, Ms Banerji was ultimately sacked, and an injunction application to the Federal Circuit Court, aimed at saving her job, was sadly dismissed.

Personally, I couldn’t help feeling some sympathy for poor Ms Banerji. In a previous life, I was once employed by a London-based company to undertake marketing activities for various governments and other substantial corporate interests worldwide. One of our clients was the regional government of a good old state tucked away way down south in the old US of A, and I was appointed to head up a team tasked with writing and updating content for the State’s social media page focused on selling the destination to potential tourists. Naturally, it was all pretty light-hearted stuff, with lots of sunny locales and funny fluff pieces featuring pretty girls and wide open spaces. Well, for the most part. Unfortunately, a colleague and I one day stumbled over a news story about the young presidential aspirant President Barack Obama’s plan to visit a town smack bang in the beating heart of our client’s state. So naturally, we figured this was a perfect puff piece for our platform. After all, who didn’t like Barack Obama?

The answer to that question is, as it turns out, pretty much every last punter ever to register a vote in our client’s state. Unfortunately, in the flush of our youthful enthusiasm, we forgot to check the electoral scorecard before we pressed “send”. Note to self – if you want to stay gainfully employed, never discuss politics, sex or religion on social media.

When Michaela Banerji appealed her dismissal to the Administrative Appeals Tribunal, the decision to sack her was overturned as unlawful. In so ruling, the presiding members of the AAT declared the APS Code of Conduct’s purported limitation on Ms Banerji’s speech was unconstitutional, noting that the “restrictions in such circumstances bear a discomforting resemblance to George Orwell’s ‘thoughtcrime’.” So the case has now been referred to the highest court in the land for determination of the crucial constitutional issue of whether a public servant has the right to freely express their own political views in a public forum.

Meanwhile, until the High Court comes down with its landmark decision, I personally would recommend the safest course as being to stick to the tried and tested old adage.

Brendan Nyst
Director, Dispute Resolution and Litigation Lawyer

Brendan Nyst - Director

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