A former public servant who was sacked after the government discovered she had been using an anonymous Twitter account to criticise Australia's refugee policies has won a tribunal battle for worker's compensation, more than four and a half years after her employment was terminated.
Michaela Banerji was sacked from her position in the Department of Immigration and Citizenship (now Home Affairs) in September 2013 for using her then-anonymous Twitter account @LaLegale to post tweets criticising the government, Australia's refugee policies, and her work supervisor.
She launched a case for worker's compensation on the basis she had suffered from an adjustment disorder characterised by depression and anxiety as a result of being fired, but it was rejected by Comcare, a government agency covering workplace issues for public sector employees, in 2014.
Now, the Administrative Appeals Tribunal (AAT) has ruled in Banerji's favour on review, after several years and proceedings in different courts.
In a decision handed down on Monday, AAT deputy president Gary Humphries and Dr Bernard Hughson found that Banerji's sacking had "unacceptably trespassed" on the implied freedom of political communication and was unlawful.
The fact Banerji's tweets were anonymous effectively stripped away the justification for the Australian Public Service (APS) code of conduct – that is, protecting the impartiality of the APS – that Banerji had contravened, the AAT found.
"A comment made anonymously cannot rationally be used to draw conclusions about the professionalism or impartiality of the public service," Humphries and Hughson wrote.
The decision also noted that "powerful and persuasive justification" is needed for any law that displaces the implied freedom of political communication.
"The burden of the code on Ms Banerji’s freedom was indeed heavy — the exercise of the freedom cost her her employment," they wrote. "In our opinion, there is no significant justification available to the employer here for the law which exacted that cost."
The AAT ruling referenced George Orwell's book 1984 while criticising the notion of restricting anonymous speech from public officials.
"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," he wrote.
"On the contrary, restrictions in such circumstances bear a discomforting resemblance to George Orwell’s thoughtcrime."
A selection of Banerji's tweets were published in the AAT decision — most of them in relation to Australia's offshore detention regime and refugee and asylum seeker policies.
@SandiHLogal Substance: asylum. Process: Rule of Law. Result: onshore processing #nodetention @inhumane @nooffshoreprocessing
@whitegirlinasia Where states fail to offer legal asylum to refugees, that state fails. #itsnotwelfare @SandiHLogan
Offshore processing is unlawful...IMHO “@janafavero: Wilkie will not sign @OakeyMP Bill...reignite offshore processing http://tiny.cc/he82aw”
When a nation state permits eighty-six percent of detainees to suffer mental health problems, it #fails. Understanding #itsnotwelfare
DIAC doesn’t see the steps: 1. Is Oz first place of asylum? 2. Is person security cleared? 3. Is person risk persecution? #getitright
@ScottMorrisonMP @jasonclaremp I would prefer you were reading the international convention on refugees! And understanding it!
@NorthcoteIND @abc730 Neither of the parties get it: What are our obligations under international law? #auspol @senatormilne
The tweets did not convey any private information Banerji had gleaned from her job, but rather made comment and criticisms of public information and allegations against the government.
Of around 9,000 tweets from Banerji, who the AAT described as a "prolific tweeter", just one was found to have been posted during working hours — a retweet of a tweet posted by a different user criticising Banerji's supervisor, Sandi Logan, for his "rude response" to a tweet of Banerji's.
Banerji's lawyer Allan Anforth told BuzzFeed News his client had shared views held by many Australians.
"What she was talking about was the government’s refugee policies," he said. "I would have thought that a great many Australians would share her view about how bad and inhumane those refugee policies are."
He backed the Orwell reference, saying: "Those guidelines are just really draconian, and I think the deputy president of the AAT was right to say it was the thought police gone too far."
Anforth said that as Banerji is over the age of 65 she is not eligible for back pay from Comcare, but the agency would have to cover her medical expenses.
In 2013, before she was sacked, Banerji made the freedom of political communication argument before the Federal Court in a bid to stop her dismissal, but she was unsuccessful.
Regarding the AAT's decision, she told BuzzFeed News: "All I can say is that I was arguing for this decision – the implied freedom of political communication – before [Justice Warwick] Neville in 2013. Had he made the decision then, it would have saved so much pain and damage."
Anforth floated the possibility that Comcare will appeal the decision to the full Federal Court — but, he said, that would not necessarily be a bad thing, as the AAT decision is not binding on Australian courts.
"I don’t mind if they appeal it, because if it stays at the AAT level, the AAT is a creature of the executive in the constitution, it’s not part of the judiciary," Anforth said.
"[The APS] could officially ignore it and next time keep just doing what they want to do. In that sense, I hope they do appeal so it gets a further ruling by a court that they’re bound by."
A spokesperson for Comcare told BuzzFeed News the agency was considering the decision.