Australia is becoming increasingly intolerant of speech. From the Australian Rugby Union terminating Israel Folau’s playing contract to the fake controversy about the impending visit of British writer Raheem Kassam to attend the Conservative Political Action Conference in Sydney, examples of a growing outrage culture mount every day.
Adding to this list is today’s decision by the High Court to unanimously uphold the sacking of a public servant for posting criticism of government policy using an anonymous Twitter account. Michaela Banerji had been employed at what was known at the time as the Department of Citizenship and Border Protection (it is now part of the Department of Home Affairs) but was fired when it was discovered she was running the account, which she had used to comment on immigration policy and the detention of asylum seekers.
The Administrative Appeals Tribunal originally found that the sacking violated Banerji’s constitutional implied right to freedom of political communication, but the High Court held that the restrictions placed on public servants’ freedom of speech by the Australian Public Service code of conduct are proportional to the public’s right to have an apolitical public service that can be trusted to administer the policies of governments no matter the results of elections.
What should concern Australians about this decision is not whether the High Court interpreted the law correctly—a unanimous decision suggests the court had no doubt about that. Instead, what we need to start thinking about is whether we want to have a country in which codes of conduct for employees purport to govern such a wide range of speech. Moreover, we should wonder whether we can have democratic government if every time anyone says anything about anything, we jump all over each other.
It is this concern that links this case to other recent free speech issues. Banerji’s case is distinguishable from Folau’s case on the grounds that her commentary was directly related to her job, but his was not. Recall that Israel Folau was sacked for his esoteric religious beliefs (he thinks more or less all of us will burn in hell), but even if it is true that rugby is the game they play in heaven, this does not make the Australian Rugby Union a religious organisation. On the other hand, Banerji was employed to implement government immigration policy and her social media activity seemed to suggest that perhaps she was not able to perform that function properly.
A narrow reading of this case to the effect that public servants must refrain from commenting on policy directly related to their employment is appropriate. But as a general rule, it cannot be the case that the 1.9 million Australians who work in the public sector (or even just the subset of those who work under this particular code of conduct) must refrain from political commentary altogether. That would be far too broad. As is often the case with freedom of speech issues, those cheering a decision to silence someone on one day often end up bemoaning the silencing of another person on another day. For example, though it is sometimes forgotten, many public servants do have conservative views and so this is a decision that neither side of politics can be complacent about.
As with the phoney Kassam issue, the main point to take from today’s decision is that we need to rediscover some robustness in the face of disagreement. We should have enough faith in one another to believe someone can and will faithfully perform a task despite disagreeing with it, and we should worry less about the possibility that someone, somewhere holds a view different from our own. We should do this not because of any silly belief that even stupid speech is somehow edifying, but because the alternative, a world of speech codes and outrage and constant checking on one another, is simply exhausting. An online activist herself, Banerji contributed to the outrage culture, and so she ought to reflect on whether she herself helped set the petard that has hoisted her into unemployment.
Andrew Bushnell is a Research Fellow with the Institute of Public Affairs.