Civil servant fired for criticising government on Twitter wins case

Civil servants in Australia can criticise the country's government on Twitter, so long as they do it under a fake name and outside of work.

That's the latest result in the case of a former employee of Australia's immigration department, Michaela Banerji, who was sacked for misconduct in 2013 after posting anonymous tweets that were highly critical of her department and the government's refugee policy.

Banerji made a claim for compensation due to depression and anxiety that was brought on by her firing — and on Monday, she won.

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She told the Administrative Appeals Tribunal of Australia (AATA) that the motivation for her tweets "was essentially to explain the obligations that our country holds in relation to the Refugee Convention."

"Think of the deaths we are responsible for in Iraq! Think of the refugees we have created by our invasion of Iraq!" read one tweet, posted by the username @LaLegale. "Where states fail to offer legal asylum to refugees, that state fails. #itsnotwelfare," reads another.

The compensation claim was initially denied because the firing was deemed to be a reasonable action, but on Monday, the AATA overturned the rejected claim.

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Banerji had argued she had a constitutional right to freely engage in political discussion, and the AATA agreed.

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Her firing by the department had "unacceptably trespassed on the implied freedom of political communication," and therefore was unlawful, according to the tribunal's deputy president Gary Humphries and member Bernard Hughson.

Since Banerji had made an effort to ensure her tweets were anonymous, it effectively dispelled the department's argument that the comments would make her appear biased or unprofessional.

"A comment made anonymously cannot rationally be used to draw conclusions about the professionalism or impartiality of the public service," Humphries and Hughson noted.

"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."

Furthermore, Banerji had tweeted outside of work hours, not at work, and not on work equipment — except in one case where she retweeted a critical comment about the department, although the tribunal found it to be still anonymous.

Humphries and Hughson said department efforts to restrict anonymous comments by its employees would be like a "thoughtcrime," as per George Orwell's 1984.

Banerji had presented her case to Australia's High Court in 2013, where an injunction to prevent her sacking was turned down.

Judge Warwick Neville said at the time her constitutional right to free political expression did "not provide a licence ... to breach a contract of employment."

The ruling is significant for Australia, given the new social media guidelines introduced last year for the country's civil servants, which stipulate that “liking” or “sharing” a post that’s critical of the government could result in disciplinary action.

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