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Folau and the public servant case - they are different

The case of public servant Michaela Banerji, who has lost her bid not to be sacked for online commentary, is significantly different from the Israel Folau case, according to Associate Professor in Law Neil Foster.

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“Many will see similarities with the dismissal of footballer Israel Folau for comments he shared about the Bible’s view of morality, but as we will see, while somewhat factually similar, the cases raise quite different issues,” Foster says on his Law and Religion Australia blog.

Eternity reports the main features of Foster’s analysis with his permission.

Ms Banerji was an employee of the Department of Immigration and Citizenship. She produced some 9000 tweets under the pseudonymous twitter “handle” @LaLegale. Her identity was reported by a colleague to her department. She was then sacked in 2013 for breaching the Australian Public Service (APS) code of conduct. Foster describes the code of conduct: as requiring “that an APS employee ‘(11)…at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS’”.

The majority judgment summarises the situation this way: “Guidelines explaining how this was intended to operate included that:

“it was not appropriate for a Department employee to make unofficial public comment that is, or is perceived as, compromising the employee’s ability to fulfil his or her duties professionally in an unbiased manner (particularly where comment is made about Department policy and programmes) … ‘[a]s a rule of thumb, irrespective of the forum, anyone who posts material online should make an assumption that at some point their identity and the nature of their employment will be revealed’”.

After a lengthy path through various tribunals, Banerji finally lost her legal action against her sacking  in the High Court yesterday. Foster reports “The issue at stake proved to be whether the rules under which she was dismissed were not ‘reasonable’ because they breached the implied freedom of political speech under the Constitution.”

The court found that the APS Code of Conduct met tests of “Suitability” (rationally connected to its purpose; “Necessity” (is there an alternative way to achieve the purpose)  and “Adequacy in balance” (is the  benefit sought to be achieved by the law manifestly outweighed by its adverse effect on the implied freedom).

“Applying this carefully structured test to the provisions of the APS Code of Conduct, the plurality (the justices in the majority) held that it was an important and central feature of the public service that it be ‘apolitical”’ (hence this was a ‘legitimate purpose’), and the rules in question had a rational connection to that goal; there were no obvious alternatives, and their benefit was not outweighed by the costs to the public servants, since there was a carefully structured set of possible penalties, such that not every minor breach would lead to automatic dismissal,” Foster reports.

Foster sees some similarities to the Folau case: “an employee dismissed after making controversial comments on social media, allegedly contrary to a code of conduct, and allegedly in part at least on the grounds that the comments would bring the employer into disrepute”.

But he sets out an argument that there are significant differences.

“But that is pretty well as far as the connections go, legally. The Banerji case involves a public servant whose very duties required her to be involved in immigration policy; by contrast, Mr Folau’s job was to play football, and his comments did not relate to his primary duties. Ms Banerji was employed by the Commonwealth government, whose rules are clearly governed by the implied freedom from the Constitution; Mr Folau by a private organisation not subject to that restriction in the rules it makes for its employees.

“In particular, the legal basis for Ms Banerji’s claim was quite different to that which it seems has been put forward in Mr Folau’s case. Mr Folau is relying, not on protection for “political” speech, but on principles forbidding religious discrimination under section 772 of the Fair Work Act 2009 (Cth). Despite the failure of Ms Banerji’s claim, Mr Folau’s case remains to be tested by the courts under quite different principles.”

The Foster analysis can be read in full here.

The High Court judgment is here.

 

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