One of the tweets posted by Scott McIntyre.

Ask any citizen if they have a right to freedom of speech and they will robustly assert "yes, of course" . However, under Australian law, there is no such formal legal right. While, in practice, everyone is free to say and write whatever they like, this freedom is significantly qualified by exceptions. Prohibitions abound in respect of statements that are libellous or slanderous, in contempt of court, a breach of copyright, obscene or seditious, or that incite mutiny, commission a crime or disclose official secrets.

Unlike all other common law countries, Australia has no bill of rights and few laws to protect the right to freedom of speech. In the absence of express protection under the Australian Constitution, the High Court has recognised an implied right to freedom of political communication as a necessary element of representative democracy. So far so good. But, the right of political communication is not a personal right for citizens. Rather it is a constitutional limit on the legislative powers of Parliament. In short, a right of political communication constrains governments, but it is not the right of an individual citizen.

In the Banerji case, the Federal Court confirmed the general law that rights are "not unbridled or unfettered". The court was cautious in the extreme, saying that: "even if there be a constitutional right [to freedom of political communication], it does not provide a licence to breach a contract of employment".

The court concluded that the political comments tweeted while Banerji was employed by the Department of Immigration are not protected by the asserted implied right to freedom of political expression. Influencing the court's decision were provisions of the Public Service Act 1999 to the effect that an employee "must at all times behave in a way that upholds the good reputation of Australia", and must behave honestly and with integrity and avoid any conflict of interest. In addition to the contract of employment are the Australian Public Service Code of Conduct and departmental social media guidelines. It did not help Banerji's case that her tweets occurred while she was working for another employer, without the permission of the Department.