APSC Circular 2012/1: Revisions to the Commission’s guidance on making public comment _ an analysis

Under its heading, “Making public comment”, the revised APSC Circular 2012/1: Revisions to the Commission’s guidance on making public comment and participating online states:

“APS employees have the same right to freedom of expression as other members of the community, subject to legitimate public interests, such as the maintenance of an impartial and effective public service in which the community can have confidence.
The term ‘public comment’ is used broadly, and includes comment made on current affairs at public speaking engagements, during radio or television interviews, on the internet (including blogs, social networking sites and other online media that allow user participation and interaction), in letters to the press, in books or notices, in academic or professional journals and in other forums where the comment is intended for, or may be accessed by, the community.

I was proud to be a public servant because as a public servant I felt that I was playing a small role in helping to run my country. I am an immigrant to this country, and it was important for me to participate in this way. My parents were most grateful to have the opportunity to come to Australia in the 1950s and they always valued and respected the country that had welcomed them. It was hard for immigrants then, but it was hard for everyone in Australia after the war.

When I hear people criticising public servants I ask them to imagine how our society might be without the public service. How would we be sure of the Torrens Title on our home? How would we make sure that our car was up to performance standard. Who would assist us if our family was injured? How would traffic be on the roads. Would there be roads?

But lately my integrity as a public servant has been severely tested and as a result, I have been asking myself a number of questions. What was my role as a public servant? How did my role as a public servant mesh at the edges with my role as an individual private citizen? Did my role as a public servant in a democracy such as Australia, vary from the role of a public servant in another country with a different political environment? In a democracy, how much could I, as a public servant say and do, vis-à-vis my democratic environment, whether during an election period or not.

The High Court has determined that all Australian’s have what is referred to as an “implied freedom of political communication” arising out of the constitution. That freedom may be ‘burdened’ with legislation which restricts that freedom, but the “burden” needs to be reasonable, adapted and to a legitimate end.

The reason that the High Court found such an implied freedom of communication is that without citizens being free to express their views of government and its departments and representatives, to even go so far as to criticise (yes, criticise) government and members of parliament, a democracy simply could not function.

Freedom of communication on matters of government and politics is an indispensable incident of the system of representative government. Our Constitution creates such a representative government by directing that the members of the House of Representatives and the Senate shall be “directly chosen by the people” of the Commonwealth and the States, respectively.

It follows from this that as the word ‘discussion’ includes criticism: citizens must be free to criticise government and its process if we do not agree with what government is doing. But does this apply to all citizens, or only to those citizens who are not public servants.

What happens when a public servant wants to criticise the very government department in which he or she is employed. Is she allowed to criticise that department? Some would say that she should just resign and let someone else have her job. A suggestion worthy of exploration no doubt, but I venture to suggest that this solution might be rather impractical because people change their minds, governments change their policies and it might well be that at any given time, fifty per cent of a government agency might have to resign.

For example, on the ABC News recently, it was reported that 50 per cent of public servants do not approve of the PNG arrangement for asylum seekers. I imagine that some of those 50 per cent of public servants may be employed in the Department of Immigration and Citizenship. Should they all resign? Does the Secretary of the department not approve of the government’s PNG arrangement. If so, should he resign? I don’t think so.

The recently issued APSC revised guidelines advance the merits of the freedom that public servants have to express an opinion in a public forum. The APSC guidelines include online participation in their expression of ‘public forum’. The guidelines discuss an employee’s rights and obligations in making comment on that public forum.

This revised guidance has been incorporated into the document APS Values and Code of Conduct in Practice – APS employees as citizens which refers readers interested in participating online to chapter 3, “Making public comment” and “Participating online”.

The guidelines begin benignly enough: Under the heading “Making public comment” they state that APS employees have the same right to freedom of expression as other members of the community. That sounds fair enough, but then they add a proviso: “subject to legitimate public interests”. They then go on to define that “legitimate public interest” as being “the maintenance of an impartial and effective public service in which the community can have confidence”.

A number of questions are begged here. How does one prove a public interest? How does one prove a legitimate public interest? Is there a public interest which is not legitimate? How does one prove impartiality? How does one prove effectiveness? How does one prove or disprove whether the public service is one in which the community has confidence?

Most importantly for the purpose of this discussion, how can it be proven whether an individual public servant has either contributed or failed to contribute to these desired outcomes, when even the outcomes cannot be defined with certainty? And even when these outcomes cannot be reasonably attributed to the single effort of a single public servant.

While the objectives appear honorable, they do not meet the SMARTA criteria of being measurable and reasonable.

Furthermore, how will someone, looking for someone to blame, decide on its failure to the extent that the failure will be correctly attributed to one poor employee – no doubt someone who already has been browbeaten through a process of victimisation and mobbing for some time.

A contributor to the current discussion about the case Banerji v Bowles suggests: “If he pays you wages that supply you your bread and butter, work for him – speak well of him, think well of him, stand by him and stand by the institution he represents”. I would agree with that comment completely in a situation of private business. However, and this is where we get to the nub of the matter, life is rather different for public servants.

One of those differences is that public servants have a loyalty to the public—a loyalty that an employee in a private business does not have. One might say that a public servant has divided loyalties—to be loyal to the agency in which she is employed, but at the same time, to be loyal to the public that she serves as a public servant.

I recently heard a report on the ABC news, that 50 per cent of public servants do not approve of the PNG offshore arrangements. That is an interesting number, and surprising too, even to me. So why am I, who has a conscientious objection to offshore processing as being contrary to our international law obligations, the only person in my department or elsewhere in the public service, who has said so—with the result that I have been sacked for making a statement on my password protected Twitter account as a public citizen.

I wonder whether it is not more damaging to our democracy to have 50 per cent of public servants who disapprove of PNG processing yet keep silent. To paraphrase a commentator on Banerji v Bowles, Conversation on 12 August, we may simply end up with a situation where the only public servants we have in this country are those who are too afraid to speak. Is that “a legitimate” end?

The APSC guidelines make a distinction between “public” public comment and “private” public comment – that is, comments that are made in an official capacity speaking on behalf and for the employer, and comments that are made unofficially, in either a private or professional capacity. If you are confused, don’t worry, so was I when I first read this. I will try to explain.

The guidelines state that outside the role of their APS employment, employees may wish to make public comment in a professional or a private capacity. I take this to mean that if I were to be addressing an out of hours psychoanalytic conference on the psychological dimensions of attachment, I would be considered to be making a public comment in a professional and private capacity. However, to do this, I need to get my manager’s approval.

Further, when delivering that address, I need to explain to my audience that I am not speaking on behalf of my employer. The APSC guidelines say that APS employees may generally make public comment in a private capacity, so long as they make it clear they are expressing their own views.

Well that sounds fair enough. But wait, there’s more. When expressing our own views, we should have regard to certain “general principles”. In summary, this is how it goes.

As a public servant I had to behave at all times in a way that upholds the APS Values. Furthermore I had to behave in a way to uphold the good reputation of the APS.

When using my personal, Twitter account, for example, it was not appropriate for me to make comment that was being made on behalf of the employer or the government, or any person might think I was making on behalf of my employer or the government. I needed to make sure that I was clear about my tweet being an expression of my own personal view.

However, my tweet must not have been one that might give the reader an impression that I may not be able to fulfil my employment duties in an unbiased manner. What’s more, I had to be especially careful of this if I should be making a comment about policies and programs of my agency.

What does this all mean? It all begs so many questions!

The APSC guidelines are written in such a way to suggest that a public servant may not make comment (for this read ‘criticise’) the policies and programs of one’s own agency, not because there may not be substance to that criticism, but that such a criticism is an indication that the public servant herself, evidently lacks the capacity to work professionally, efficiently or impartially.

In other words, if I criticise my employer department, the correct interpretation according to the APSC guidelines is that I am incapable of doing my job. There is no suggestion of course, that the agency may be acting in a way that is wrong or unethical and that I as a public servant loyal to the public, may be required to make that criticism.

So we can be clear. The APSC guidelines specifically direct a public servant to not criticise an agency or its clients or other stakeholders because such criticism may compromise public confidence in the agency or in the public service generally.

At the same time, the APSC guidelines tell me that it is quite acceptable for a public servant to take part in the political life of the community. While the APS values stipulate that the APS is among other things, ‘apolitical, performing its functions in an impartial and professional manner’, this does not mean, they say, that a public servant must be apolitical in private affairs.

Rather, it means that a public servants should avoid behaving in a way that suggests that they cannot act apolitically or impartially in their work. The problem with this is that the judgment about whether public servants can act apolitically or impartially in their work does not depend upon the substance of what they do or say, but upon the interpretation made by a third and unknown party.

Section 13(11) of the Public Service Act 1999 states that when APS employees are making public comment in an unofficial capacity, it is not appropriate for them to make comment that is, or could be perceived to be being made on behalf of their agency or the Government, rather than an expression of a personal view.

Thus, I could conclude that if I on my Twitter account, whether in my own name or a pseudonym, explain that my tweet is an expression of a personal view, I should consider myself safe.

Except that I am not safe.

When using my Twitter account I needed to reflect upon whether the comments I made, could reasonably be expected to cause my clients and other stakeholders, including members of Parliament—whether members of the Government, the Opposition, independents, or other parties—to lose confidence in my ability to work in an impartial and professional manner.

I needed to consider whether my tweet would, without proper justification, be likely to lower or undermine the reputation of my department, or of the public service as a whole. I needed to ask whether the tweet I was about to compose in line with the way that the community in general expects the public service to operate and behave. I needed to consider whether the tweet that I was composing was lawful in that it complied with anti-discrimination legislation and laws relating to defamation?

If I did not meet all these criteria, my tweet may be deemed inappropriate public comment and sanctions may be applied to me. One of those sanctions is termination of employment. And after Banerji v Bowles, that is what has happened to me.

But then, unexpectedly, the APSC guidelines take another tack. Referring to the May 2010 Government response to the Final Report of the Gov 2.0 Taskforce, Engage: Getting on with Government 2.0. The Government agreed to the report’s central recommendation—a ‘declaration of open government’—which stated, in part: online engagement by public servants, involving robust professional discussion as part of their duties or as private citizens, benefits their agencies, their professional development, those with whom they are engaged and the Australian public. This engagement should be enabled and encouraged.

Wow! That’s amazing! On Twitter I was permitted, nay encouraged, to be involved in robust professional discussion as a private citizen, because to do so would benefit my employer and would benefit the Australian public!

Suddenly we have moved from a position of it not being OK to use Twitter, to it being so OK to use Twitter that by doing so it actually benefited my employer and benefited the Australian public.

But I have to wonder whether the expression ‘robust professional discussion” includes criticism? It would have to, wouldn’t it? How can one have a robust discussion without also at times, being critical?

The guidelines say: “Employees may make public comment on, for example, blogs, social networking sites, microblogging sites, and online news sites”.

So the question remained. If I, as a public servant, was permitted to make public comment (in private capacity) on blogs, social networking sites, micro-blogging sites and online news sites, in order to participate in robust discussion, did that permission extend to my being able to make critical comments?

To extend this further, could I, as an employee of the department of Immigration and Citizenship, use my Twitter to criticize the department’s PNG arrangements—arrangements which strike me, as a private citizen, to be very unwise policy on a number of grounds?

The APSC guidelines are concerned whether my critical comments mean that readers will be either undermined in their confidence in the APS or undermined in their confidence in my ability to do my work impartially?

There is not much risk for me if I am commenting online in an official capacity. In fact, such communications is increasingly being encouraged by persons such as Sandi Logan, also known as the Twitter King, showing government departments the communication value of social media.

The APSC guidelines state that Web 2.0 provides public servants with unprecedented opportunities to assist the Government to open up government decision-making and implementation to contributions from the community, and that many agencies use social media to engage with the communities they serve.

Not every public servant has access to social media, and agencies are finding that they need to provide guidance, training and support for employees on how to communicate appropriately in such forums, including any rules or policies about representing their agency online (for example, whether employees must identify themselves and their agency when participating online in the course of their work).

Interestingly, participating online in an official capacity demands that a record be kept. So, the question can be asked whether the department of Immigration and Citizenship (now Border Protection) is keeping records on its online communications?

It seems that the real risk arises when public servants makes comment online in an unofficial capacity, either during working hours or in their own time.

The APSC guidelines say that public servants may participate robustly in policy conversations, just like other members of the Australian community, and that they may do this on a micro-blogging site. So they may use their Twitter accounts, whether in their own name, or whether anonymously, to make private comment in a public forum – their Twitter followers constituting that “public forum”.

Public servants could infer from this that they are free to use their Twitter account with abandon, in their own time after work. They could be sure that Section 13(11) of the Public Service Act 1999 does not fetter their constitutional freedom of political communication in a democracy.

But wait! Not quite…

The APSC guidelines set out limitations to that freedom. First, the rules that apply to public servants making unofficial public comment at a meeting also apply to their tweeting. They must still uphold the APS Values and Code of Conduct when tweeting, whether or not they are using a pseudonym, and whether or not they describe themselves as public servants in their Twitter profile.

The Guidelines make a general rule of thumb that irrespective of the forum, if public servants post material online they should make an assumption that at some point their identity as a public servant and the nature of their work as a public servant will be revealed. And that’s when things get rather confusing.

The APSC guidelines have a problem with their public servants’ identity being revealed on Twitter. But why should that matter if public servants are free to make comment on their account in their own time? The APSC guidelines have a problem in that their work as public servants will be revealed. Again, why should that matter?

The great and absurd leap of logic that is made at this point, is that the very revealing of public servants’ names and the very revealing of their being public servants on Twitter is a game changer. The result: If they tweet, whether or not they use their own name, and whether or not they reveal that they are public servants, they must not criticize their government and must not criticize the APS. In other words, criticise your agency and you are in breach of Section 13(11) of the Public Service Act 1999

But wait a minute! How does this fit with the instructions that public servants are encouraged to participate in robust discussion because it is a good thing for everybody?

And this is where we get to the contradiction in the guidelines and the contradiction for public servants. Public servants may engage in private robust discussion, but in that robust discussion, they may not criticise government – either their own agency or any other agency, for to do so is to breach Section 13(11) of the Public Service Act 1999.

And thus we get to the end of the discussion and we get to the essential contradiction of the APSC guidelines on commenting online in an unofficial and private capacity.

Public servants may participate in robust political discussion online, whether in their own name or with a pseudonym, whether in their own time or during work time, provided that they do not criticise their agency or any other agency—provided that they do not criticize government.

The problem is that this contradicts the definition of ‘robust political discussion’ and in my view, contradicts the implied constitutional freedom of political communication in a democracy.

It follows that the APSC guidelines and Section 13(11) of the Public Service Act 1999 inadvertently create a class of persons, public servants, the only class of persons in this country to be deprived of the constitutionally implied freedom of political communication.

During the course of these events, I formed the view that Section 13(11) of the Public Service Act 1999, IS a burden on the implied freedom to the extent that it does not permit criticism of government. As such, it creates a whole class of persons, public servants across this country, who are not free to criticise government whether in their own name or anonymously, whether during a political campaign or not – who may not criticize government at all times.

In my view, to create such a class of persons is not a legitimate end, and therefore neither a reasonable nor adapted burden on the freedom, and to that extent, it fails the test in Lange and is, consequently, invalid, rendering moot any question of breach of the Code of Conduct.

Postscript

In Australia, the freedom of political communication is not a ‘personal right’ as it is in the United States. In Australia, the freedom of political communication is implied from the Constitution, and any law, which fetters that freedom may be deemed invalid unless the law is reasonable, adapted, and to a legitimate end.

Such is the test which is described in the High Court case Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 574.

Translated to the APS problem, we can suggest that before Section 13(11) of the Public Service Act 1999 is alleged to infringe the requirement of freedom of communication imposed by the Constitution, two questions must be answered before the validity of the section can be determined.

First, does Section 13(11) of the Public Service Act 1999 effectively burden the freedom? Second, if Section 13(11) of the Public Service Act 1999 effectively burdens that freedom, is Section 13(11) of the Public Service Act 1999 reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government, referred to as “the system of government prescribed by the Constitution”.

If the answer to the first question is “yes” (imagine for the sake of argument that it IS a burden) and being a burden, the answer to the second question is “no” (imagine for the sake of argument that it IS “no”) then the PS Act, at least as it is interpreted by the APSC guidelines, is invalid.

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About lalegale

Legal and psychological advocate for freedom of political communication.
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