Free speech, the public service and civilising behaviour published in The Age on Tuesday 8 April 2014 by Tim Wilson, Human Rights Commissioner
Reply: Michaela Banerji, LaLegale, lawyer and former public servant.
Mr Wilson writes:
Before anyone screams “free speech”, they should actually know what they are talking about.
That the author uses such a strident word as “screams” creates a discomfort at the outset. It foreshadows an uncomfortable, if not unpleasant and discouraging exegis, which proves to be the case.
No one I know has “screamed” free speech although many have discussed, analysed and written about it. In my case, I have been particularly interested in the implied of freedom of political communication that arises out of the constitution, on the grounds that we cannot have a democracy if citizens were prohibited from being critical of our ministers and parliamentarians. And many argue that it is public servants, above all, who have a responsibility to be critical of government, because they know what the public doesn’t know.
The Department of Immigration and Citizenship declared by its actions, that even if we can rely on Michael Kirby J’s statement from the High Court bench that all Australians enjoy this freedom, public servants as a class of persons, even when speaking as private citizens, are not permitted this freedom, and that in fact, they will be sacked for exercising this freedom.
Earlier this week the Department of Prime Minister and Cabinet released new social media protocols.
The protocols limit the capacity of public servants to make statements that are “harsh or extreme in their criticism of the government, government policies, a member of Parliament from another political party … [and] a gratuitous personal attack that might reasonably be perceived to be connected with their employment”, among others.
The APSC guidelines to which Mr Wilson refers, are a tripwire for public servants. I have shown this clearly in my analysis of the guidelines.
In response there have been cries that this code limits free speech. Yesterday Jenna Price wrote in Fairfax outlets that as “HenchCommissioner” I did not “leap in defence of our gentle, analytical and astute public servants”.
Sigh. Since taking the office of Australian Human Rights Commissioner I have gleaned many new insights into the state of human rights in Australia. One of the most important insights is that many Australians seem to have no idea what human rights are, and many certainly do not understand what free speech is.
Do we expect such condescension from our Commissioner? If many Australians do not understand what are human rights, or do not understand what is free speech, then it may well be because there needs to be much more ventilating of these concepts in the public domain.
Price also said I “backed the reforms”. This is factually inaccurate. It is not my place to endorse individual codes, but I have outlined that voluntary codes attached to employment conditions are not inconsistent with free speech.
In Australia, the employment contract must not be inconsistent with constitutional freedoms. If it does, then the employment contract is invalid to the extent of that inconsistency.
Defending the universal human right of free speech is about the legal limits of speech. It is about when the law stops someone expressing their view. It is not about voluntary conditions we accept when we take employment. Conditions that are entered into through employment are not the same as the law.All speech is legal, until it is made specifically illegal. But just because something is legal, it does not mean it is acceptable. For instance, it is legal to be homophobic, but it is not acceptable.
Codes of conduct play an enormously important role in filling the gap between what is technically legal, and civilising and normalising behaviour.
Voluntary codes associated with employment are one of the most important ways that we regulate the conduct of the individual without laws, and they are fundamentally a good thing.
When Mr Wilson talks about restrictions on free speech on grounds of employment contracts, he may well be referring to employment law in the United States of America, where, I understand, one may contract OUT OF one’s constitutional freedoms and rights. However, in Australia we have a different situation. We have a constitution that places strict limits on legislation. Any law in this country that is inconsistent with the constitution, is invalid to the extent of that inconsistency. What this means is that any employment contract, or any statute such as the Public service Act 1999 which is inconsistent with our constitutional, is invalid to the extent of its inconsistency. Simply put, the employment contract cannot ‘trump’ the constitutional freedom.
Even the Australian Human Rights Commission, a body charged with defending free speech, has social media protocols for staff to preserve and protect the dignity of the institution.
It follows, that any social media protocols that exist for the Australian Human Rights Commission, must also permit the constitutional freedom. Any term of employment of employee sof the Australian Human Rights Commission must not be inconsistent with our constitutional freedoms, if those protocols are to be valid.
Codes of conduct include requiring people to not act in a sexist, homophobic or racist way. If people do, and it is connected back to their employer, they can face disciplinary action, or be terminated.
At any time an individual no longer believes that they can abide by these standards they have the choice to terminate their employment.
If there is any aspect of Mr Wilson’s article that evokes a passionate response is where he says that public servants who desire to criticize government are free to terminate their employment. While this might apply to someone in private employment, it does not apply to public servants, because public servants have a responsibility to the public. That is why they are called ‘public servants’. Indeed, Mr Wilson seems to imply that it is more wrong for a public servant to criticize government, than it is for that government department to sack her in contravention of constitutional principles. This is in fact, what has happened, but it is wrong.
Codes attached to employment in the private sector cannot limit free speech because they are voluntarily entered into as a requirement of employment.
Again, to repeat, the contract of employment, in Australia, may not contravene the constitutional freedoms. In the USA, I understand that persons may contract out of their constitutional freedoms, but one may not do that in Australia. It is a serious flaw that the Freedom Commissioner should make such a misleading statement.
Public service codes are not the same. They operate in a “grey space” because the government is the employer.
Excessive restrictions can fundamentally undermine a public servant’s capacity to exercise their full democratic participation, but if they are too loose they can undermine the important perception of impartiality.
When a public servant writes a submission on proposed policy, that public servant MUST write the pros and cons of the proposal so that the person making the decision can make a rational decision. It can never be reasonably suggested that a public servant who presents two sides of an argument in a submission is not impartial. The very fact that the public servant can see both sides of the argument is an indication of impartiality. It is a logical fallacy to conclude that a public servant who criticizes government is not able to carry out his or her work impartially.
For instance, public servants are allowed to be members of a political party and participate in the democratic processes of the nation.
But they are not allowed to work for the Department of Health by day and moonlight as an anonymous journalist critical of the Department’s work by night. Social media is fundamentally no different to any other platform. It is still public.
This is a sophistic example. A public servant may work for the department of health during the day, and criticise health policy by night either anonymously or not, either at the pub, or on Facebook or Twitter. A public servant doing so, will run the risk of contravening other legislation if he or she defames, or engages in racial vilification, but our discussion is concerned with the public servant being free to criticize government as a private citizen.
Similarly, it is not unreasonable that there is an expectation that public servants act in a respectful manner in the public domain if they want to remain employed. Even with the current protocols, public servants can make statements that are negative about government policy.
While this sounds fine on its face, the Department of Immigration has shown, by its terminating a public servant’s employment, that even when being respectful, that public servant who was criticizing asylum seeker policy as a private citizen was not permitted to stay employed while making statements critical of government policy on asylum seekers, even when being respectful.
But there are justified limits to what an employer can reasonably accept when public comment crosses the line.
Under the APSC guidelines on on-line participation, no public servant will be sacked for making complimentary comments about his or her government department employer on social media. So when the manager of the Communications Branch makes obviously and grandly complimentary comments about the department’s policies, can he be said to be acting impartially?
Imagine the justified outrage if a public servant was caught holding the “Ditch the Witch” sign at the Convoy of no Confidence protests, or “F— Tony, F— Democracy” at March in March.
The danger here, given the ambiguous instructions of the Australian Public Service Commission guidelines on on-line participation, is that although extreme examples are easy to identify, more subtle examples may not be. As a consequence, whether a person is sacked or not, depends upon one person’s subjective view of what is critical, or what is not critical and there is danger in this, especially where the decision maker is not well versed in good decision-making in accordance with the administrative law guidelines.
Of course those individuals have every right to express those views, but it doesn’t mean that the public service need continue to be associated with such vile conduct.
It seems that Mr Wilson is having difficulty comprehending that one may be critical while at the same time being caring, logical, constructive and creative. That he uses an example of “vile” conduct to discuss the freedom of political communication is an example of using a sophistic instrument, which is designed to chill argument, rather than advance argument.
Some have argued that if the conduct is anonymous then it should be excluded from the code, but that is absurd. That is like arguing that the public service should not terminate someone’s employment if they are involved in offences outside of work hours because they did it anonymously.
Although there has been much discussion of the LaLegale case around the idea of being anonymous or not (particularly for some who are concerned with legality of covert surveillance), under the implied freedom, it would not matter whether the public servant was speaking anonymously or not. In fact, the public servant is free to speak in his or her own name, while even declaring the public servant employment status.
Voluntary codes of conduct attached to people’s employment are consistent with free speech. They play a vital and important role in civilising public behaviour and establishing norms of respectful conduct.
Codes of conduct are not relevant in this context. If they contravene the constitutional freedom, then the code of conduct is invalid to that inconsistency. Mr Wilson’s comments in this regard are misleading.
They operate no differently in the public service, except they should be specific to an employee’s area of work to ensure that they do not limit a public servant’s capacity to engage in democratic processes.
In the public service, the Public Service Act which legislates the Code of Conduct, must not contravene the constitution, and, to the extent that it contravenes public servants’ freedom to criticize government as private citizens, is invalid to the extent of that inconsistency.
Tim Wilson is Australia’s Human Rights Commissioner.
Michaela Banerji is a lawyer and former public affairs officer in the Department of Immigration and Citizenship, now the Department of Immigration and Border Protection.
Tim Wilson’s article also appears on the Australian Human Rights Commissioner website at: https://www.humanrights.gov.au/news/opinions/free-speech-public-service-and-civilising-behaviour
 In this analysis I have reproduced Mr Wilson’s comments in italics, and have written my responses in non-italic
 See WordPress entry