Public Servants and the Constitutionally Implied Freedom of Political Communication
Mr Towell journalist, who writes for the Public Service Informant in the Canberra Times, wrote on 30 May 2016, that the CPSU is claiming that “Public servants are being silenced by a politically motivated push to keep them from speaking out ahead of July’s federal election”.
According to Mr Towell, the CPSU has warned public servants to watch their Facebook likes and shares during the election campaign. Apparently, Defence Force personnel have been told they will be punished if caught electioneering in uniform.
One would assume that this warning forms part of the union’s own recently published guide on how public servants can make political statements and keep their jobs. And here is the problem – the conflating of three significant elements: public servants; political statements; job security.
For a young public servant who has a mortgage to pay and children to send to school, there is something rather terrifying at this conflation of elements. Yet, there is nothing in Mr Towell’s article that will assist the public servant to understand the true situation here, and will assume that it is better to steer clear of any political communication for who would want to risk, their livelihood just for expressing a political opinion. By doing so, that public servant succeeds in disenfranchising himself from the political process. That’s how people are silenced.
The really alarming aspect of Mr Towell’s article, and of the persons he quotes, is that there is no mention at all of the Constitutionally Implied Freedom of Political Communication. Yet, it is the very thing that would give a public servant clarity and hope.
While in the Banerji v Bowles 2013 case, the court did not see itself fit to make a declaration on this particular point, in the recent case of Gaynor v ADF 2015, the court upheld the constitutionally implied freedom of political communication. This was a huge win for all public servants, yet the CPSU has made no comment about this at all as far as I know, nor has the APSC made any comment as far as I know. I guess that it is not in their interest to make anything of that decision, for by doing so they would lose the very strategic tool, the very stranglehold, which they can use to keep public servants silenced.
I would say to Mr Towell, to Ms Flood and to Mr Lloyd, that it is you who are complicit in denying public servants the freedom of political communication through your failure to clearly articulate the decision of the court.
Like it or not, understand it completely or not, in Australia, the court has upheld the constitutionally Implied Freedom of Political Communication for public servants to engage in the political process as private citizens.
What this means is that public servants may use their own social media platforms, to speak as private citizens, to make comment in the political process, and they may not be punished for doing so. The argument that the APS Code of Conduct prescribes certain behaviour does not trump the constitutional freedom.
Yet, these lies, these ambiguities, these “trip-wires” are peddled by those who have the most to lose, and those who have the largest responsibility to convey the truth about the situation.
Ms Nadine Flood of the CPSU, Mr John Lloyd of the APSC and Mr Towell journalist for the Canberra Times, are betraying public servants and the general public by failing to use their power and authority to tell the truth about the freedom of public servants to participate in the political process as a private citizen.
These are three players who are involved in silencing public servants. None of them are telling the truth about right of public servants to engage in the political process as private citizens. They are three agencies who are peddling a vicious lie upon the public and who should know better. It is incumbent upon Mr John Lloyd and Ms Flood and Mr Towell to accurately understand, and to accurately address the constitutionally implied freedom of political communication for public servants as private citizens. Only by doing so may they remove the Damocles Sword from over the heads of pubic servants—that is, if they really wish to do so.
It is a travesty of our political freedoms to suggest to public servants that they may not engage in the electoral process as private citizens. To do so during an election campaign is entirely perfidious.