Public Servants Gagged by New Social Media Rules

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No free speech

New social media rules released by the Australian Public Service Commission seek to prohibit public sector employees from criticising government policies on platforms such as Facebook and Twitter.

The rules

The new rules were published on 7 August 2017 under the title, ‘Making public comment on social media: A guide for employees’.

They advise public servants of their “particular responsibilities under the Public Service Act 1999”, warning that:

“Criticising the work, or the administration, of your agency is almost always going to be seen as a breach of the Code. The closer your criticism is to your area of work, the more likely this will be.”

The document cautions that:

“Criticising your Minister, or the Prime Minister, is just as risky as criticising your agency. Equally, criticising your shadow Minister, the leader of the Opposition, or the relevant spokesperson from minor parties, is also likely to raise concerns about your impartiality and to undermine the integrity and reputation of your agency and the APS generally.”

It points out that:

“There’s nothing to stop your friend taking a screenshot of that email, including your personal details, and sending it to other people or posting it all over the internet…”

“In fact, there’s nothing to stop your friend from forwarding your email directly to your employer and reporting your behaviour.”

It even cautions against joining certain online groups, stating:

“People will draw conclusions about you and your ability to work impartially from a range of factors. This can include the nature of any online communities that you join.”

The document claims that simply ‘liking’ a post that is critical of government or opposition policy, or failing to delete a post that has been shared to your page can amount to a breach of public sector employment conditions and attract disciplinary action, emphasising that it does not matter whether the activity occurs outside working hours, or under a pseudonym.

It warns that accounts operated under a pseudonym – or false name – can easily be linked back to employees through a digital footprint.

By the same token, the rules point out that it is permissible for public servants to praise employers and their policies:

“This doesn’t stop you making a positive comment on social media about your agency…”.

Union’s response

Community and Public Sector Union national secretary Nadine Flood says the rules represent government “overreach”, and fail to strike a balance between protecting the impartiality of the public service and allowing individuals to exercise free speech and engage in matters of political importance.

“There’s a certain irony that John Lloyd, who has been highly political in his time as APS Commissioner, won’t even let the rest of the 155,000 people working in the public sector ‘like’ something on Facebook if he doesn’t like it,” Ms Flood stated.

The Greens, meanwhile, see the new rules as straight out of Donald Trump’s playbook.

“Holding public servants responsible for what others post on their page is the stuff of the thought police,” Greens employment spokesperson Adam Bandt MP stated.

“Your job shouldn’t be in danger because someone shares a post on your page about marriage equality or action on climate change and you don’t delete it.”

Criticism and complaints must be through official channels

The document points asserts that policy criticisms and complaints by public servants must go through official channels, and cannot be publicly posted.

MP Andrew Leigh sees the rules as an example of ‘do as I say, not as I do’, pointing out that Treasurer Scott Morrison liked a July tweet calling for better resourcing of the Tax Office.

Constitutional protection

Freedom of speech is not explicitly guaranteed by the Australian constitution.

All Australians do, however, enjoy a degree of protection from government interference with political communication under an implied freedom derived from the representative system of government established by the constitution.

A leading authority for the boundaries of freedom of communication in Australia is the case of Lange v Australian Broadcasting Corporation (1997).

The judges in that case ruled that a law curtailing free communication is permissible if enacted for a legitimate purpose, and if it meets the following conditions:

  • It is compatible with the maintenance of the representative and responsible government mandated by the Constitution, and
  • It is “reasonably appropriate and adapted” to the fulfilment of that legitimate purpose.

The judges found that “the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.”

Stricter rules for public servants

The 2013 Federal Circuit Court of Australia case of Banerji v Bowles is authority for the proposition that public servants can be terminated for publicly criticising the policies of their department, or those of the government.

In that case, Ms Michaela Banerji published a series of tweets critical of her employer, the Department of Immigration, and of the government generally.

In court, she argued that the tweets were a “simple expression of political opinion, made in her own time away from work”, and that her termination was in breach of the “constitutionally guaranteed freedom of expression”.

The judge disagreed, ruling that Ms Banerji’s termination was indeed lawful.

In reaching that decision, the judge noted that section 13 of the Public Service Act 1999, titled ‘The APS Codes of Conduct’, requires public servants to comply with the service’s values, which under section 10 include being “apolitical.”

The judge added that permissible political communication can vary depending on a person’s position of employment, and the implied freedom does not provide a “licence… to breach a contract of employment”, adding that “the unbridled right championed by Ms Banerji does not exist”.

That said, many believe the new rules go a step too far by seeking to prohibit public servants from engaging in debate regarding matters that are significant to their daily lives, and indeed their futures.

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Zeb Holmes

Zeb Holmes

Zeb Holmes is a lawyer with a passion for social justice who advocates criminal law reform, and a member of the content team at Sydney Criminal Lawyers®.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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