Public servants and free speech: knowing when to shut up

By John Wilson

November 13, 2014

In his 1644 work Areopagitica, John Milton wrote:

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

Some 370 years later, freedom of expression remains a cherished right upheld by a number of constitutions and conventions across the globe.

Yet the ability of Australian public servants to freely express their opinions, particularly of the political kind, is not so well protected. Although the Public Service Commission may have claimed in a 2012 circular that “APS employees have the same right to freedom of expression as other members of the community”, the caveat that followed has helped justify significant burdens: “subject to legitimate public interests”.

It has long been accepted that maintaining public confidence in an effective and unbiased administration is of significant importance, and that allowing public servants unfettered ability to broadcast their political views could be detrimental in this regard. Long-repealed regulations under the Commonwealth Public Service Act 1902, for example, expressly forbid officers to “publicly discuss or in any way promote political movements”.

While such a blanket restriction may now be untenable, the APS code of conduct still requires that employees behave at all times in a way that upholds the integrity and reputation of the public service. According to the APSC, harsh or extreme criticism of government, members of parliament or policies might raise “questions about the APS employee’s capacity to work professionally, efficiently or impartially”, hence breaching the code of conduct, regardless of whether the comments related to the employee’s particular workplace. The Department of Prime Minister and Cabinet even demanded early this year that employees “dob in” colleagues engaging in adverse social media communication.

The troublesome task of striking the appropriate balance between public interest and free speech has come before the courts on several occasions, albeit without a definitive judgment on the appropriate path to take.

In Bennett v President, Human Rights and Equal Opportunity Commission, the Federal Court struck down a public service regulation for breaching the implied freedom of political communication. Mr Bennett, a Customs employee and president of the Customs Officers Union, had been formally directed “not to make media comments [involving] disclosure of information about public business or anything of which you have official knowledge”.

Disputing the lawfulness of this direction, Mr Bennett continued his media agitation and was promptly charged with breaching the regulation. Despite acknowledging some legitimate public interests, ranging “from national security … to the maintenance of an impartial and effective public service in which the public can have confidence”, Justice Paul Finn considered that the regulation “manifestly” failed to be reasonably appropriate and adapted to that purpose.

On the other hand, in the more recent Banerji v Bowles, a Department of Immigration employee had been anonymously posting critical tweets about government border protection policies. Ms Banerji alleged the department intended to terminate her employment because of these comments, and sought a declaration that “any finding of a breach of the APS code of conduct for expressing a political opinion contravenes the implied freedom of political communication”.

Yet Australian law, unlike its American counterpart, does not provide expansive protection of free speech. The constitution contains no First Amendment equivalent, and the implied freedom of political communication uncovered in the early 1990s is narrowly drawn. For these reasons, among others, Justice Warwick Neville dismissed the challenge:

“The unbridled right championed by Ms Banerji … does not exist.”

Bennett and Banerji therefore demonstrate a delicate balancing act: some restrictions on the free speech rights of public servants may be accepted, partly because of the lack of broad constitutional protections in this country, but egregious attempts to stifle political debate will be considered dimly. As was noted in the former case:

“Public servants cannot be … silent members of society.”

Finally, fundamental employment law issues may also come into play if an APS employee is found in breach of the code of conduct for expressing political views. Espousing negative sentiments about a policy matter unrelated to the staff member’s department on a Saturday may stretch the necessary connection to employment. Although this is a vexing issue worthy of an entire article, it suffices here to say that judges demand any encroachment into the private lives of employees is “carefully contained and fully justified“.

Ultimately, public interest is a double-edged sword. Maintaining the community’s faith in an unbiased and effective administration is vitally important, but so too is upholding the fundamental protections (both normative and constitutional) against unjust impingement on the political expression of all citizens, public servants included.

Like so many employment-related issues in this arena — from drug testing to the disclosure of misconduct investigation outcomes — there is no obviously correct solution to this delicate balancing act. Indignant public servants will demand fewer restrictions on their political expression, while nervous senior bureaucrats and politicians will remain adamant that such limitations are for the greater good.

Policymakers should nonetheless perhaps take heed from Justice Michael Kirby, who observed in Lenah Game Meats that:

“Australian law does not embrace absolutes.”

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