You cannot administer government policy and relentlessly criticise it online. Governments, whatever you think of them, have to be able to trust public servants

By Bernard Keane

Tuesday August 13, 2019

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BERNARD KEANE: CODE OF CONDUCT With good professional judgement, people can implement policy in one area professionally and impartially, while being vocally enraged by the government’s handling of another area.

The High Court got it right in the Michaela Banerji case, but that doesn’t mean we aren’t overdue for a serious rethink about public servants and social media. And, luckily, a Coalition senator has suggested a good way forward for both politicians and bureaucrats.

First, at the risk of making this about me, some disclosure. I blogged as a public servant. You might remember blogging — it was all the rage in the dark days before social media allowed anyone with a phone to express themselves to whatever online community they could find as much as they liked. Indeed, I got my job at Crikey courtesy of my blogging, and I briefly contributed to Crikey, without payment, under a pseudonym.

Did I breach the APS Code of Conduct or even the law in doing this? I certainly never revealed any confidential information. For that matter, I never wrote about the subject I dealt with in my day job as a public servant — in my view, that would have been unprofessional and a breach of the trust my employer placed in me — something that, for me personally, was far more serious than being found to have breached any code of conduct. And much of that experience informs my own take on the Banerji case, as will become clear.

The APS Value of impartiality

The framing principle for all this is the Australian Public Service Commission’s interpretation of the APS Value of impartiality: “The APS is apolitical and provides the Government with advice that is frank, honest, timely, and based on the best available evidence.” The APSC interprets this as meaning public servants must

  • “ensure their actions don’t provide grounds for a reasonable person to conclude that they can’t serve the government of the day impartially, and
  • implement government policies professionally in a way that is impartial and free from bias.”

I think Banerji clearly breached this with her social media activity: you cannot both administer government policy and relentlessly criticise it online. She was not a whistleblower revealing wrongdoing in the then-Department of Immigration, she was simply a critic of the government’s asylum-seeker policies while being involved in the implementation of those policies. The government, her colleagues and taxpayers could not regard her actions as anything other than a biased and unprofessional approach to implementing the government’s policies. Had a reasonable person known about her criticism, it would have been fair for them to conclude she couldn’t serve the government impartially.

The requirement to demonstrate you can implement government policy impartially is a sound one. Governments, whatever you think of them, have to be able to trust public servants. And other public servants, and managers, have to be able to trust colleagues. I wouldn’t trust a colleague or staff member I knew was relentlessly bagging the policies we were required to administer. Banerji should have done what many public servants do if they’re uncomfortable with their work (or, for that matter, private sector employees): change jobs. If Banerji had been a staff member of mine, I’d have told her to delete her account or go somewhere else. It’s easier in the APS than in the private sector: you don’t like what you’re doing, move somewhere else. Maybe in the same department, or in another. But go.

You have freedom of movement

We’re not talking here about simply having to implement policies you don’t think are sensible or optimal — we’ve all had to do that, that’s the nature of government, even ministers and staffers aren’t always enamoured of the policies they have to implement. We’re talking about policies that make us deeply morally uncomfortable. If you feel that way, you leave. I say that as someone who at Crikey has scathingly criticised Home Affairs and Attorney-General’s staff over issues like offshore processing and infringements of civil liberties in recent years. If a public servant stays and implement the kinds of policies we’ve seen since 2010, it says (at least to me) something about their lack of ethics and morality. But if they stay and do the job and bag the policy, it says something more — that they can’t be trusted by their colleagues.

But what if Banerji was criticising government policy in an area unrelated to her day job? The APS view of social media use doesn’t make any serious distinction between criticism related to your area of work and criticism unrelated to it. And that is where the current application of the APS Values falls apart: people can implement policy in one area professionally and impartially while being enraged by the government’s handling of another area, and giving voice to that rage. It’s wild overreach to suggest they cannot. And there’s a Liberal senator who agrees. Victorian senator James Paterson, formerly of the Institute of Public Affairs, made this point in an interview in the wake of the Banerji decision. He told the ABC’s Jon Faine:

“Ms Banerji should be absolutely free to criticise government policies in areas that are not directly relevant to her employment. Had her 9,000 tweets been about climate change policy and her views on that I think that it would have been unfair and unjustified to sack her. But given that they were directly relevant to her personal employment with the public service I think that puts it in a different category… If you sent 9,000 tweets criticising the ABC or if in my previous life I sent 9,000 tweets criticising the IPA. I think both of our employers would have reasonable recourse to sack us. But, if we were tweeting unrelated things to our professional roles I don’t think it’s a good idea for employers to sack people in that instance.”

Paterson gets the balance right here, in a way the APSC and the majority of APS managers and framers of departmental social media policies do not. In a supposedly robust democracy, public servants should be able to exercise their rights as citizens in areas unrelated to what they work on day-to-day. Any grown-up can understand that a person may have strong views about one policy issue while being able to professionally carry out their responsibilities in relation to another.

The red herring of anonymity

In that interview, Paterson also discussed the issue of anonymity, in which he commendably defended the right to online anonymity from an attack by Faine, who seemed to think being anonymous online equalled being a troll. It’s an issue because Banerji had argued that due to her online anonymity — she tweeted under a handle that didn’t identify her — that defeated the requirements of the APS Value of impartiality. The High Court rejected that argument, partly because it wasn’t strictly true (colleagues knew Banerji was behind the account) but also because it substituted the mere pretence of impartiality for actual impartiality, and suggested that anonymous speech shouldn’t receive greater protection than speech by someone willing to put their name to it.

This is fine as far as it goes, but it doesn’t resolve that the APS Values and their interpretation don’t handle anonymity well. Nor would you expect them to: the Values, and the mindset that reflects them, were developed in an age before social media, when there were very few channels for public servants to state views publicly beyond the Letters page of the Canberra Times. Anonymity is the product of the digital age, for better and for worse (I used to think mostly better, now I think mostly worse, but that’s another debate). Banerji’s lawyers actually made a good point — if the test is what a reasonable person might think about a public servant’s capacity to implement policy impartially and professionally, then they can’t think anything if that public servant is anonymous. The test itself is flawed.

Grown-up enough to be trusted?

The broader problem, though, is the all-encompassing role the APS seems to assume for itself in relation to public servants. Some departments have even sought to direct their employees that they can never criticise government policy online in any circumstances at all, even in private, and banned them from using any sites that might reflect poorly on the APS. This is Big Brother stuff, where the public servant is 24/7 on duty and cannot express their private thoughts or use a platform that might be regarded by someone, somewhere, as unseemly or inappropriate (no Tinder for public servants, sorry).

There has to be a better approach than infantilising public servants this way. However the APSC and individual departments handle online anonymity, Banerji shouldn’t have done what she did. She showed poor judgment, and lost her job because of it. A social media policy that both allows and requires public servants to exercise good professional judgment, while also exercising their democratic rights, is a better approach than the draconian efforts of departmental managers to control every aspect of their employees’ lives.

Whether governments and public service managers are grown up enough for that trust, however, is another question. At least one Liberal senator is, but it’s unlikely many of his ministerial colleagues agrees with him.

READ MORE FROM BERNARD KEANE: Hell hath no fury like a senior public servant scorned

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