New advice for public servants posting on social media, same old rules

By Stephen Easton

Monday August 7, 2017

The Australian Public Service Commission has published its most explicit guidelines yet about how freedom of speech is limited by the APS Code of Conduct — but there’s no new policy, as reported by the government’s favourite newspaper this morning.

The new guide, Making public comment on social media, contains very detailed advice to help APS employees avoid getting in trouble for putting the wrong thing in writing — including anonymously or in private correspondence that later becomes public.

The commission explains how the responsibilities of public servants “limit their ability to participate fully in public discussions, including on social media” and offers tips on how to avoid getting pulled up. The rules haven’t changed, however, and broadly speaking, the new advice could apply just as well to any state, territory or local government.

Legally, the new guide has no special standing. If a federal bureaucrat were to appeal against disciplinary action or dismissal in a court or tribunal, the new guidance would probably be taken into account but the commission’s interpretation of the rules could be challenged.

“In any workplace grievance hearing by Tribunals, it is common for employer policy, such as the social media guidance, to be taken into account,” APS commissioner John Lloyd explained in a statement.

“The social media guidance supports employers and employees to exercise judgement and discretion in using social media. Like any other guidance, it is possible to challenge the opinion it expresses in a Tribunal setting.”

He also issued a statement saying an article in The Australian “misrepresents” the new guidance as a new set of harsher rules, even though the paper had interviewed Lloyd for its story, which was published hours before the guidelines went up online.

Lloyd is not concerned with helping public servants exercise freedom of speech and political communication as much as possible within the bounds of their employment. As such, his advice errs on the side of extreme caution (a trait common among those who survive long public service careers) and suggests that public servants have very little functional freedom of political speech, compared to other citizens.

This includes “risk factors” to consider before putting your opinions into a sharply worded email or social media post — such as any criticism of your current or former agency, minister or shadow minister, or the Prime Minister, or the opposition leader, or the spokesperson from a minor party.

An angry emoticon might not be enough

Liking, sharing and re-posting other people’s comments is likely to look like an endorsement, public servants are advised.

“However, if you’re sharing something because you disagree with it and want to draw it [to] someone else’s attention, make sure that you make that clear at the time in a way that doesn’t breach the Code itself,” says the APSC.

“It may not be enough to select the ‘angry face’ icon, especially if you’re one of thousands that have done so.”

The commission suggests it is a “bad idea” to rely on privacy settings, such as sharing only with friends on Facebook, because one of your friends might quote you or take a screenshot.

“The breach of the Code occurs at the time you made your post,” the guide states. “The fact that one of your friends chose to repost it doesn’t create the breach — it just makes it easier to identify and investigate.”

According to the guide, “anything that you say in public or which ends up in public” is public comment, even if you only wrote it to one person: “If your comment has an audience, or a recipient, it’s a public comment.”

Public servants are warned they could even be held responsible for joining a particular Facebook group, or for what others post on their page, because “doing nothing” about it might be seen as endorsement.

“If someone does post material of this kind, it may be sensible to delete it or make it plain that you don’t agree with it or support it,” in the commission’s view.

“Any breach of the Code would not come from the person making the post. It would come from how you reacted to it.”

The guide does not have a clear yes-or-no answer about whether it is OK for a public servant to share online petitions, or to criticise the service they received from an agency as a citizen. The latter “will always be a matter for very careful consideration” according to the APSC.

The new guidance urges public servants to watch the “language and tone” they use, avoid personal attacks, and to question whether they really are anonymous or speaking privately when they think they are.

“It’s a simple fact: agencies often receive dob-ins about comments made by their employees,” the APSC writes. “Often those employees are shocked to find they’ve been linked back to their employer so easily.”

Public servants are expected to be mild-mannered and “focus on the facts” when making public comments about “sensitive issues”. They are advised to choose “nuanced and thoughtful” over “blunt and inflammatory” and recognise the possibility of alternative points of view.

“Picking fights on the internet is not behaviour consistent with the Code of Conduct,” the APSC advises.

The new guide adds that personal attacks are dangerous territory and could land you in hot water with the person you insulted publicly, especially if they are a politician, as well as your employer.

“People who read those insulting comments will form views about whether you can in fact act impartially in your work.

“They may also ask themselves whether it is appropriate for a person who makes comments like that to be working for the government, lowering the reputation of your agency and the APS.

“Criticism of any person, including current or former colleagues, may also amount to a failure to treat them with respect and courtesy. It may even amount to harassment.”

The APSC says it is a good idea to add a little disclaimer to social media accounts, blogs or individual posts, but points out this is not a get-out-of-jail-free card. “For example, if you choose to publish material that is vehemently anti-government, a disclaimer of this kind will not make you immune to a Code investigation.”

Using your own equipment means you can’t be accused of misusing the government’s property but, as most public servants know well, the Code of Conduct applies all the time.

The commission also reminds senior executives they need to be “especially careful” about voicing their private opinions on politics and public policy. While acknowledging APS employees “have the right to participate in public and political debate” as citizens, the guide explains “this is not an unlimited right” and the higher your pay grade, the more limited it is:

“As a general guide, the more senior you are in the APS the more likely it is that people will believe you are privy to the real workings of government. Your opinions will carry more weight and have a greater capacity to affect the reputation of an agency or the APS.

“Senior APS employees, or employees with a particularly high-profile or specialist role, need to be especially careful in considering the impact of any comments they might make.”

“Senior Executive Service (SES) employees have a particular responsibility because they:

  • can influence the relationship between stakeholders and government
  • are likely to be required to advise on, or lead, the implementation of government policies and programs within agencies and across agency and portfolio boundaries, and
  • are required by personal example to promote the APS Values and compliance with the Code.”

Handing out how-to-vote cards at elections is probably fine, in the commission’s view, unless you work for the Australian Electoral Commission. And in line with the above advice, senior public servants might find their impartiality questioned if they’re volunteering at election time.

It’s just advice, there is no new policy

Someone in the government dropped the news to The Australian before it went up on the APSC website in the wee hours of this morning, but the commission itself felt the newspaper’s report was misleading.

The rules themselves — contained in the APS Values and Code of Conduct, which are enshrined in the Public Service Act — have not changed. The government has not decided to impose any new restrictions on its employees, as The Australian suggests today, and the only way this could be considered a “crackdown” — as reported by Sky News — is if one sees the new guide as a warning designed to intimidate public servants into staying quiet.

Nor are there any “tough new social media rules” as The Canberra Times described the new guidelines.

Of its own accord, an APSC spokesperson told The Mandarin the newspaper was wrong to describe its latest guide as a “new policy” because it is actually just updated guidance that explains how the existing rules apply in various practical situations. The purpose of the new guide is made clear in only the fifth paragraph:

“Deciding whether to make a particular comment or post certain material online is a matter of careful judgement rather than a simple formula. This guidance sets out factors for employees to consider in making decisions about whether and what to post.”

One basic legal starting point is that “APS employees must not make public comment that may lead a reasonable person to conclude that they cannot serve the government of the day impartially and professionally” — and it is part of the APSC’s job to try to explain what that means in practice.

At the same time, the commission has also updated similar advice on “making public comment and participating online”  and has made some corresponding changes to section six of its longer guide, APS Values and Code of Conduct in practice, which adds more detail including a “do” and “don’t” list and a definition of public comment.

Whether we like it or not (and this reporter never has), dropping news to one outlet is now the standard approach for most government announcements, although this could have been a genuine unofficial leak in this case. The strategy has its advantages — giving someone an exclusive makes sure the story is reported prominently and probably picked up by radio and television — but it makes everyone look a bit silly when the original source feels the need to issue a clarification.

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