A minor controversy has broken out in Australia over restrictions on the free speech of public servants. The controversy was prompted by the Australian Public Service Commission issuing revised guidelines on the use of social media by public servants. The guidelines state that “criticising the work, or the administration, of your agency is almost always going to be seen as a breach of the Code,” and so such criticisms invite dismissal.
The Public Service Commissioner, John Lloyd, who I worked beside many years ago when he ran public sector industrial relations under the hard free market driven Kennett Government (1992-99), made the already provocative guidelines worse by commenting that public servants may, subject to the discretion and judgement of their employer, be “in trouble” if they liked a facebook post of a family member on the issue of gay marriage. The current Government has a policy on gay marriage, which even some of its own parliamentary members criticise; but if a public servant were, however faintly, to express a differing view, then according to Mr Lloyd’s code of convenience, they would be imperilling the reputation and capacity of the public service to serve the government of the day impartially and professionally. They could be dismissed for a simple social impulse that takes one second to do and in no way affects anything they do at work.
These guidelines are deeply wrong. They breach the right to free speech of public servants, and breach other rights under the International Covenant on Civil and Political Rights. Let’s look at some of the articles of the covenant.
Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence [my emphasis], nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
The APSC social media guidelines expose people’s private correspondence on social media to the discretionary judgement of an agency, who may decide certain comments hurt the agency’s reputation. The consequence is to attack a public servant’s ability to perform their job professionally and hence their reputation. Is the idea of the executive management of public sector agencies patrolling the social media posts any better than Stalin monitoring the correspondence of the dissident poets of the Soviet Union? Must we be like Akhmatova and burn our opinions after speaking them to another so that no evidence is left behind?
Article 18
1. Everyone shall have the right to freedom of thought [my emphasis], conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
If I manifest my beliefs in a vocation of public service on this blog, and I criticise the leadership of the public service for failing to live up to those ethical beliefs, the ordinary virtues of governing well, that I espouse, then, according to Mr Lloyd, I should be sacked. In threatening such action, the new guidelines restrict my freedom of thought (and this right applies to thought and conscience, not only religion) and restricts my ability to manifest that belief.
There are two common defences of such restrictions – that it is necessary to protect the reputation of the public service as impartial and professional, and that is a right that I waive by signing an employment contract. The second of these defences may go to an interpretation of the rights and freedoms of others, ie of employers, as shown in several industrial cases. However, I think properly understood what is being defended here are the current interests of these others, not their fundamental rights and freedoms.
The primary defence of the restriction relates to the protection of public order, in the language of the covenant. How can public order be maintained if the servants of the government of the day can criticise Ministers and agencies willy-nilly, and lead the public to believe that government acts without a single voice, without a common body of authority? There is clearly a threshold issue here. No-one has the right to falsely scream fire in a cinema. However, none of the illustrative examples of breaches of social media use have the gravity of imperilling public order. They tend rather to expose senior managers who are hypersensitive to criticism, and unable to project legitimate authority.
Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
You do not have the right to hold opinions without interference if you are threatened with dismissal for shaping your thoughts on a blog that may be followed, such as this one, by less than fifty people. You do not have the freedom to choose the media of your choice if you are told you can say some things in private, but not by liking facebook posts.
As with article 18 there is a balance of right and responsibility in article 19. But Mr Lloyd’s dictats restrict many more acts of free speech than the relatively few that genuinely breach the rights and reputations of others. Criticism after all is neither sedition nor defamation.
These social media guidelines are not especially the work of one side of politics or another. They are part of a general regime of control and impoverishment of public debate by managerial elites. They reflect a general practice that ushers public servants, who often are well informed and capable of meaningful contribution to public dialogue, into a dark, silent corner, while inept political advisers and communications consultants dominate the airwaves with inane talking points.
I believe these guidelines, moreover, are a form of intimidation of critics by a managerial elite who are incapable of conducting respectful dialogue with the employees of their own institution. I am considering making a complaint on the matter to the Australian Human Rights Commission – but think that my energies are better spent looking at ways of sheltering, protecting and renewing the genuine ethos of public service that I espouse.
The irony, of course, is that this managerial elite has done far more damage to the reputation of the public service and its capacity to serve both the government of the day and the broader public with impartiality, professional ethos and pride in the ordinary virtues of governing well. I look around my own institution and see dozens of senior executives who have made their way their through patronage, partisan service in political adviser roles or mercenary service in management consulting.
Indeed, Mr Lloyd himself does not have a distinguished career of serving both sides of politics. He has migrated from one conservative government to another, and long been a member of the right wing industrial relations club at the Institute of Public Affairs. His appointment as Public Service Commissioner, in my opinion, dishonoured the service.
There are, indeed, much greater threats to the reputation, impartiality and professional ethos of the public service than the occasional impulsive social media post. We would do better acting on them, than persecuting people for opinions. Recently, a distinguished Commonwealth public servant, Dennis Richardson, called for a Royal Commission into the institution. He was quoted as saying:
“I sometimes wonder whether the time has not come for a second Coombs commission, in terms of the public sector. We had a royal commission into the public service in the 1970s and I think every so often institutions need to go back to their philosophical foundations. And I sometimes wonder whether the time has not come for a second royal commission, because community attitudes and standards have changed; the way in which ministers, ministerial advisers and public servants work together has completely changed; and I wonder whether we should not be revisiting the philosophical foundations of that.”
I agree with this call. I would also support such a Commission or Inquiry into the public service of the Victorian Government, which is very much rotting from the head down, led by a man who espouses a mercenary belief in something called the “public purpose sector.” Such a Commission or Inquiry should be able to look at the broader foundations of democratic institutions – parliament, parties, public serving universities, and public dialogue across many media.
Such a Commission or Inquiry would better preserve and improve the reputation and integrity of the public service than these contemptible guidelines on social media use.
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