Free speech for public servants and Osip Mandelstam

During the week the High Court of Australia passed judgement on a case in which a public servant was sacked for an anonymous tweet, critical of government but made in her private life, that was said to breach a code of conduct for government employees. The lower courts had found that this action was an unjustified constraint on freedom of speech. The Commonwealth Government appealed.

The High Court found that it was justified as a means to uphold the role of an apolitical public service in responsible government. The Court’s summary judgement reads:

On appeal, the High Court unanimously held that the impugned provisions had a purpose consistent with the constitutionally prescribed system of representative and responsible government, namely the maintenance of an apolitical public service. The Court also held that the provisions were reasonably appropriate and adapted or proportionate to their purpose and accordingly did not impose an unjustified burden on the implied freedom.

High Court of Australia 2019 Comcare v Banerjee

The judgement has been interpreted widely as confirming the restriction of freedom of speech, not only of public servants but all employees who their employers seek to control through codes of conduct and organisational policies. We truly have entered the realm of Havel’s post-democratic society in which the fat controllers of petty organisations are able to enforce living in a lie.

I am no lawyer, but I doubt the quality of the Court’s judgement on the substance of the claim that these kinds of rules maintain an apolitical public service. In truth, the public service is wrecked by political patronage, especially among the senior executive ranks – that is by those who enforce these codes of conduct; it is ruled by an ethos of courting Ministers and their advisers, rather than determining the public interest apolitically; it is infected with too many communications executives, expedient consultants, venal office-holders and zealous advocates; its intellectual traditions are ruined; its moral virtue compromised; and all these betrayals of an apolitical public service are the results of actions by the leadership of these organisations, much more so than by any sporadic, private tweets or blog posts by public servants who still ,in some parts of their lives, wish to live in truth. And these observations are true of governments run by left-wing and right-wing parties – they are all based on my observation of the decay of the Victorian public service over 30 years. The truth is there is no longer an apolitical public service to maintain in our distressed republics, and codes of conduct are merely used to enforce living a lie.

Despite the chilling effect of this ruling, I will not be gagged. I will not be intimidated any longer. I would call, if anyone is listening, on mass civil disobedience of this code. And I know these rulings do intimidate. It was the Banerjee case, and my craven wish in a time of failing courage for political favour within this institution, favour I felt would be withdrawn because of my thought-crimes, that led me to take down my anonymous Happy Pessimist blog five years ago.

So, as an act of defiance of the new nomenklatura of our post-democratic society, I am reposting a set of essays from that suppressed blog of thought-crimes. These essays began to sketch an interpretation of the crisis in Australian politics from 2010 – the Rudd/Gillard/Rudd, then Abbott/Turnbull years. There is no doubt these essays criticise governments, parties, institutions – but they are not thoughtless spasms of bias. There is no way in which these thoughts, a free and open attempt to make sense of what was going wrong with government, compromised my ability to perform my duties as a professional public servant.

So will our time’s petty enforcers of post-democratic rule come for me in the way that bureaucratic enforcers came for Mikhaila Banerjee; and in the way Joseph Stalin came for Osip Mandelstam for writing privately on paper, if snooped on by the authorities, the poem, Stalin Epigram?

We are living, but can’t feel the land where we stay,
More than ten steps away you can’t hear what we say.
But if people would talk on occasion,
They should mention the Kremlin Caucasian.

His thick fingers are bulky and fat like live-baits,
And his accurate words are as heavy as weights.
Cucaracha’s moustaches are screaming,
And his boot-tops are shining and gleaming.

But around him a crowd of thin-necked henchmen,
And he plays with the services of these half-men.
Some are whistling, some meowing, some sniffing,
He’s alone booming, poking and whiffing.

He is forging his rules and decrees like horseshoes –
Into groins, into foreheads, in eyes, and eyebrows.
Every killing for him is delight,
And Ossetian torso is wide.

Osip Mandelstam, Stalin Epigram, November 1933

We shall see what retribution comes – the reposted essays follows in the next post.

Image credit: Wikipedia, Osip Mandelstam NKVD file, photogrpah after second arrest in 1938