In exchange for getting privileged access to information and power, public servants give up a range of rights. This should not come as a surprise. I’ve written about this issue before with regard to the Federal Court case of Banerji v Bowles, in which a public servant’s unhinged behaviour on Twitter was not found to be protected political speech.
Today’s announcement that the government has issued more restrictive advice about appropriate behaviour for public servants on social media has reignited this debate. Of course, most of the debate is just media beat up because the new guideline is not all that novel, but there are some broader discussions that are worth considering.
The biggest debate is the relationship between freedom of political expression and employment as a public servant. Personally, my view is that if you want to have a social media profile for political hot takes, you should wonder if having a job in the public service is consistent with that aspiration. But we can dig a little bit deeper.
There is an argument that the policy is an example of an employer (in this case, the Commonwealth public servant) using its private capacities to regulate the speech of its employees (public servants). In the general sense, this topic is extremely interesting and forms the backbone of my argument that the current liberal attitude towards freedom of speech (‘It doesn’t mean freedom from consequences’) means that free speech is only for the privileged (see here and here).
I agree that particular kinds of speech should be protected from employer retribution. More accurately, I think that the protection should err on the side of the employee unless there are good reasons that appropriate public profile forms part of the job. Sportspeople should immediately be sacked if they say anything dicey. Celebrities and media figures should suffer economic consequences if they use their social power to make antisocial comments.
But is the relationship between the Commonwealth and the public servant really like the relationship between an employer and employee? In some senses, yes. You get a salary for doing work. You get access to employment benefits and can stop your employer from acting in ways contrary to employment law.
In another sense, it isn’t. Public servants are given extraordinary powers, access, and privileges at the expense of others. It is a career of service to others and a profession that depends upon trust. The Constitution makes it clear that public servants are a weird category of citizen. In s 44, they are banned from standing for election. The reasons are obvious: politicians would not be able to trust the public service if they knew that some proportion of them were harbouring contrary political ambitions.
This line of argument only works so far and it depends on what I think is a flawed intuition, that unexpressed political opinions means no political opinion. I think I would prefer to know what the political opinions are of senior public servants and journalists rather than this cagey game of ‘We are apolitical.’
But, even acknowledging that quirk, I still think it’s right that the APS curtails the political expression of public servants, especially where that curtailment is reasonable and well adapted to the purpose of maintaining trust in the public service.
The aspect of the latest guidance note which has frothed the media is the idea that public servants might be held responsible for their interactions with others on social media. For example, if somebody posts something inflammatory on their Facebook wall, it might factor into a code of conduct investigation if the public servant engaged with the content in particular ways.
It took me a while to work out precisely what the outrage was given that the advice is entirely consistent with the rest of the advice. Public servants are responsible for maintaining trust in the public service; if they allow people to post content to their pages, they need to make sure that the content does not interfere with their perception of being impartial and professional.
There is something incredibly adolescent about the media’s outrage over the APSC guidelines. Public servants (and, in some cases, their partners and families) need to weigh up how valuable making hot takes in public is to them. If they have to smother some A+ content, so be it. There are more important things than being able to sledge the government online.