Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

And all the monkeys aren’t in a zoo, every day you’ll meet quite a few… New APSC social media guidelines are out

It’s a topic that never ages: to what extent should public servants express public opinions?  Back in 2012 (Holy God, I’ve been writing this blog forever), I noted that the underlying frame of the discussion was that we wanted only public servants to say things that we wanted to hear.  Very little has changed since then: if a public servant says something that is correct but politically objectionable, one ‘side’ wants them sacked and the other wants their speech to get constitutional protection.  If the public servant says something correct but politically objectionable to the other ‘side’, the public debate swaps ends of the court.  It’s not an intellectually edifying discussion.

The poster child for this debate is Michaela Banerji.  Should public servants get more protections for their online speech than other kinds of employees?  Answer: no.  Academics get this wrong.  Pundits get this wrong.  But because she was sledging her colleagues at the Department of Immigration, she became a cause celebre for progressives.

The Australian Public Service Commissioner has an unenviable job.  It is not only enough for them to be legally correct, the APSC is trying to get the pseudo-legal culture right.  Your average public servant is unlikely to get pinged for expressing normal political opinions online; but you just know that there’s some overzealous, pain-in-the-arse, borderline bullying middle management guy who is going to be a dick about it.

There’s a live debate here.  With the media so grossly misrepresenting the Banerji case, the culture of the public service shifts to be more cautious, more conservative, and more restrictive of junior staff.  The APSC’s role is to make sure the culture is right.  They’ve released an updated guidance note for public servants on social media, largely following the outline given by Justice Edelman in the Banerji decision.

But this is the puzzle.  Does it read too conservatively?  Does using the word ‘risk’ read too negatively?  Is there too much focus on what is likely to get you into trouble, and too little on where you’re in the clear?  If a public servant doesn’t get certainty, does that make them less willing to participate?

There is a level of unreality about the examples given.  For example:

Social debate. Generally speaking, employees are free to engage in online debate on a wide range of issues—from the relatively uncontroversial, such as the care and feeding of sourdough starters or the rights of cyclists to ride on roads, to the more contentious, such as the merits of greyhound racing or live animal export, the legalisation of cannabis, or the date of Australia Day. But the risk is higher the more extreme the expression: an APS employee using slurs or abusive language, engaging in harassment, or threatening violence has a high risk of undermining confidence in the APS, regardless of context.

Reading this, you could be forgiven for thinking that the ‘wide range’ of issues encompasses everything from the trivial and inane through to the vague and general.  Can a public have very strong, and very specific political opinions?  The answer is yes provided that it is done within the context of the broader risks: will it bring the public service into disrepute?

Framed differently, should the APSC frame this instead as exceptions to public debate rather than the carving out of ‘safe spaces’?  That is: public servants are — and have been since at least the 1990s — free to all the rights of ordinary citizens (cough… except insofar as s 44 of the Constitution is concerned… cough…), even those with regard to public debate.  The exceptions to this right are narrow: where the speech obviously and egregiously interferes with the public’s perception of the public service as impartial and apolitical.

Framing it this way instead of the alternative gets away from risk-averse interpretations of the duties and obligations of public servants.  It also shifts the weight of the discussion: it is not for public servants themselves to justify their speech-acts, it is for middle managers to justify their intrusion upon private speech-acts.

All of this, by the way, is consistent with Banerji.  Banerji got done for sledging her colleagues online with a tone that went ‘into the realm of partisan advocacy and personal vitriol’.  If the concern is (and it is) that middle managers aren’t getting the culture right because of their understanding of Banerji, then the APSC should be proactively trying to shift that narrative.

I want to end this entry into the debate with reference to a different case: Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370.  In this case, the termination notice indicated:

I am satisfied that a significant amount of the material enclosed with the Termination Notice, being material from your personal web blog, twitter and facebook posts, is critical of the ADF and government policy and decisions, particularly the support offered to homosexual and transgender members of the ADF and the decision to permit women to serve in combat roles. I am satisfied that the manner in which your disagreement with those policy decisions is publicly expressed is generally intemperate, disrespectful and does not accord with the standard of behaviour expected of any Defence member, and particularly an Officer of your rank and experience.

What, fundamentally, is the difference between Ms Banerji and Mr Gaynor?  I do not — not even for the merest of moments — believe that everybody needs to be treated equally in their expression of opinion.  Perhaps it is enough that Mr Gaynor expressed strong views that we consider to be antisocial or beyond reasonable public debate that distinguishes his case from Ms Banerji’s.  That’s fine, but we need to have the Gaynors on the table when we discuss the Banerjis because this debate falls way too quickly into discussion about what protections we want for speech that we want, and ignores the fact that we can — and should — limit some kinds of speech.  Mr Gaynor’s views about homosexual officers, transgender officers, and women in combat roles were incompatible with his ongoing employment in the ADF.  I would argue that Ms Banerji’s views were incompatible with her remaining at the Department of Immigration.  But we should not begin to think that there needs to be new levels of protection, unique to public servants, if we are not going to consider the real risk that the protection would cover the Gaynors.

This remains a debate that is poorly developed in the media.  It is ideologically clouded, imprecise, and deals more in generalities than it does in realities.  The APSC needs to lead this debate in more constructive ways.

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