21 July 2016

Crimping Political Communication in the ACT administration?

The ACT Legislative Assembly Standing Committee on Justice and Community Safety (Legislative Scrutiny) has offered cogent criticisms [PDF] of the Public Sector Management Amendment Bill 2016 (ACT).

The Bill serves to crimp criticism by public servants of the Territory administration and is of interest to privacy, constitutional and employment law scholars (for example those noting Banerji v Bowles).

The Committee highlights executive overreach, commenting
This is a Bill to amend the Public Sector Management Act 1994 so that it will cover all ACT Public Sector entities except Territory owned corporations; formally establish the Senior executive Service; contain heads of power for the employment of ACT public servants; vest all employment powers at the Head of Service level; and apply the ACTPS values to the whole of the public sector.
Do any provisions of the Bill amount to an undue trespass on personal rights and liberties?— paragraph (3)(a) of the terms of reference
Report under section 38 of the Human Rights Act 2004
Clause 6 of the Bill provides for a substituted division 2.1 of the Act, and is entitled “Public sector standards”. Proposed section 9, which is headed “Public sector conduct”, gives rise to a number of human rights issues. This is acknowledged and dealt with in a cursory way in the Explanatory Statement (at page 7), and the matter requires deeper analysis.
Proposed paragraph 9(2)(a) of the Public Sector Management Act 1994 provides that a public servant must not engage in conduct that causes damage to the reputation of the service or the Executive. What follows is the entirety of the Explanatory Statement comment on this proposal:
Section 9(2)(a) deliberately includes actions by a public servant that are undertaken outside of official duties. Emergent case law on the impact of out of hours conduct on the employment relationship demonstrates increasing societal and institutional acceptance of this connection. This is particularly true of employee participation in social media fora where there is significant potential for reputational damage to the employer. The need to retain public confidence in the public service outweighs any impingement on an individual’s right to privacy, freedom of expression or participation in democratic processes.
The conduct proscribed by paragraph 9(2)(a) will embrace speech, and paragraph 9(2)(a) thereby engages and derogates from HRA subsection 16(2) (the right to freedom of expression), and section 17 (“the right, and ... the opportunity, to (a) take part in the conduct of public affairs, directly or through freely chosen representatives”). This is acknowledged by the Explanatory Statement. There is no reference to HRA section 28 as a basis for these derogations, nor any attempt in substance to make out a justification according to the framework stated in section 28. 
There is also a question whether paragraph 9(2)(a) would be invalid as a derogation of the right to freedom of political communication found by the High Court to arise by implication from the provisions in the Commonwealth Constitution. For the purposes of this report, the High Court’s doctrine may be taken as a framework for also addressing the question whether paragraph 9(2)(a) is a justifiable derogation of HRA sections 16 and 17.
The central question posed by section 28 is whether the limit to speech is “reasonable” “in a free and democratic society”. The High Court test is not substantially (or perhaps at all) different. 
The significance of free speech
The judgment of Heydon J on Monis v The Queen is a common way of stating judicial attitude on the value of free speech. His Honour said:
[151] The common law right of free speech is a fundamental right or freedom falling within the principle of legality. That must be so if there is any shadow of truth in Cardozo J's claim that freedom of speech is "the matrix, the indispensable condition, of nearly every other form of freedom." It must be so if Lord Steyn's account of the importance of freedom of expression is convincing. He said: "Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), 'the best test of truth is the power of the thought to get itself accepted in the competition of the market'. Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country". ... 
[152] Of course, Cardozo J was dealing with the First and Fourteenth Amendments to the United States Constitution. ... 
Constitutional rights of those kinds are different from a common law right capable of modification by statute. But the considerations underlying a constitutional right of free speech, where it exists, are equally strong indications that the right of free speech at common law is sufficiently important to attract the principle of legality.  
 The Commonwealth Constitution’s freedom of political communication  
In Monis v The Queen Hayne J said that “where a law has the legal or practical effect of burdening political communication, the boundaries of the freedom are marked by two conditions”. The first is “the object of the impugned law ‘is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government ... which the Constitution prescribes’”. This object is often spoken of as the “legitimate end”. The second is that the law is reasonably appropriate and adapted to serving the legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. 
The character of this freedom was described by McHugh J in Levy v Victoria: "The freedom protected by the Constitution is not, however, a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution”.  
The width of the language on paragraph 9(2)(a)  
Whether or not paragraph 9(2)(a) derogates from this freedom will turn on its language and, in particular on the breadth of the conduct it proscribes. Conduct proscribed by paragraph 9(2)(a) will embrace statements made by a public servant in any context and at any time or place that cause damage to the reputation of the service or the Executive. The “service” is the ACT Public Service, and the “Executive” is the Australian Capital Territory Executive, being the Chief Minister and such other Ministers as are appointed by the Chief Minister. See the Australian Capital Territory (Self-Government) Act 1989 sections 36 and 39. 
The only limitation on the communication that is caught by the law is that it has the effect of causing damage to the reputation of the service or the Executive. There is no limitation in terms of whether the information in question was or was not otherwise publicly available, or whether it ought to be or could be made so. Nor is it concerned with whether, in a given instance, any public interest consideration could reasonably justify a prohibition on disclosure. Nor is it necessary to consider (i) whether the information upon which the communication was derived by the official in confidence; or (ii) whether the communication was based on anything learnt by reason of the person being a public servant. 
The potential effect on free speech by a public servant of the rule in paragraph 9(2)(a) should also be understood by reference to other provisions in proposed section 9 concerning misconduct. Clause 104 of the Bill would amend the Dictionary to the Act by prescribing that “misconduct, by a public servant, means failure to comply with section 9”, and this is also reflected in subsection 9(3), which provides that “[f]or a misconduct procedure, failing to act in a way that is consistent with subsection (1) or (2) may be misconduct”. The effect is that a communication by a public servant that is proscribed by paragraph 9(2)(a) may be a basis for a misconduct procedure set out in an industrial instrument or prescribed by regulation. The provision of subsection 9(4) makes it more likely that this will happen. It provides that a public servant (a discloser) must tell the head of service about any misconduct by a public servant or a public sector member of which the discloser becomes aware. 
The result of these provisions may be that public servants will be very wary of making any communication that could be plausibly construed as one that causes damage to the service or to the Executive. This result would directly affect their participation in discussion of matters that relate to the operation of responsible government, and thereby affect the effectiveness of the participation of others. 
(The matters just discussed also bear directly on the question of whether paragraph 9(2)(a) is a justifiable derogation of the right of a public servant to exercise their right under HRA paragraph 17(a) to take part in the conduct of public affairs, directly or through freely chosen representatives.)  
Will a prohibition on a communication effectively burden political communication? 
In Monis v The Queen Hayne J said that “[t]he expression ‘effectively burden’ means nothing more complicated than that the effect of the law is to prohibit, or put some limitation on, the making or the content of political communications”. 
It is possible to conceive of conduct by a public servant that would damage reputation in the relevant sense without that conduct being in the nature of a criticism or reflection on the performance of the public service or the Executive. However, in very many cases this will be so and, in particular, in those cases where the communication will be a basis for a misconduct charge. The words of Finn J (in a similar context) in Bennett are appropriate: “[i]ts heartland is concerned with information about political and governmental matters and about the executive organs of the Territory for which ministers are in some measure responsible in our system of government”. 
It is important to take note of the significance of criticism or reflection by a public servant on the performance of the public service or the Executive. Public servants are better placed than others to appreciate that there is room for criticism, and there is a public interest in their views being known to the citizenry. As Finn J said in Bennett v President, Human Rights and Equal Opportunities Commission, “[w]ere it otherwise one could institutionalise a form of public debate about matters of government and public administration that has been described as a ‘dialogue of the deaf’ between those who do not know and those who will not or cannot tell: cf Kernaghan and Langford, The Responsible Public Servant, 89 (1990)”. 
 The point is that in this context the position of public servants cannot be equated with that of other employees. This point may be underlined by reference to observations of McHugh J in Stephens v West Australian Newspapers Ltd:  
In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally.
It is arguable that paragraph 9(2)(a) effectively burdens political communication in an extensive way. The words of Finn J in Bennett are again appropriate: “It is an impediment to the community being informed as to whether "the democratic machinery is in good working order’: Zines, The High Court and the Constitution, 380 (4th ed, 1997)”. This conclusion affects the question of validity, for the High Court accepts that “[i]t is trite to say that the more extensive the burden on political communication the more difficult it will be to justify the impugned law”.  
Is the object of the impugned law compatible with the maintenance of the system of representative and responsible government?  
The Explanatory Statement (at page 7) specifies the object of paragraph 9(2)(a) to be “[t]he need to retain public confidence in the public service”. It is assumed that this condition for compatibility of paragraph 9(2)(a) with the constitutional freedom is satisfied.  
Are the means chosen to achieve that end reasonably appropriate and adapted to achieving it in a manner compatible with the system of representative and responsible government?  
It might be argued that the reach of paragraph 9(2)(a) goes much further than is necessary to achieve the end of retaining public confidence in the public service and of the Executive. 
The question is whether the end sought to be achieved by paragraph 9(2)(a) is achievable only by a prohibition of every communication by a public servant that causes damage to reputation in the relevant ways. It might be argued that public confidence is better maintained by the exposure by public servants (in contexts apart from acting as such) of matters that would in the short-term cause damage. Such exposure might ensure that the matters that cause damage are rectified, thereby enhancing public confidence. Moreover, if the law prescribes that the operations of the public service and of the Executive cannot be criticised by those who are well-placed to make that criticism, public confidence in these institutions might be eroded. 
Using the language of subsection 28(2)(e), there may be less restrictive means to achieve the object desired. The prohibition in paragraph 9(2)(a) ends might be formulated less restrictively. Particular ends, such as the protection of privacy, or of Cabinet secrecy, or security concerns, would be easier to justify. Rather then simply damage to ‘reputation’, the question is whether the damage might be framed more specifically, such as in terms of the efficiency or functioning of the service and the Executive. 
There is an argument that the relevant communication must be shown to be contrary to the public interest. In Commonwealth v John Fairfax and Sons Ltd, Mason CJ said, with reference to the common law doctrine that affords a remedy for a breach of confidence:  
It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action. 
Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.
This comment by Finn J in Bennett v President, Human Rights and Equal Opportunities Commission might be taken to sum up the argument that paragraph 9(2)(a) is invalid as derogating from the Commonwealth Constitution’s freedom of political communication: “The dimensions of the control it imposes impedes quite unreasonably the possible flow of information to the community - information which, without possibly prejudicing the interests of the Commonwealth, could only serve to enlarge the public's knowledge and understanding of the operation, practices and policies of executive government.”