The paper follows controversy over Banerji and other litigation, alongside recent legislation in the ACT that I discussed in an Alternative Law Journal item. It sits somewhat oddly with statements, noted in this blog, by Public Service Commissioner John Lloyd regarding the Freedom of Information Act (Cth)
The Commission comments
5. The rights and responsibilities of public servants as private citizens has been an area of debate and evolution since the establishment of the APS. From the outset Governments have passed legislation to ensure that public servants in their private lives observe basic standards of behaviour. The Public Service Act 1902, for example, allowed for the dismissal of officers for ‘any disgraceful or improper conduct.’
6. This debate has included the question of whether public servants should be free to make public comment, whether that be about the work of their agency, the political issues of the day, or any other matter. In 1902, for example, APS employees were forbidden from discussing or promoting political movements or from commenting on any matter to do with the administration of their agencies.
7. This is not unique to the public service. However, APS employees face a particular concern. There are increasing calls that they should be able to participate more fully in the political affairs of the Commonwealth without risk to their employment. Media articles discussing policies limiting the rights of public servants to express their views are typically accompanied by strongly negative reactions on social media platforms.
8. These comments draw a distinction that emphasises the unusual position of APS employees. APS employees are at the same time employees of the Government and citizens. As employees they have obligations to their employer, but as citizens it is argued that they should be able to participate in political activities as freely as other citizens. Some commentators have gone so far as to suggest that as public servants they are often uniquely well-placed to contribute to discussion about the development of public policy.
What is the current APS guidance on making public comment?
9. The current Australian Public Service Commission guidance, published in APS Values and Code of Conduct in Practice, recognises that APS employees can make public comment in a number of different capacities: a. in a professional capacity on behalf of their employing agency b. in a professional or expert capacity as a private citizen c. as a private citizen.
10. The guidance adopts the principle that APS employees may generally make public comment in an unofficial capacity, so long as the comment is lawful and the employee makes it clear they are expressing their own views.
11. However, as exceptions to this principle it states that it is not appropriate for APS employees to make comment that is, or could reasonably be perceived to be:
a. being made on behalf of their agency or the Government, rather than an expression of a personal view
b. compromising the employee's capacity to fulfil their duties in an unbiased manner—this applies particularly where comment is made about policies and programs of the employee's agency
c. so harsh or extreme in its criticism of the Government, a Member of Parliament from another political party, or their respective policies, that it raises questions about the employee's capacity to work professionally, efficiently or impartially
d. so strong in its criticism of an agency's administration that it could seriously disrupt the workplace
e. a gratuitous personal attack that might reasonably be perceived to be connected with their employment
f. compromising public confidence in the agency or the APS.
12. The guidance also recognises that employees of the Senior Executive Service have a particular responsibility. It notes that because of: the influence that they carry with stakeholders, and because they are likely to be required to advise on, or lead, the implementation of government policies and programs, SES employees should be particularly careful when making public comment.
13. The guidance also notes, importantly, that making public comment anonymously, or using a pseudonym, does not protect an employee from any subsequent action. There are a number of cases where APS employees who had used pseudonyms were identified and found to have breached the Code of Conduct in the comments they had posted on social media platformsThe Commission goes on to ask 'What is the legal basis for the position?', stating
14. Section 13(11) of the Public Service Act 1999 (the Act) obliges APS employees to behave at all times in a way that upholds: a. the APS Values and APS Employment Principles; and b. the integrity and good reputation of the employee's Agency and the APS.
15. The APS Values are set out in section 10 of the Act. One of the Values is Impartial: The APS is apolitical and provides the Government with advice that is frank, honest, timely, and based on the best available evidence.
16. Under section 11 of the Act, the Australian Public Service Commissioner may issue directions for the purpose of determining the scope or application of the Values. These directions are binding on all APS employees.
17. The directions state that the Impartial Value requires APS employees, among other things, to
a. ensure that their actions do not ‘provide grounds for a reasonable person to question the ability of the individual to serve the Government of the day’, and
b. implement Government policies in a way that is free from bias.
18. Section 13(11) of the Act requires employees to behave in a way that upholds the good reputation and integrity of their agency and the APS. This places a positive obligation on employees. a. It is not necessary to establish actual damage to the reputation of the agency or the APS in order to find that this section has been breached. b. A public servant agreeing with critical comments about government policy may not be consistent with this requirement, particularly if their agency is responsible for the development or delivery of that policy.
19. Section 13(5) of the Act requires APS employees to comply with lawful and reasonable directions given to them by their employer in connection with their employment. This power has been used to regulate the out of hours conduct of APS employees where there is a connection to the workplace.It notes
20. Employers in both the public and private sectors can take steps to regulate the private behaviour of their employees if there is a sufficient connection between the workplace and the behaviour in question.
21. For example, to reduce the risk of harassment an employer can direct an employee not to contact a colleague outside of working hours or away from work premises. It is well recognised that disputes between employees can have an impact on relationships in the workplace. Employers have a right to take reasonable, proportionate steps to protect their own business interests.
22. This has included action taken by employers to dismiss employees who abuse each other, or attack their employer, on social media platforms.
23 In the Australian Public Service, the Code of Conduct does affect the private lives of APS employees. Section 13(11) of the Code expressly applies ‘at all times’, for example. Other sections of the Code have a similar effect even where there is no express term. Section 13(8), for example, forbids employees from misusing Commonwealth resources. It is clear that this applies at all times, even though that is not stipulated in the legislation.
24. Other sections of the Code apply ‘in connection with the employment’ of the employee. These sections also apply to out of hours activity where there is some connection to the workplaceAfter discussing private sector practice it concludes
40. Social media guidelines developed more recently go beyond managing the risk of content and focus as well on managing the risk of use. Many identified as risk to their agencies the possibility that information about an employee’s identity could be obtained from social media, and how that information can be used for identity fraud purposes and/or to compromise the integrity of employees.
41. Some organisations highlight the risk to ICT infrastructure that the personal use of social media on work platforms may represent. This included the possibility of importing viruses or malware, using common passwords across platforms, or even the possible impact on office bandwidth usage. In relation to use of social media at work, this guidance included matters such as performance of duties and productivity.PSC 'Questions for consideration' are
1. Should APS employees be prevented from making public comment on all political issues? Should there be different rules for different groups of APS employees?
2. Should APS employees be prevented explicitly from making critical public comment about services or programs administered by their agencies?
3. Should senior public servants have specific limitations about making public comments?
4. Should public servants posting in a private capacity be able to say anything as long as it includes a clear disclaimer stating that the opinion they have expressed is purely a statement of their own opinion and not that of their employer and is otherwise lawful?
5. Are the requirements of the APSC guidelines expressed clearly? Can they be made simpler and easier to understand?