The belief that Australia – a liberal democracy – confers certain inalienable rights and freedoms on its citizens is widespread but mistaken. Freedom of speech protections, for example, are not enshrined in the constitution, only implied. And while the High Court has upheld the implied right to free speech in regards to governmental and political affairs, it's ruled this freedom is limited to what is necessary for the effective operation of representative and responsible government.
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Social media has provided new avenues for individuals to comment on and criticise governments, their policies and those charged with carrying them out. While official responses to this were tardy to begin with, the counter-insurgency is now well under way. And the Barr Labor government is in the vanguard.
Its bill to amend the Public Sector Management Act explicitly prohibits public servants from making comments on social media outside of their official duties which are likely to result in reputational damage to their employers. And the bill's explanatory statement makes clear that whatever an individual's right to privacy, freedom of expression or participation in democratic processes, these are outweighed by the "need to retain public confidence in the public service".
The amendment bill also seeks to oblige public servants to report any "maladministration or misconduct of which they become aware", and the supposition being made in some quarters is that this is a further attempt to muzzle adverse comment or criticism of executive or administrative actions.
Why governments and bureaucracies should affect particular sensitivity to social media posts or tweets is a mystery. Many social media commentators are individuals of no great reliability, or have obvious axes to grind. It's usually only when attempts are made to punish critics that their otherwise ephemeral outbursts become public knowledge. That said, however, there have always been policies prohibiting or discouraging public servants making adverse public comment about their employers. Understandably. The private sector is even less tolerant of employees who talk out of turn.
Where waters become muddy, however, is when employees claim to have posted their criticism outside work hours and as a private citizen expressing personal views. An Immigration department employee caught making critical comments on Twitter about the federal government and its policies used this argument to try to overturn her dismissal. She failed, with the judge making it clear there is no unfettered right (or freedom) of political expression/communication.
In its defence, the department also invoked the APS code of conduct, which characterises unofficial public comment by an employee "harsh or extreme in its criticism of the government ... and their respective policies" as "inappropriate" – but which contains no specific strictures on social media activities. That's changing. In 2014, the Department of the Prime Minister and Cabinet issued a social media policy, along with an injunction for employees to report any conduct in breach of that policy. Now the Barr government is following suit. However regrettable this development may be, ACT public servants can't say they haven't been warned.
