The recent publication of the Department of the Prime Minister and Cabinet's social media policy provoked a considerable reaction. For some commentators, it represented the latest salvo in the Abbott government's war on the public service. For others, including an editorial in The Canberra Times, it reflected ''moral panic'' on the part of senior bureaucrats who are paranoid about any expression of political views by their rank and file. Members of the Human Rights Commission were publicly at odds over the policy's merits. Letters to the editor, in Canberra at least, ran hot, as public servants, past and present, gave their opinions, both for and against.
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In essence, the policy warns public servants against any communication on social media, whether personal or professional, that may call into question their ability to act in a professional and politically impartial manner. Specifically, it warns against ''harsh or extreme'' criticism of government policies or comments that may compromise public confidence in PM&C or the Australian Public Service. It also says employees who are aware that colleagues are acting in breach of the policy will be expected to inform their superiors, a requirement that has been criticised for encouraging a sneaky culture of dobbing in one's workmates.
When read in its entirety, the policy is less draconian than much press reporting and commentary may suggest. As Public Service Commissioner Stephen Sedgwick has implied, PM&C's policy largely restates existing policy as promulgated by the Public Service Commission in 2012. It repeats the commission's proviso: that public servants ''may take part in the political life of their communities'' and may ''from time to time seek to participate robustly, like other members of the political community, in public policy conversations''. Like the commission, it emphasises the need for sensible judgment to assess the likely impact of any remarks published on the internet. One test when commenting on policy issues is ''whether a prime minister, from either political party, having read the material, would feel confident that any advice from you was impartial and balanced''.
The example given of inappropriate personal use of social media in the PM&C policy is hardly controversial in terms of long-standing conventions of political impartiality and discretion: it imagines a public servant who has inside knowledge about a particular area of the department's work and chooses to use social media to air ''concerns, disagreement and/or anger'' with the government's policies or is ''highly critical'' of the department, minister or the prime minister. Statements of this nature, if made in public, would generally be recognised as unprofessional and in breach of the APS code of conduct.
The critical issue is whether social media messages are, in fact, public statements. For many users, social media are simply convenient means of communicating with friends and family, in which messages are intended for circulation within a small circle of personal acquaintances. Comments on government policies or departmental colleagues are essentially like confidential conversations in the home or in a cafe. On this view, social media should be viewed as privileged private communication, like phone calls or personal letters, beyond the legitimate concern of the government as an employer.
However, government authorities are insisting that the technology used in social media communication places their messages in the public realm. As Sedgwick argues, material posted online has a long lifetime, may be copied extensively and may be received by people who were never intended to read it or who may take it out of context. Social media messages should therefore be treated more like letters to newspapers or statements at public meetings, outlets where public servants have always been expected to tread carefully. On this view, the ''new'' policies can be seen as attempts to apply existing policy to new circumstances, not as new encroachments on existing freedoms.
In principle, the argument is sound. Social media do contain a new element of risk for governments in terms of the possible circulation of their messages and their capacity to undermine the public service's public face of professional unity and loyalty to the government of the day.
Moreover, the stated expectation that public servants will inform on colleagues engaging in improper communication can be seen as reaffirming a professional duty not to condone misconduct in colleagues. To some critics, this appears as encouraging a sneaky culture of dobbing in. But, once the seriousness of the offence is conceded, dobbing in becomes legitimate whistleblowing. Willingness to report on colleagues, we should remember, has been in regrettably short supply in some areas of government, such as the police, defence forces and customs, where collegial solidarity has fostered cultures of misconduct and corruption.
The difficulty with internet communication is in deciding when the risk is serious enough to justify a charge of misconduct. Everything depends on the context. How politically sensitive is the subject matter of the message and how closely related to the actual work of the message-sender? How senior is the message-sender in the departmental hierarchy? How widely is the message circulated in the first instance? If a posting is made anonymously, how open to discovery is the true identity? The variables are almost endless and the room for discretion in deciding when the limits have been crossed is similarly extensive.
How strictly the limits will be policed remains to be seen. One recent case is that of an Immigration Department official, Michaela Banerji, who was sacked in part for using a Twitter account under a pseudonym to criticise government policy on asylum seekers - an action that was held to be in breach of the APS code of conduct. In her defence, Banerji argued that her constitutional rights of free speech had been infringed. The case was scheduled for a hearing in the Federal Court but was settled out of court. An opportunity was therefore missed for securing a legal interpretation of where the balance should be struck between the public servant's rights of free speech and the government's right to enforce its code of conduct, including the restrictions on public statements.
A considered legal judgment would probably find that the Public Service Act and its associated code of conduct do allow public service employers to discipline their employees in relation to public utterances. In this respect, public servants who wish to continue in their employment do not enjoy the same rights of political speech as other citizens. The key question is not whether they enjoy the same rights as others (which effectively they do not), but how far these rights may be legitimately curtailed, particularly in a new era of electronic communication. The new Human Rights Commissioner, Tim Wilson (dubbed the ''freedom commissioner''), considered the general principles in a recent article in The Canberra Times. He argued public service employers can legitimately enforce codes of conduct that restrict communication that undermines the perception of impartiality, particularly in relation to their specific area of work. But otherwise, in his view, public servants' rights of democratic speech must be protected.
Some anti-Coalition commentators were quick to misread Wilson's argument as a blanket attack on all free speech by public servants. Indeed, the Human Rights Commission's President, Professor Gillian Trigg, herself interpreted her colleague as arguing ''that public servants have no private opinions and no right to speak''. Informed public debate on this issue needs to recognise that no one is seriously denying all rights of free speech to public servants. The argument is one of balance. In the new era of electronic communication, where is the line to be drawn between the public servant's right to speak out and the government's right to insist on public loyalty from its public servants?
One response to the new risk might have been for the public service leadership to adopt a more robust and thick-skinned approach to the possibilities of occasional embarrassment and exposure of dissidence within the ranks. Intelligent and committed public servants are bound to have their own personal opinions, sometimes critical of government policy. What is the harm in having these opinions sometimes exposed inadvertently, through accidental circulation to a wider audience than that intended by the writer?
Certainly, members of the news media and other government watchers would welcome such a relaxed attitude from the public service leadership. In similar vein, they have also hoped that freedom of information legislation, another relatively recent innovation, would herald a new era of government frankness and transparency.
However, FOI has not yielded the level of access to confidential policy debates and controversies that its champions have been looking for. Senior public servants have made every effort to conceal evidence of internal divisions.
The same mindset is at work in the policy on social media. Such caution, however, is readily intelligible in the current political climate. For both Labor and Coalition leaders and their cohorts of advisers, projecting a positive and unified media story has become the prime object of governing. Bureaucrats are accepted as back-room partners in developing and implementing policies but only so long as they do not fracture the image projected out front. Senior public servants know that securing the confidence of ministers and their minders requires running a very tight ship in terms of their departments' media profiles.
The pressure will be felt particularly strongly within PM&C since the change of government. The department answers directly to the Prime Minister, whose chief of staff, Peta Credlin, is notorious for her ambition to control the government's media message. As the leading department in policy coordination, PM&C's major imperative is to win the trust of the new Coalition ministry, many of whom have doubts about the competence and political loyalty of the APS. At the same time, the department has also been required to incorporate new areas such as Aboriginal affairs, whose staff might not be imbued with the traditions of political deference ingrained in central agencies.
In such a context, the new PM&C policy on social media represents an understandable shot across the bows fired by a risk-averse leadership at potentially careless juniors. But it does not break new ground in terms of principle and, contrary to some of the more knee-jerk commentary, it is unlikely to lead to a new era of 1984-style surveillance within the APS.
Richard Mulgan is an emeritus professor with the Crawford School of Public Policy at the Australian National University. richard.mulgan@anu.edu.au
