The Fair Work Commission's recent reinstatement of a long-serving Centrelink officer is a blow to the federal government in its ongoing battle over its ability to regulate the private lives of APS employees. Yet the Department of Human Services' decision to appeal suggests it will not give up without a fight.
Over the past decade, frontline Centrelink employee Daniel Starr had anonymously posted work-related comments on internet forums out of hours. Most were of a helpful nature, advising benefit applicants of likely processing times, although some were undoubtedly objectionable: at one point Starr labelled clients "spastics and junkies" and on another occasion he said he was "embarrassed to work" at Centrelink.
Starr's troubles began when he began contradicting a departmental social media officer who posted on the same forum. The officer repeatedly said that the estimated processing time for certain applications was 21 days, while Starr explained that the target had in fact been changed to 42 days. Although his posts were forthright – "Please Flick, you need to stop giving this incorrect information" – they were hardly rude.
In early 2015, this online interaction came to the department's attention, with several managers voicing their displeasure. An investigation identified Starr as the person behind the posts. It was eventually determined that Starr had breached the Australian Public Service code of conduct in several respects, including by "criticising the government", "encouraging members of the public to complain to their local MPs about [Centrelink] service levels" and making "negative comments about the policies and programs of the department". Despite Starr's excellent work record and expression of sincere remorse, the department terminated his employment. Starr promptly sought unfair dismissal relief.
In a decision handed down in late March, Fair Work Commission Vice-President Adam Hatcher weighed into the ongoing debate about the government's ability to silence public servants – a subject of much discussion in previous columns – and regulate out-of-hours conduct. Although Hatcher accepted some of the department's arguments, he stridently criticised its broader position.
"I reject completely the proposition that the APS value ['the APS respects all people'] ... is to be read ... as requiring all members of the APS to be 'respectful' at all times outside of working hours, including in the expression of their attitude to the government of the day," he said. "It would require express and absolutely unambiguous language in the statute to justify the conclusion that such a gross intrusion into the non-working lives and rights of public servants was intended."
In light of the freedom of political communication found at both common law and implicit in the Australian constitution, Hatcher preferred a limited interpretation of the Public Service Act's scope. The code of conduct was not "sufficiently clear and unambiguous to displace the assumption that the Parliament did not intend to interfere" with such rights, "at least not in such a sweeping way". By adopting this interpretive approach, he avoided needing to consider the constitutional validity of the relevant sections.
While Hatcher accepted that persuasive policy arguments might permit limits on the free speech of public servants – "the public expression of political views by public servants in their private time might compromise" the capacity of departmental secretaries, policy advisers and ministerial staff to perform their duties – this had to be a limited exception. The code of conduct was not, he held, "apt to be construed as requiring that all APS employees be apolitical at all times outside of working hours". For these reasons and others, Starr's dismissal was harsh and reinstatement ordered.
It might firstly be observed that the department's suggestion that "criticising the government" constitutes a code of conduct breach is deeply troubling. Modern liberal democracies are built on open and forthright political discussion – criticism of the government should be protected, not punished.
Yet the department's decision to appeal suggests the government is unwilling to submit to Hatcher's restraints on its actions. Notwithstanding the department's attempt, via a media statement, to refocus the case on Starr's "spastics and junkies" comment, which Starr had conceded before the commission was a valid reason for dismissal, the appeal's outcome could have important free speech consequences.
Writing in 2015, as the Scott McIntyre Anzac Day tweeting controversy raged in the industrial relations system, I worried that "a judicial pronouncement on the extent of the government's ability to restrain its employees from making public comment does not appear imminent". With the benefit of hindsight, this statement was overly pessimistic. Less than a year later, the government has suffered two considerable blows in this arena: Starr's unfair dismissal success and the Federal Court case of army reservist Bernard Gaynor (although not an employment relationship per se, the termination of his commission was invalidated on free speech grounds). With both on appeal, further consideration of these thorny issues can be expected.
Indeed, the Department of Human Services may ultimately come to rue appealing against Starr's reinstatement. Hatcher read down the relevant sections despite clear and unambiguous legislative language: the direction that public servants must behave in a way that upholds APS values and APS employment principles is purportedly applicable "at all times". In my opinion (contrary to that of Hatcher), it is hard to read this unequivocal phrase as permitting anything less.
If a three-member panel of the Fair Work Commission is likewise minded, it would be forced to confront the constitutionality of limits on criticism of the government by public servants. That may be a Pandora's box that the department will regret opening.