For almost 170 years, Australian public servants and their colonial predecessors have grappled with a perplexing dilemma. Government employees are equal members of this democracy and should be entitled to participate in democratic processes; we have not - as former judge Paul Finn observed - "relegated our officials to the status of second class citizens". Equally, Australia's model of government relies on an impartial bureaucracy. A partisan public administration would be disastrous, and certain safeguards are needed to prevent politicisation.
Since Victoria first directed its public servants to abstain from "political partisanship" in 1856, regular attempts have been made to strike an appropriate balance between these two competing interests. For most of the subsequent century and a half, policy-makers erred on the side of caution: the first federal public servant regulations in 1902 demanded that public servants not "discuss or in any way promote political movements".
Attempts were made to repeal the most onerous of these restrictions in the 1970s and 1980s, before the rise of social media saw the pendulum swing back towards a draconian approach. In 2014, one department told its staff to dob in colleagues for posting political criticism; last year, the High Court rejected Michaela Banerji's challenge to her dismissal from the Department of Immigration for anonymous political tweets.
It is in the context of this history that the Australian Public Service Commission on Monday published its latest social media guidelines for public servants. The guidance builds on the High Court's judgment in Banerji, and offers renewed clarity for government employees who wish to tweet, Facebook or TikTok. And - credit where credit is due - it is an improvement on the previous guidelines.
The guidance begins by acknowledging that "APS employees are entitled to private lives, personal views and political opinions". It then sets out the compelling need for an impartial public sector, and hence why some regulation of public servants "extends into our private lives."
The APSC focuses on three risk factors that were identified in Banerji: seniority, connection between the topic and work, and the tone and language of the particular expression. Each factor is reasonable. The social media commentary of an APS3 is unlikely to erode public confidence, whereas that of a departmental secretary might. It is common sense that criticising the work of your own agency is more problematic than a Home Affairs employee writing about climate change policy. Vitriolic tweets are similarly more likely to impact public confidence than mild-mannered analysis (even if, as the guidelines note, "this does not mean that APS employees must always be positive, polite, or even neutral online - the range of acceptable expression is broad").
While the new guidance is hardly a dramatic shift from the previous iteration, it does display greater nuance and understanding of the genuine tension that exists in regulating the social media activity of public servants. For that, the APSC should be commended.
One particularly noteworthy change is the guidance on positive online comments. There is a troubling pattern in recent disciplinary cases in this context: all involved criticism of the government or government policy. It might be doubted whether Banerji would have faced the same departmental response if her anonymous Twitter feed had praised government policy and politicians, rather than attacked them. The prior guidance said that the restrictions do not "stop you making a positive comment on social media about your agency".
But public perceptions of neutrality are eroded by overt praise just as much as they are by damning criticism. The new guidelines make this exact point, warning against both criticism and praise: "both can call into question your capacity to be impartial". Whether we will indeed see a more even-handed approach remains to be seen.
That truism points to the broader challenge: the new APSC guidance may be a positive step, but the chilling effect from Banerji and other such cases will linger. There is inevitably a gulf between what the APSC say and what happens in reality across the public service. Despite the new guidelines, it is likely that public servants will continue to self-censor; even if their prospective online comments do fall on the "right" side of the line, who wants to face the risk of Code of Conduct proceedings?
It is promising that the APSC has underscored the importance of public servant participation in our democracy. Yet countering the residual chill requires deeds, not just words. Until public servants witness genuine cultural change within their departments, many will stay silent. That is not good for Australian society.
- Kieran Pender is a lawyer and writer. He is a visiting fellow at the ANU College of Law.