The vexed question of public sector impartiality is again on the agenda. In response to a number of open letters by public servants in relation to the situation in Gaza, the public service has been busy reminding staff of their obligations of political neutrality.
As long-time readers of this column know, the limits of this obligation has been a frequent concern of ours (in the case of one co-author, dating back over two decades to a case where the Federal Court invalidated a predecessor of the APS Code of Conduct on free speech grounds). With the federal election due in less than six months, it seems timely to revisit the topic.
The dilemma between respecting the political rights of public servants, as members of our society and our democracy, and protecting the public interest in a neutral public service, is not new. For a time, more than a century ago, Victoria experimented with separate parliamentary constituencies for public employees. That experiment did not succeed, and ever since Australian public services at all levels have sought to limit the political activism and speech of their employees.
But “because we have not created,” once wrote scholar and judge the late Paul Finn, “a separate caste of public officials, because we have not relegated our officials to the status of second class citizens, we accept — and indeed promote — the idea that our officials will be of the community, will share in the pool of beliefs etc to be found in the community and will in some measure be expected both to voice and to act upon them.” Where do we draw the line?
The starting point is the Code of Conduct, in the Public Service Act, with which all public servants must comply. Section 13(11) provides: “An APS employee must at all times behave 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.”
One of those APS Values is that the public service is “impartial” – the “APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.”
In Banerji, a 2019 case involving a public servant anonymously tweeting criticism of Australian immigration policy, the High Court rejected a constitutional challenge to the validity of the Code. However, as Justice James Edelman pointed out, the Code does not prevent any political commentary (on social media or otherwise) by public servants. Rather, the Code “creates a boundary, albeit ill-defined, between acceptable expression of political opinions and unacceptable expression of political opinions.” The line will only be crossed “when comments sufficiently imperil the trust” between the APS, government and the public.
In undertaking that assessment, Edelman set out several relevant factors – which have subsequently influenced the Australian Public Service Commission’s guidance. These include the seniority of the public servant – a senior executive is more constrained than an APS 4 – and the nexus between a public servant’s comments and their work area. An Department of Climate Change employee tweeting about climate policy may be in hot-water, whereas writing a letter to the editor of this publication about insufficient arts funding may be less dicey.
The nature and tone of the commentary (“upon a spectrum that ranges from vitriolic criticism to objective and informative policy discussion,” as Edelman said) and whether it was intended or foreseeable that the commentary could be linked to the APS are also relevant.
Although much focus in recent years has considered employee speech, these restrictions and considerations are equally salient in other aspects of political engagement. The Australian Public Service Commission’s guidance on the Code provides, for example, that “APS employees may participate in political activities as part of normal community affairs. They may also join, or hold office in, political parties.” However, public servants must bear in mind the risk of conflicts of interest.
In a personal capacity, public servants can attend rallies and engage in political campaigning – although again conflict of interest concerns and the risk to public perceptions should be considered. Additionally, public servants are not permitted to run for elected office – due to a constitutional prohibition – although APS employees who resign to seek election are entitled to re-engagement if unsuccessful, in certain circumstances.
There is another thing to remember – praise undermines neutrality just as much as criticism. While most disciplinary cases we have seen involved public servants criticising the government or government policy, the Code is equally applicable to overt applause for policy and government activities.
Last year, the NSW Ombudsman issued helpful guidance which made this point. “If it would not be ok to say ‘I am ashamed to have worked on this Government policy’, then the safest course would be to assume that it may also not be ok to say ‘I am proud to have worked on this policy,’” the guidance said.
The upshot of all of this is, somewhat frustratingly but all too often with the law, “it depends”. There are few hard and fast rules – much will depend on the particular public servant and their particular political activity. Indeed, while the Commission’s guidance has improved following Banerji – there seems, to us, to have been a great engagement with the nuance and less blanket restrictions – the day-to-day reality across agencies will vary. Ultimately, whether a particular tweet is referred for Code of Conduct will depend not on the Commission’s policy documents but on decision-making at a department level.
Regrettably, the effect of this uncertainty is all too often chilling – public servants stay silent, and avoid political activity, because the risk of falling on the wrong side of the line is too great. That is a pity. Public servants should not be, as a Canadian court once exhorted, silent members of society. But we can certainly understand why, for many, that remains the rational choice. Our democracy is worse for it.
If you have any questions or queries about the information in this summary, please contact the BAL Lawyers Employment Law & Investigations team on 02 6274 0999.
First published 04 November 2024 in the Canberra Times – ‘If public servants are made ‘silent members of society’, democracy is worse for it’