What does political neutrality require of public servants during an election?

WRITTEN BY John Wilson & Kieran Pender

“Because we have not created,” Paul Finn, an academic and judge, once wrote, “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.”

Readers of this column, largely public servants, would no doubt be relieved to read this. Few would want to be second class citizens. Yet Finn was not finished. We “equally accept”, he added, that public servants would sometimes need to “subordinate their private interests”, particularly where they “could cause the actual or apparent compromise of the official”.

This tension, between public servants as equal members of the community, and as needing to subordinate their personal interests, is a frequent theme of this column. With an election imminent, the issue becomes particularly acute. Accordingly, it seems an apt time to consider the constraints on public servants during election season. What does political neutrality require of public servants during this most political of times?

The starting point is the Constitution. Section 44 provides that those who hold an “office of profit under the Crown” are ineligible for election. This means that any public servant wanting to run for office must resign before doing so. As much was made clear by the High Court in a rather unfortunate case in the early 1990s, Sykes v Cleary.

A Victorian school teacher, Phil Cleary, had been on leave without pay for two years, prior to a by-election to replace Bob Hawke in federal parliament, where he ran as a candidate. Cleary was subsequently elected, but as he had failed to resign from his employment prior to the election, the High Court ruled him ineligible. To address this constitutional requirement, section 32 of the Public Service Act 1999 and the APS Commissioner’s directions now provide a “right of return” for ex-public servant electoral candidates who do not succeed at the ballot box.

Of course only a very few public servants will actually run for office each election. Perhaps the more pertinent question is the extent to which APS employees can engage in political activity in the lead up to the election, and on election day. The APS Code of Conduct, in the Public Service Act, provides that public servants must “at all times” uphold the good reputation of the public service and the APS values. One such value is “impartial” – that the service is “apolitical”. The extent to which this constrains private political involvement is the difficult question, in light of the tension identified by Finn. The answer is not entirely straight-forward, but we will endeavour to provide some practical guidance.

First, the APS Commission, in APS Values and Code of Conduct in Practice, states 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, the guidance adds “if an APS employee has a significant role in a political campaign, there is potential for a conflict of interest … The employee should discuss such potential conflicts with their agency.”

The CPSU has also published its own interpretation which, while not authoritative, we consider to be a helpful starting point. The union advises that public servants “should not campaign during work time, use work resources for campaigning, or behave in a way that might infer that your political campaigning is part of your official duties or that your employer supports your political views.” However, in their own time, public servants can: “attend political rallies or functions; display campaign posters on your property; [do] letterboxing, door-knocking and other volunteer campaign work; [and] hand out how-to-votes on election day.” So, provided they do it in their own time, most public servants can engage in ordinary political activity in the weeks leading up to the election.

In the modern era, much political activity takes place online – on social media. In another APS Commission document, Social media: Guidance for Australian Public Service Employees and Agencies, the Commission suggests that “there are three key factors that can increase or mitigate the risk: the employee’s seniority, the relationship between the topic of the post and the employee’s work, and how extreme the expression of their view is.” This is good advice, and not only applicable to social media (as the guidance recognises, noting that “the principles of balancing personal rights and employment obligations apply to a range of private behaviour for APS employees – like handing out how-to-vote cards, attending rallies …”).

In our view, then, most public servants can participate in electoral activity. At a more senior level (particularly in the SES), there is greater risk – senior public servants might consider giving the how-to-vote duties on election day a miss. But for junior and mid-level public servants, an incident of not being a second class citizen is the ability to participate in the election as a citizen.

We would recommend that whether attending rallies, door-knocking or speaking up on social media, public servants not indicate their affiliation with the APS, avoid inflammatory language and steer well clear of discussing issues with a nexus to their area of work or agency. Mentioning the intention to participate in electoral activity with a supervisor might also be well-advised.

Of course we are aware that there can be a disjunct between the law, APS Commission guidance and reality. We have heard, anecdotally, of stern words being expressed to public servants about the need for political neutrality on social media during the campaign period. Different agencies, and supervisors within, may interpret the law and guidance differently.

But it is our view that now is a time when public servants should (within reasonable limits) feel more free, not less, to participate in politics. The rules and restrictions around public servant political engagement, such as on social media, are designed to protect community perceptions of the APS’s impartiality. That is an important purpose. Yet as Finn observed, public servants are equal citizens, too – equal participants in our electoral democracy. That democratic entitlement does not start and end at the ballot box, but encompasses a wider range of political activity. Within reason, public servants can take part in electoral activity in the weeks ahead.

The above article was written for and published in the Canberra Times.

For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.

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