BY ANTHONY GRAY

In 1992 the Australian High Court recognised that the democratic nature of Australia’s Constitution required freedom of communication that was ‘political’ in nature. Though some matters have been resolved, the limited case law means that many of the contours of the freedom remain to be mapped.  One little litigated aspect of the implied freedom has been the extent to which it protects public sector employees who wish to express a view on what are considered to be ‘political’ questions.  Obviously, the Westminster tradition suggests that public servants are independent of the government of the day, and should provide frank and fearless advice to it.  To do that, a public servant must not fear losing their employment because of the advice they give.  Of course, this is not always the reality of Australian governance; however, it is a key plank of the system of government we have largely adopted.

These matters have recently garnered attention.  In 2017 the Australian Public Service (APS) released a guide for employees about posting on social media.   The guide acknowledges APS values including that the public service is apolitical and provides frank and honest advice.  It adds that employees should not engage in behaviour that might cause a reasonable person to conclude that the employee cannot serve the government impartially or implement government policies professionally.  The guide suggests an employee who criticises the work or administration of their agency will usually be in breach of the Code of Conduct, and liable to sanction including dismissal.  This would include criticism of politicians, including ministers, shadow ministers, or spokespersons of minor parties.  It stated that ‘vehemently anti-government’ statements would trigger a Code investigation.  It cautions that if an employee does nothing about posts to their social media page that criticise government, this can be dangerous for the employee, because it could be seen as the employee endorsing the material.  So could simply ‘liking’ material, or sharing a post, at least without an appropriate disclaimer.  The Code of Conduct has statutory force, thus potentially implicating the implied freedom of political communication.

Earlier in 2018, in Banerji and Comcare (Compensation), the Administrative Appeals Tribunal found that the dismissal of a government employee because of her use of social media to criticise government immigration and defence policy was problematic.  The Tribunal found that her termination had unacceptably trespassed on the complainant’s implied freedom of political communication.  It was particularly important in that case that the complainant had made the posts anonymously, rather than identifying herself as a public sector employee.  The Tribunal also noted in that case, partly relying on Canadian precedents given the lack of relevant Australian precedent, that other relevant factors would include how senior the particular employee was who made the posts, and the extent to which there was a connection between the topic of the posts and the duties of the public servant.  The government has indicated its intention to appeal this Tribunal decision, and media have reported that the Commonwealth Attorney-General has intervened to ask the High Court to provide definitive guidance on the question of the constitutionality of restrictions on public servants’ communications about political matters.

There is certainly an important question regarding whether these provisions are consistent with the implied freedom.  On one view, public servants can have inside knowledge of the workings of a government organisation to which others outside it are not privy.  Given that taxpayers’ money is involved, and the organisations are under the control of an elected and accountable government, communication by a public servant about the inner workings of a government department, its policies and its personnel, would be political communication.  A law preventing its disclosure would burden that communication.  Under the approach now accepted by a majority of the Court, the Court would consider whether the laws were directed to a legitimate objective, were necessary, suitable, and adequate in their balance.  The government could argue that there is a need to maintain confidentiality of information about government activity, for instance activity that involves the safety and security of the nation.  The government could demonstrate that was a legitimate objective, so regulation of communication that would breach confidentiality in that context might be necessary, suitable and adequate in balance.  On the other hand, a broad-brushed policy, that does not differentiate between information that really must be kept confidential for emphatic reasons from information that is probably just embarrassing for the government to have in the public realm, does raise constitutional questions.  It might not be ‘suitable’ or ‘adequate in its balance’ in that context.

The implied freedom of political communication in the context of public servants was considered recently regarding a member of the Australian Defence Force (ADF), Mr Gaynor.  There is an ongoing debate about ADF culture.  In the past the organisation was seen as having a ‘blokey’ culture which marginalised women and others who did not fit a narrow stereotype.  Recently ADF has sought to build a strongly inclusive culture where everyone would be welcomed and respected.  Some would applaud Defence’s moves in that direction; some might say that Defence had gone ‘too far’.  Mr Gaynor was assuredly in the latter category.  It is necessary to discuss some detail of what he said, in order to discuss relevant issues.  Having said that, some readers may find Mr Gaynor’s comments offensive, as I personally do, and hurtful.

Mr Gaynor made the following statements on social media or through press release:

  • he would not ‘let’ a gay person teach his children, and was ‘not afraid to say it’;
  • he complained about teachers who ‘promoted a homosexual lifestyle’;
  • he claimed the ‘homosexual lifestyle’ had serious negative health consequences and was opposed to the values of most Australians;
  • he was critical of Defence’s policies of inclusion towards gay personnel, women and transgender officers, the Gay Mardi Gras and claimed individuals in defence uniforms should not march in it;
  • he claimed it was a ‘joke’ that women served on the front line;
  • he disagreed transgender staff could perform leadership roles and made disparaging remarks about transgenderism;
  • he tried to link what he saw as Defence failures overseas with women serving in combat roles.

Mr Gaynor was warned not to continue making these public statements.  When he did so, he was dismissed.  Mr Gaynor brought legal action, based partly on the implied freedom of political communication.  He won at first instance, however this decision was overturned by the Full Federal Court in Chief of the Defence Force v Gaynor.  That Court found the disciplinary provision was directed to a legitimate objective, and was suitable, necessary and adequate in its balance.  Defence management had to have the power to enforce discipline, and to remove unsuitable individuals.  The Court said the issue was mainly the ‘tone’ used by Mr Gaynor, rather than the content.  The High Court refused leave to appeal.

While the tone of Mr Gaynor’s comments was intemperate, and the content no doubt offensive and hurtful to many, on one view he was (partly) discussing a relevant, contentious issue, which was the adoption by the ADF of inclusion policies which, in his opinion, had gone too far.  Admittedly, he also made general disparaging and hurtful comments about people with no ‘political’ angle.  To the extent his comments related to specific ADF policies, they may be entitled to constitutional protection as a contribution, of dubious quality though they may be, to a political discussion.  While government may sometimes have a legitimate objective in limiting the contribution that public servants might make to public discussions, for instance where they are in possession of classified security material the release of which would seriously compromise the safety and security of the nation, the comments were not of that ilk.  Arguably, government sought to censor them because they were embarrassing.  It was embarrassing to have a government employee criticise a government department’s policy.  On one view,  this is not sufficient to shut down discussion, or justify disciplinary measures against the individual.  To do so discourages other public servants from contributing to public debates of which they might have valuable ‘inside’ (but not classified) information or experience that it might be useful for the public to hear.  There is concern that the APS’s new social media policy will similarly have a chilling effect on legitimate political debate.

Of course, this argument acknowledges Mr Gaynor is likely to have caused others hurt by his comments.  He could have expressed himself in more measured tones.  He should have considered the possible impact his statements might have had on the self-esteem and feelings of others.  And partly at least, his comments did not concern defence policy, but was general commentary about homosexual and transgender people, what he called ‘homosexual lifestyles’ (a phrase which some would find offensive), and whether he accepted the notion of a homosexual teacher.  These parts of his speech may not warrant protection as ‘political communication’ because they do not concern any politically contentious issue, but arguably simply amount to abuse.

If the promise of the political free speech cases is to be fulfilled, there must be room for insiders who have personal experiences and knowledge to share.  We may or may not agree with any contribution that is made, but that is irrelevant.  Respectfully, whether they make their views known in polite or rude tones is irrelevant.  Just as courts cannot be arbiters of what ideas can be expressed; nor can they be arbiters of how ideas are expressed.  It is hoped that the High Court will provide needed clarity on the compatibility of restrictions on public servants’ ability to communicate about political matters with the implied constitutional freedom in the upcoming appeal in the Banerji decision.

 

Anthony Gray is a Professor in the School of Law and Justice, University of Southern Queensland and researches and teaches public law.

Suggested citation:  Anthony Gray, ‘Freedom of Political Communication and Public Servants’ on AUSPUBLAW  (22 August 2018) <https://auspublaw.org/2018/08/freedom-of-political-communication-and-public-servants/>