Public Servants, Social Media and the Constitution

BY GARY HANSELL AND ADRIENNE STONE

05.09.2017

Although the implied freedom of political communication is now a well-established principle of Australian constitutional law, it does not appear to be widely understood. Some evidence of this is seen in the recently promulgated  ‘Making Public Comment on Social Media: A Guide for Employees produced by the Australian Public Service Commission.

The Guidelines are designed to assist public service employees in understanding the Code of Conduct, contained within and given a statutory footing by section 13 of the Public Service Act 1999 and to guide their conduct in the use of social media.

The Guidelines are short and, on the surface, straight-forward. There are, however, two references to the implied freedom of political communication under the Constitution that reveal a more troubling complexity.

First, the Guidelines state as follows:

The implied Constitutional freedom of political communication is not a protection of free speech for individuals. It operates as a limit on the power of the Parliament to make laws unduly restricting speech.

Second, the Guidelines indicate that there is nothing in the Australian courts’ jurisprudence to indicate any incompatibility of the Code (or its underlying Act) with the doctrine:

None of the litigation brought before various courts has successfully argued that the Public Service Act, or the Code of Conduct, amounts to an undue limitation of the freedom of political communication.

These two statements seem designed to discourage public service employees from the belief that the Constitution might provide protection for their right to engage in political communication.  Both statements are apt to mislead.

1. The implied freedom of political communication is not an individual right

First, the characterisation of the implied freedom of political communication as not analogous to an individual right of freedom of expression is, strictly speaking, supported by judicial dicta. The High Court has many times affirmed that the freedom of political communication is not a ‘personal’ or ‘individual’ right and draws a distinction between the freedom of political communication and express rights to freedom of expression. However, in substance the freedom does operate in a rather similar fashion to rights of freedom of expression in other jurisdictions.

As Professor Stone has previously explained here, the idea that the freedom of political communication is not a ‘personal’ or ‘individual’ right encompasses at least three ideas:

• First, its rationale is institutional. That is, it is designed to ensure the proper working of institutions of representative and responsible government rather than an interest (like autonomous self-development) associated more directly with the individual;

• Second, it operates as a negative limit on governmental interference with political communication rather than a positive entitlement to engage in political communication;

• Third is operates vertically against the state rather than horizontally against other individuals.

These features of the freedom of political communication have the following consequences:

• First, the freedom of political communication covers only communications relevant to the operation of representative and responsible government at the Commonwealth level (though that category may be very wide);

• Second, individuals cannot require that they be provided with the means or resources to engage in political communication or to make their communication effective; and

• Third, it does not apply ‘directly’ to the common law though, as the Court has explained, the common law must conform to the Constitution (which in effect ‘constitutionalises’ aspects of the common law).

In these respects, however, the freedom of political communication does not differ much from some other prominent instances of rights to freedom of expression which are understood as ‘individual rights’. Indeed, both the First Amendment to the Constitution of the United States and section 2 (b) of the Canadian Charter of Rights and Freedoms are negative and vertical in their operation and are at least partly ‘institutional’ in their rationale. (As is argued here, in the case of the First Amendment, its relationship to the common law is explained differently but with similar results).

Even more importantly, the freedom of political communication does allow individuals to claim that laws applying to them are invalid and that the grounds for that invalidity lies in the interference with the individual’s capacity to engage in political communication. It remains, therefore, entirely possible that an employee of the APS could challenge the Code of Conduct (and its underlying Act). Whether the challenge would be successful would depend on the merits of the claim, which brings us to the second claim above.

2. Public services employees and the Constitution before the courts

The second claim that none of the various Australian courts have held the Public Service Act or the Code of Conduct to fall foul of the doctrine is also correct on its face. It neglects to note, however, two cases relating to the implied freedom of political communication and public service employees decided in analogous contexts. In Bennett v President, Human Rights and Equal Opportunity Commission, Finn J upheld a challenge to a Regulation under the Public Service Act 1922 on the grounds that the Regulation:

… impedes quite unreasonably the possible flow of information to the community – information which, without possibly prejudicing the interests of the Commonwealth, could only serve to enlarge the public’s knowledge and understanding of the operation, practices and policies of executive government.

By contrast, in Chief of the Defence Force v Gaynor the Full Federal Court dismissed a challenge to an ADF policy, made pursuant to s9A(2) of the Defence Act 1903 (Cth), restricting members of the ADF posting material ‘offensive towards any group or person based on any personal traits, attributes, beliefs or practices that exploit, objectify or are derogatory of gender, ethnicity or religion.’ The determinative point in this case appeared to be the hierarchical discipline necessary for the organisation of the ADF. Thus, the restriction was justifiable as it is:

critical to the performance by the armed forces of all their various duties that there be a high level of confidence that officers (who also exercise command and control functions, and serve as leadership models within the ADF) are willing to perform, and capable of performing, the roles assigned to them

that included “their capacity to operate within the hierarchal structures of the ADF in ways that advance the cohesiveness of the armed forces”. The High Court refused special leave to appeal from the Full Federal Court’s decision.

These cases indicate that a particularised stance is adopted by Australian courts when adjudicating upon political communication cases in the context of public service employees. It is thus extremely difficult to articulate any hard and fast standard the High Court is likely to adopt in future when considering the constitutionality of a restriction on public servants’ freedom of political communication. However, because no successful challenge has so far been brought does not mean that one could not be brought in the future. There is certainly nothing in the nature of the freedom of political communication or in the decided case law that necessarily precludes such a challenge.

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Gary Hansell is a Research Fellow with the Laureate Fellowship Program in Comparative Constitutional Law. Adrienne Stone is Redmond Barry Distinguished Professor and Director of the Centre for Comparative Constitutional Studies at Melbourne Law School.

Suggested citation:  Gary Hansell and Adrienne Stone  'Public Servants, Social Media and the Constitution' on AUSPUBLAW  (5 September 2017) <https://auspublaw.org/blog/2017/09/public-servants-social-media-and-the-constitution/>