: Don’t tweet, bleat or pull faces

Don’t tweet, bleat or pull faces

Bruce Baer Arnold

Does employment as an official of the ACT government deprive those citizens of their constitutionally implied freedom of political communication? It is a freedom that is more important than ever, with controversy about gagging of doctors who have concerns regarding refugees in offshore detention centres, the erosion of Freedom of Information law (damned by Commonwealth Public Service Commissioner John Lloyd as ‘pernicious’), and recurrent claims of mismanagement or even corruption in the Territory and state governments.

The ACT Legislative Assembly’s Standing Committee on Justice and Community Safety (Legislative Scrutiny) has accordingly offered cogent criticisms of the Public Sector Management Amendment Bill 2016 (ACT). The Bill has been defended as appropriate and consistent with Commonwealth practice. It has been signed off by the ACT Attorney-General as consistent with the Human Rights Act 2004 (ACT), a reminder of the weakness of the Territory’s human rights regime. The Standing Committee disagrees, commending formal establishment of an ACT senior executive service but construing the proposed changes as an undue restriction on human rights, particularly a restriction ‘dealt with in a cursory way’ and requiring ‘deeper analysis’.

Section 9(2)(a) of the Bill deliberately includes actions (including speech) by an ACT public servant outside of official duties, noting public servants ‘must not engage in conduct that causes damage to the reputation of the service or the Executive’. The Bill’s Explanatory Statement comments: 

The need to retain public confidence in the public service outweighs any impingement on an individual’s right to privacy, freedom of expression or participation in democratic processes.

Unsurprisingly the Committee expresses concern that the restriction derogates the right to freedom of expression (HRA s 16(2)) and participating in public affairs (HRA s 17), without adequate justification. Neither the Attorney-General’s sign-off or the Explanatory Statement engage with the broader implied freedom of political communication under the Commonwealth Constitution, a reference for construing whether 9(2)(a) of the Bill is a justifiable derogation of the HRA. McHugh J in Levy (Levy v Victoria [1997] HCA 31; 189 CLR 579) for example referred to 

a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution.

Discourse about public administration fosters both accountability and efficiency. The Committee notes that the restriction will embrace statements in any context and at any time or place that cause damage to the reputation of the ACT Public Service or Ministers, with ‘no limitation in terms of whether the information in question was or was not otherwise publicly available, or whether it ought to be or could be made so’ and no consideration of whether the communication reflected information gained in confidence. Because the communication would be characterised as misconduct, other officials would be required to alert senior officers if they become aware of tweets or other statements by peers: this is likely to lead to a pervasive chill of officials communicating pseudonymously or otherwise. 

The Committee, bearing in mind Banerji (Banerji v Bowles [2013] FCCA 1052) and Bennett (Bennett v President, Human Rights and Equal Opportunity Commission [2003] FCA 1433; 204 ALR 119), made the following comments:

The result of these provisions may be that public servants will be very wary of making any communication that could be plausibly construed as one that causes damage to the service or to the Executive. This result would directly affect their participation in discussion of matters that relate to the operation of responsible government, and thereby affect the effectiveness of the participation of others.

A more appropriate restriction under the Constitution and the HRA would expressly address specific ends, such as law enforcement, cabinet secrecy or privacy. As it stands the Bill is an exercise in executive overreach.

BRUCE BAER ARNOLD teaches law at the Australian National University.

(2016) 41(3) AltLJ 210
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