Does the Public Service Act 1999 Cth fetter the implied constitutional right of Australians to be free to express political opinion in a democracy on Twitter or other media? If so, does this create a class of persons (public servants) who are alone as a class of persons prohibited from expressing political opinion? Does the Public Service act (or executive action in its implementation) need to be reasonable, adapted and to a legitimate end in order to avoid creating such a class of persons. How relevant, whether more or less, in an election year?

Yes they should be free to speak, but they should have to state they are public servants.

Then at least then we would know they were they had no idea on anything, & could ignore anything they said.

LaLegale, yes public servants are limited in their ability to express a political opinion, as are members of the defence force, judges and the Governor General. This limits their ability to participate in public debate of issues, but does not prevent it completely. I spent two years as a public servant while President of the Australian Computer Society. I was able to manage this conflict of interest. The press and MPs understood this and even when I was giving evidence to parliamentary committees (for ACS) there were no problems. It did get a little silly when I helped write a question in Parliament to all Ministers in my ACS capacity, then had to write the answer for the Minister for Defence in my public services capacity. When I declared my conflict to my boss at Defence he said: "Well if you wrote the question, you are the perfect person to answer it".

I now teach IT students about professional ethics: http://www.tomw.net.au/technology/it/professional_ethics/

LaLegale,

I suspect you are mixing metaphors to make your case?

The issue is that it may be inappropriate or even against some institutional rules to make political statements whilst being seen as “representing” that institution.

Military personnel, whilst on duty or in uniform are rightly restricted in what they can say publicly, but not in the pub.

The same basic ground rules would be expected of Beurocrats and public officials. The views they have can be expressed privately but not in a way that is used as an endorsement by their “position of authority”.

Given that attitude often drives behavior we have seen those in public office sometimes doing both. The contentious issues are not the loss of rights by anyone, just restrictions imposed on the position they hold.

Only those wishing to bend the rules would have a problem with this

Dear Tom, I'm sure that I am mixing more than metaphors with all the bees buzzing in my head!

Just two questions: If military men can express their political opinion in the pub after work, is that not the same as a public servant expressing her political opinion on Twitter after work? If a military man can express his political opinion in the pub after work dressed in civvies, no one knowing that he is a military man, can a public servant use a pseudonym on Twitter without needing to declare herself as a public servant?

Dear LaLegale (or should that be LeLegale?)

I think you have now mixed me (spindoc) up with tomw?

You have yet to post a link to the specific Public Service Act 1999 in order for us to verify that what you assert as a “restriction” on public servants and twitter is true.

Having checked the government web site there are lots of Public Service Acts, I can’t find anything specific to your assertion. Please provide reference links otherwise we will put you down a vexatious poster.

Links please.

Dear Spindoc

I apologise for the confusion.

You will find the Public Service Act 1999 at the following link. http://www.comlaw.gov.au/Details/C2012C00319 See section 10 (which has only recently been revised) and section 13 for the relevant sections on Code of Conduct. See Australian public Service Commission Guidelines which have only recently been published, on ‘participating on line’ at the following link:
http://www.apsc.gov.au/publications-and-media/current-circulars-and-advices/2012/circular-20121

While the guidelines and the legislation appear benign, the problem arises where an administrator reads down the guidelines in a very narrow way, without taking the implied constitutional freedom as a relevant consideration, and imposes sanctions on the employee without legal authority, even though on its face the decision seems legal as it appears to conform with the guidelines. For example, I am alleged to have brought the department into disrepute, but there is no evidence that the department has been brought into disrepute by my Twitter comments. Further more, if the department has been brought into disrepute by any comments that I may make on Twitter, then it is prima facie reason for the criticism to have been made in the first place on account of my responsibility to the public because public servants have a duty to the public to inform of any maladministration. While there are provisions for ‘whistleblowers’ even in the Public Service Act 1999, the agency may not necessarily comply. See: http://www.comlaw.gov.au/Details/C2012C00319/Html/Text#_Toc320103387

It states: 16 Protection for whistleblowers

A person performing functions in or for an Agency must not victimise, or discriminate against, an APS employee because the APS employee has reported breaches (or alleged breaches) of the Code of Conduct ... In my case, as the court documents show, not only was I victimised, I was not protected from victimisation, instead I was investigated with termination of employment proposed.

It may help to remember that what is at stake here is whether it is a legitimate end for legislation to create a class of persons, public servants, who are precluded from expressing their political opinion in a democracy at all times, regardless whether that comment is critical or not.

LaLegale

Freedom of Speech is just that Freedom of Speech. Unless there is a clear cut case of National Security and the statements are the truth a Public Servant should not be gagged.
Under the terms of the Official Secrets Act and after having taken the Oath of Allegiance I was prohibited from making any statements to anyone, including my family, up until three years ago when the limitation expired. That was 25 years after my release from service. By the any secrets I had to tell were old hat.
The sentence available then was life with hard labor.

Good grief chrisgaff1000!

Anything I were to say would be superfluous. When discussing this question, it feels like I am trying to untangle a ball of wool that the cat's been playing with!

Do you have anymore thoughts on this that you would be happy to share?

LaLegale

many public servants have demonstrated more self interest than serving the public. Sickies, long weekends, overtime and self entitlement often dominate. No wonder so many of them vote for the Greens/Labour. I know their are also many hard working public servants. Unfortunately we also have the likes of the Climate Institute made up of spin doctors in white coates who are still pushing the gw dogma in order to protect their own jobs. Thankfully only a couple of weeks to go.

Hi LaLegale,

Forgive me for being persistent on the issues of what precisely is the problem.

I’ve checked your links and still can’t find any answers. What precisely is the problem?

Please point to the part (s) of the said Public Service Act 1999 that prohibits public comment under public service rules by public servants?

Looking forward to your directions

It all comes back to what it is that you feel you need the "Freedom of Speech" angle to function on. The truth speaks for itself and one should never be afraid of the truth. My personal problem was that we were the ones creating the "TRUTH" and were therefore subjective to the equation. I had a boss [Station Chief] who always said "Never Lie" except when and where the truth is concerned then Lie like a 'pig in s*-8"

This topic refers to this case: http://www.smh.com.au/national/public-servant-loses-fight-over-twitter-attack-on-government-20130812-2rsgn.html

While public servants are mindful of their obligations to serve the government of the day in an impartial way, there is no reason why commenting on policy on social media as an anonymous contributor should pose any problems. The fact this department took steps to investigate the owner of the Twitter account is surprising. Do departments investigate every Twitter account that tweets critical messages?

It falls back to the idea that the government wants to know it can trust it's public servants to carry out their policies and entrusts those same people with information. Fact is there is a growing trend to keep information secret when it need not be and a tendency to deny access to information. But I digress.

Simply put, I believe public servants should be able to express their views outside the workplace in a respectful and informed way, as the right of any other citizen.

Why would anyone conclude from this Twitter profile that Twitter userID '@LaLegale' was a public servant working in the Department of Immigration And Citizenship (DIAC)? Would anyone make such an identification just on the basis of her claimed Canberra domicile? See this TwitPic: http://t.co/vaWlF3vfKs

You wouldn't, would you?! So unless Twitter userID (and now also OLO userID) 'LaLegale' made reference in her tweets, or elsewhere on social media, to being a public servant, nobody in the general viewing public would know of either that employment relationship or her real-life identity. The only way, from her tweets alone, that she might be identified as a DIAC employee would be if she revealed something in tweeting that she could only have learned as an insider, and then only by others within DIAC!

So even if she had posted tweets critical of government policy or DIAC, there would be nothing that would indicate to the viewing public that hers was an inside, and perhaps therefore more authoritative, view as a public servant.

This is how and when I first learned of '@LaLegale' s being 'outed': http://twitpic.com/d9fc8m

'@FuriousFong' s observation in that Twitter conversation in relation to '@LaLegale', "That's terrible. You're hardly a trolling type. ..." coincided exactly with my reaction upon learning of the DIAC dismissal recommendation the subject of the legal action. Not the sort of tweeting I had seen over several years from '@LaLegale'.

Yet Markus Mannheim's news item reports a claim that:

"She regularly posted critical tweets about Australia's
immigration detention policies, the security company
that works at detention centres, and government and
opposition frontbenchers."

Normally, such a claim would be unable to be verified by the viewing public, due to the ephemeral viewability of tweets on Twitter users' timelines, but shortly Ms Banerji may be able to let the public judge for itself whether she ever posted critical tweets identifiable with a public servant at the time. Twitter now permits users to download their ENTIRE ARCHIVE of tweets ever published.

Might be interesting, especially if none are unduly harsh or critical of persons.

The judgment in Banerji vs Bowles, http://www.austlii.edu.au/au/cases/cth/FCCA/2013/1052.html , states in paragraph 50. that:

"The tweets in question (with dates, message and commentary)
are set out in Annexure B to the 21st December 2012 submissions."

I should expect that links to at least these tweets should be able to be posted as soon as LaLegale has obtained her tweet archive, whether here (as manual copy & paste links), on GrahamY's blog Ambit Gambit (which can make 'https' addresses live links), or elsewhere such as 'No Place for Sheep' blog where the tweets can be embedded and display as they would on Twitter.

In paragraph 45 of the judgment reference is made to a claim by Ms Banerji that her social media account (Twitter) had been the subject of covert surveillance without her knowledge at the time (April and May 2011). May 2011 was the time around which Ombudsman Allan Asher had engaged in an email correspondence with Senator Hanson-Young in relation to scripted questions for a Senate estimates hearing that would in due course be attended by both.

Bearing in mind that Ms Banerji's Twitter account evidently had been the subject of DIAC surveillance in May 2011, it is not unreasonable to have expected such intra-departmental surveillance to have been ongoing to some extent.

This is a link to a post of mine on 'Ambit Gambit' to one of Ronda Jambe's (who shares the blog with GrahamY) blog items: http://www.ambitgambit.com/2013/01/27/hey-nova-what-happened-to-your-kneebone/comment-page-1/#comment-38462

If you go there, and then click on the link contained within my post there, you will be able to see a Twitter conversation that DIAC surveillance would also have been able to see in November 2011. The links within the tweets will be live if you continue to surf for the full picture, even if you are not on Twitter.

I have no idea whether LaLegale was able to implement what was discussed, which was perfectly legitimate public interest activism. I didn't even know she was a public servant in DIAC.

What's the betting she was judged on it anyway?

From where I sit the issue of a class-based exclusion is an important one but there are others, including a reasonable expectation that an employee will be loyal in word and deed, or have the personal moral courage to quit.

From the American Elbert Hubbard

"If you work for a man, in heaven's name work for him.

If he pays you wages that supply you your bread and butter, work for him -- speak well of him, think well of him, stand by him and stand by the institution he represents.

I think if I worked for a man, I would work for him. I would not work for him a part of the time, and the rest of the time work against him. I would give an undivided service or none. If put to the pinch, an ounce of loyalty is worth a pound of cleverness.

If you must vilify, condemn and eternally disparage, why, resign your position, and then when you are outside, damn to your heart's content. But I pray you, as long as you are a part of an institution, do not condemn it. Not that you will injure the institution -- not that -- but when you disparage a concern of which you are a part, you disparage yourself.

More than that, you are loosening the tendrils that hold you to the institution, and the first high wind that happens along, you will be uprooted and blown away in the blizzard's track -- and probably you will never know why - - - Get Out or Get in Line"

If you don't like the policies you should work internally to effect change and if you can't and you feel it is important, leave and campaign against them.

It might be different if you were to comment without knowing policy and were prepared to retract or correct or indeed defend your comment when properly informed. Was that the case?

I wonder if people are truly aware of the personal and business secrets held by a government that is constantly mining for more and more private information, yet regularly demonstrates that the provisions of the Privacy Act were (consumer) hopes, not rigid rules to be followed.

If only government protected our personal and business information with the zest and determination with which it is collected. Information gathered is not used exclusively for the purpose for which it was gathered and worse, is released by mistake, 'Whoops, sorry, but we will continue to gather it anyway!'.

Originally the public was also led to believe that it was only permanent public servants with a lot to lose who might handle their information. But alas that became casual workers, contractors and their subbies. Of course they will all maintain your privacy, yeah right!

While I agree with some of the sentiments of those who wish for public servants to comment on internal matters (that is what some look forward to isn't it and upholding the 'rights' of public servants is just a convenient blind?), government has a long way to go before it can assure the public that information already held is as secure as it once was.

No-one has mentioned security classifications, or the openness of many of the public systems to deliberate release of confidential information (and fraud).

Dear Antiseptic

You say "If he pays you wages that supply you your bread and butter, work for him -- speak well of him, think well of him, stand by him and stand by the institution he represents", and I would agree with you completely in a situation of private business. However, life is rather different for public servants, for they have a loyalty to the public. For example, it was reported on ABC this evening that 50 percent of public servants do not approve of the PNG offshore arrangements. That is an interesting number, and surprising too. So why am I, who has a conscientious objection to offshore processing as being contrary to our international law obligations, the only person who has the courage to say so - and have people baying for my blood. Is it not more damaging to our democracy to have 50 percent of public servants who disapprove of PNG processing yet keep silent. To paraphrase Professor Sarah Joseph who wrote on this topic in the Conversation on 12 August, we may simply end up with a situation where the only public servants we have in this country are those who are too afraid to speak. Is that "a legitimate" end?

The important thing to remember about our democracy is that it is representative. Another important thing to think about is that Government employees are public SERVANTS (who are also members of the public). As well, the APS is only about 15% of the voting population.

A servant does as directed. If the servant is employed to advise, then she offers the best possible advice she can, making every effort to ensure the advice is as complete and as well-informed as possible. It may not be unbiased, because we all have some cognitive bias, but if there are several advisors it should be reasonably sure that the biases will average to zero, making one important assumption, which is that the pool of advisors contains a high level of diversity of experience and background and that they are all equally equipped and motivated to explore the problem fully. If they all come from one school of thought or one ideological idiom, or some are trying to give the answers that they think are wanted then the biases will not average to zero and the summed advice will be flawed and produce skewed understanding of problems within Government, causing bad policy and legislation. That's without even considering the capacity of some politicians to screw up even the best advice or ignore it if they don't like it.

Conversely, if the population of APS employees has views that are representative of the public at large, then there is no public benefit in their expression of those views. If they are not representative, then there may be a question about whether their advice will produce policy in the broad public interest and then we need to think about how to address that problem.

I think we've had exactly that situation evolve within the APS and government departments generally, so that the public find themselves constantly struggling to comply with laws and regulations that they know don't make sense and political parties try to sell themselves with tiny cosmetic policy differences all based on the same biased advice because there's no other choice, which just add to the madness. Professional advisors use standard models and tools; focus groups, narrow sociometrics because that's what's safe, easy and repeatable and is easy to pad out with weasel words. They have an underlying reductionist conception of analysis which focusses on one or two parts of complex problems. As a result, a policy to fix one set of problems leads to a bigger set of problems somewhere else in the system, because there are no isolated problems, but they proudly point to their policy as a success because the narrow set of metrics it was designed around have moved to the targetted range. Bonuses all round, promotion track greased and everybody's happy except the people outside tripping over the mounds of new red tape and trying not to fall foul of the crowds of enforcers that every new policy requires.

"Independent" reports by exterenal advisors like Goldman Sachs and their ilk are no better, because they hire people with an APS background and affiliations to write them.

To be honest, I reckon public servants have far too much to say, not too little. The sense of entitlement to ram ill-considered views down people's throats using emotional manipulation and an assumed authority is palpable.