The last time I checked, Australia was a democracy. In fact, SO democratic are we that it is compulsory to vote if one is eligible. Is not voting an expression of political opinion?
I have long been aware there is no implicit or explicit right to free speech in Australia’s constitution however there has always, by custom and practice, been a right to express our political opinions in what we believe is this great free nation of ours. If you turn off that right, where do you draw the line?
Back in 2010 a public servant by the name of Greg Jericho was happily blogging under the name of Grog’s Gamut, expressing political opinions. His political opinions. While Greg subsequently left the employ of the APS, as far as I know he was not compelled to leave once his cover was blown.
More recently another public servant has been taken to task for expressing personal views anonymously. Michaela Banerji, an employee of the Department of Immigration and Citizenship (DIAC), has just lost a case in the Federal Circuit Court of Australia relating to her private expressions of concern.
Judge Neville found Australians had no ”unfettered implied right (or freedom) of political expression”.
I have the judgement to hand and have read it. You may do so too here, if you are legally minded.
The reason I stretched my poor IT brain around the rigors of trying to understand legalese was because I wanted to find where exactly in the judgement this ruling was applied to ALL Australians.
It is apparent that Ms Banerji’s case is not just about the freedom to express her political opinion. Ms Banerji’s employment contract terms and conditions and the interpersonal relationship with a superior, Sandi Logan, are just two complicating aspects of the case. Clearly I’m not about to attempt to redo Judge Neville’s work: I’m not a lawyer, let alone a judge!
There is something deeper here that worries me, however. You see, I’ve come across this issue of conflict between international covenants and conventions Australia has signed or become party too and our own domestic legislation before. The conflict in my case is analysed both elsewhere on this site and in my book. I battled the fact provisions of the International Covenant on Civil and Political Rights have not been enshrined in our domestic legislation, while in this case I am concerned about the Universal Declaration of Human Rights.
I accept that employers are within their rights to stipulate certain terms and conditions of employment, such as not work a second job without permission in case there is a conflict of interest. Many of us sign confidentiality agreements. Yet it is reasonably difficult legally to contract out of basic rights. Companies can’t contract out of basic warranty conditions if we want a non-people example. Of course, we do have basic industrial relations and basic warranty terms and conditions enshrined in legislation.
We do not seem, according to Judge Neville at least, have a right to freedom of political expression.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Is Australia not a party to this declaration? Oh, Australia is WAY more than a party to this declaration – Australia was one of the nine nations on the Drafting Committee. If you don’t believe me, click this link: http://www.un.org/en/documents/udhr/drafters.shtml
The history page goes on to say:
The first draft of the Declaration was proposed in September 1948 with over 50 Member States participating in the final drafting. By its resolution 217 A (III) of 10 December 1948, the General Assembly, meeting in Paris, adopted the Universal Declaration of Human Rights with eight nations abstaining from the vote but none dissenting.
But some SIXTY-FIVE years later we haven’t bothered to enshrine this right in our own domestic legislation? W. T. F? Right about now it is probably good I am not a public servant – or doesn’t that matter?
Interestingly, according to Bernard Keane, also an ex-public servant I notice, there is no restriction on public servants voicing their political opinions.
There seemed a widespread view that public servants forfeited their right to espouse any sorts of political views, despite guidelines like the APS Code of Conduct, and its predecessor documents, making it clear that they were perfectly entitled to express themselves like everyone else, if so inclined, provided they adhered to some basic rules around confidentiality, conflict of interest and professional behaviour.
Admittedly this was written back in 2010, but as far as I can tell, the APS Code of Conduct still allows that.
Participating in political activities
It is quite acceptable for APS employees to participate in political activities as part of normal community affairs.
APS employees may become members of or hold office in any political party.
APS employees, whether or not they are members of political parties, are expected to separate their personal views on policy issues from the performance of their official duties. This is an important part of professionalism and impartiality as an APS employee.
Where an APS employee is involved in publicly promoting party or other views on certain issues, and where their duties are directly concerned with advising on or directing the implementation or administration of government policy on those issues, there is potential for conflicts of interest.
If we delve even further, public comment is specifically addressed:
APS employees have the same right to freedom of expression as other members of the community, subject to legitimate public interests, such as the maintenance of an impartial and effective public service in which the community can have confidence.
The term ‘public comment’ is used broadly, and includes comment made on current affairs
- at public speaking engagements
- during radio or television interviews
- on the internet (including blogs, social networking sites and other online media that allow user participation and interaction)
- in letters to the press
- in books or notices
- in academic or professional journals
- in other forums where the comment is intended for, or may be accessed by, the community.
I’m wondering why Ms Banerji is in so much trouble as I can’t see how her tweets contravened anything I have read so far. Even if public servants were muzzled privately due to their employment, what about the rest of us? Judge Neville didn’t qualify his judgement as applying to only public servants, therefore it must apply to all of us, as reported by The Age. In that case, it would seem to me politicians themselves are not entitled to make comments that criticise either. That might make being in opposition rather tricky. I did send out some feelers asking if, technically, politicians are classified as public servants. I got conflicting responses, an interesting situation in itself! Whether politicians are technically public servants subject to the APS Code of Practice or not, clearly they are (even if they forget a lot of the time) servants of the public.
For a nation with no freedom of political expression, there seems to be a lot of it going on at the moment.
Politics is a strange animal in any organisation. People can be terminated for reasons totally unrelated to the real reason as anyone with any commercial experience knows. Politics doesn’t only exist in the world of politicians and public servants.
Having communicated with Sandi Logan myself and been called disingenuous by Sandi publically (on Twitter, no less) I have been on the receiving end of his disapproval (unjustified in my opinion) so I can envisage a interpersonal problem in the work place. I also recognise Sandi has an extremely difficult job and I have been assured by an acquaintance he is a really nice person. In my case, I think it would have been much more personable for him to email me directly and suggest I change the photo he was complaining about, rather than publically call my integrity into question.
Clearly, also, Ms Banerji felt very strongly about current government policy and this would naturally have set her on a collision course with others in the department, including Mr Logan. Not an ideal situation for anyone involved, I suggest.
Whatever the working relationship between Ms Banerji and Mr Logan is, or was, it doesn’t change the basic issue at hand, it merely clouds the whole situation and hides the true problem.
As Marilyn Shepherd said when she reviewed my book:
She soon discovered Australia’s dirty little secret.
Australia loves to ratify international human rights law and pat themselves on the back as good international citizens. They then throw the conventions in the bin and refuse to make them part of domestic law, as required at the time of ratification. They are not worth the paper they are printed on.
I think the time is long overdue that we made sure the declaration we helped draft was actually enshrined in our domestic legislation. Before we all have to shut up and be quiet, as The Drum highlights is possible.
Judge Warwick Neville ruled that found Australians had no ”unfettered implied right (or freedom) of political expression”. His High Court had found that citizens’ implied rights of political expression were limited.
Read more at http://www.thedrum.com/news/2013/08/13/court-ruling-restricts-unfettered-freedom-speech-social-media#WM8VyTXeabDidpo9.99
All sources are linked within the body of this article. Ms Banerji’s Twitter is @LaLegale if you wish to follow her.
- Court Rules Australian Public Servant Can Be Fired for Criticizing Government on Twitter (geekosystem.com)
- Aussie Public Servant Criticises Gov’t On Twitter, Gets Sacked (yro.slashdot.org)