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Want to make a political comment? How risky is it really?

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”.

Read more: http://www.theage.com.au/national/public-servant-loses-fight-over-twitter-attack-on-government-20130812-2rsgn.html#ixzz2c1PrbQZi

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.

http://www.un.org/en/documents/udhr/index.shtml

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.

http://www.un.org/en/documents/udhr/history.shtml

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.

http://www.crikey.com.au/2010/09/27/the-whys-and-wherefores-of-bureaucratic-blogging/

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.

http://www.apsc.gov.au/publications-and-media/current-publications/aps-values-and-code-of-conduct-in-practice/aps-employees-as-citizens

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.

http://www.apsc.gov.au/publications-and-media/current-publications/aps-values-and-code-of-conduct-in-practice/managing-official-information

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.

http://www.independentaustralia.net/2013/art/literature/love-versus-goliath-by-robyn-oyeniyi/

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.

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21 comments on “Want to make a political comment? How risky is it really?

  1. […] the case of Michaela Banerji? Michaela has an on-going battle over her anonymous use of social media. It seems the aim is that […]

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  2. […] between freedom of communication on governmental and political matters (a case I am sure Michaela Banerji is pleased to hear about) and ethnic vilification. Of course, vilification does contravene […]

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  3. […] Want to make a political comment? How risky is it really? (teamoyeniyi.com) […]

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  4. 1. Aussies think we they have freedom of speech, but it is only when need it and try and use it do they learn that we don’t. Follow the links:
    http://yro.slashdot.org/story/13/08/13/1240225/aussie-public-servant-criticises-govt-on-twitter-gets-sacked
    2. How did this happen? http://netk.net.au/Whitton/OCLS.pdf
    It’s a terrible situation the public need to be told about. See 1.

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  5. […] I’m not even going to address how we tie ourselves in legal knots, such as the Zimmerman case or when trying to silence dissenters. […]

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  6. You are correct, Robyn, to say this is up my alley. In fact it’s so far up my alley I feel obliged to begin with a declaration of interests. Firstly, I am an ex-public servant, nine months with the ATO when I first came to Australia and five years with the Dept. of Social Security (as was) in the 90s. Furthermore during my time with DSS I was an official of the Community and Public Sector Union (CPSU), holding positions including Chair of the Victorian DSS Delegates’ Committee, member of the CPSU Vic. Branch Executive and CPSU National Council. I was also Convener of an opposition group within the union (CPSU Campaign).

    The upshot of all that is that, in my capacity as a union official it was a major part of my job to take and expound positions contrary to government policy, on all sorts of subjects from the obvious, like pay and conditions, to budgetary allocations, staffing levels, policies applying to the public such as work test requirements, even immigration policy and the apology to the stolen generations (yes, the union had a policy on that right through the Howard years). Wearing my opposition CPSU Campaign hat, I often found myself opposing govt. policy even when the union officially supported it (which happened a bit in the Keating years).

    I understood that I was obliged to be a bit careful as to which hat I was wearing at any given time, but beyond that I felt free as an individual to express whatever opinion I pleased. I’ve read those sections of the PS Code of Conduct of course, and I’ve exploited, I think, every single provision you’ve quoted. Without those freedoms I’m not sure how a union would operate. I would expect the CPSU to back Ms. Banerji to the hilt, because if this judgement stands it undermines, perhaps fatally, any union’s ability to function. It also, at first glance, appears to contradict the precedent of the full bench of the High Court when it ruled that the constitution did contain an implied right to freedom of speech.

    The only limits I know of on the freedom of speech of a public servant are that they not represent their personal views as those of their department or the govt. in general, and that they have to give up their employment if they get elected to parliament (MPs may not hold an ‘office of profit under the Commonwealth’). Ms. Banerji has done nothing wrong, her twitter account in no way suggests she represents the department, she can tweet anything she likes except hate speech. I have a friend who is a public service whistleblower, I’ve sent her the link, she’d have some interesting perspectives to add. You can go anonymous on here, can’t you? Anyway, strikes me I also know a former CPSU President (we started a dispute together back in the day) who is now an MP. If it might be useful to introduce the two….

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  7. The thing is the refugee convention is enshrined and they still ignore it.

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    • There is something called integrity we seem to be lacking somewhere…..

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    • You know, Marilyn, I have often criticised the USA for their rather (in my view) dodgy signing of the The International Convention on the Elimination of All Forms of Racial Discrimination but at least the were honest about what they would and would not change in their existing legislation!

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      • Someone needs to look into the foreign affairs power in the constitution. The Commonwealth has used it against the states in the past, most famously when Bob Hawke got The Franklin River a world heritage listing, then used the foreign affairs power to stop the Tasmanian govt. from damming it. My question is, can the High Court use the foreign affairs power to compel the federal govt. to comply with international treaty obligations? David Manne? Julian Burnside? Worth a test case maybe?

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      • Good question. I’m happy to be the test case if that helps anyone! 🙂

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      • You might have to ask Julian and David directly. Not sure either of them read my work, very busy men!

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      • Unfortunately I don’t have a hotline to them either. But it’s got me thinking. All power in Australia is devolved from the Crown, via the Governor General. It’s generally accepted that the GG acts only on the advice of her ministers, but a precedent was set by Kerr consulting the Chief Justice of the High Court on the constitutional legality of dismissing the Whitlam government. Could it not be argued that the GG might take advice from the CJ of the HC on the constitutionality of the executive breaching international treaty or convention obligations? And if that advice were to be that it WAS unconstitutional, might the GG not use the foreign affairs power to overrule the govt. of the day, or at least to refuse to give Royal Assent to any new legislation that fell into this category? Just a thought.

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      • Very good thought. I’m not enough of a legal brain (no legal cells at all really) but this is going to depend if there is anything in the constitution re international treaties etc in the first place. Constitutions seem to be rather inwards looking, generally speaking.

        The dismissal of Whitlam was an Australian issue entirely – an internal matter.

        The problem here is we need new legislation – we need legislation that brings the provisions of the UDHR into our domestic legislation.

        GG may possibly be able to rule as unconstitutional any “fettering” (undoing of “unfettered” – did I make up a new word?) of any citizen’s right to express a political opinion.

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