A recent timely 4 November article in the ‘Canberra Times’ by John Wilson and Kieran Pender, “If public servants are made ‘silent members of society’ , democracy is worse for it”, highlights growing problems in interpreting and administering the protocols governing public political comment by Australian public servants.
The High Court ‘s final rejection in 2019 of Michaela Banerji’s appeal for compensation relating to her dismissal from the Australian Public Service for repeatedly posting under a pseudonym her dissenting political views on immigration matters, (Banerji 2019) , provided opportunity for useful detailed elucidation by Justice James Edelman as a member of that High Court of the Court’s thinking on the whole question of the need for public service neutrality.
The matter is relevant again now five years later because of public servants’ signatures increasingly appearing in open group letters on contentious political matters such as Israel-Gaza. Australia’s most senior public servants confront new challenges in administering the current apparently contradictory protocols governing public political statements by public servants.
For some 70 years since Federation, Australia operated under the classical blanket prohibition of any political comment by public servants . In Australia’s great national debates over conscription, Australia’s racially tainted immigration policy , free trade versus protection, or our participation in the Vietnam war, public servants were carefully silent in their official roles – whatever their private views , many of which have subsequently come to light in memoirs and biographies. Effectively they lined up firmly with the policies of governments of the day.
How much longer can this practice of silence by officials, already under stress since the 1970s, continue under the unprecedentedly stressful present situation, where Australian governments are routinely ignoring Australia’s obligations under international humanitarian law instruments for which their predecessors have signed up? Namely, respect for ICJ and ICC Conventions , and for recent ICJ and ICC decisions and UNGA resolutions pertaining to the alleged genocide in Gaza ; and respect for statements in the matter by the UN Secretary-General and by the UN Special Representative for Human Rights , Francesca Albanese .
Our present government is arguably serially flouting its obligations to respect international humanitarian laws pertaining to war crimes and genocide.
Justice Edelman in paragraph 172 of the Banerji 2019 decision expertly set out how the modern climate of public opinion demanding ethically based values in the Australian Public Service, including the values of diversity and free speech, must be balanced against the traditional requirement for “an apolitical public service, performing its functions in an impartial and professional manner” . He noted that a recommendation of the 1976 Royal Commission on Australian Government Administration stipulated that “ except as expressly provided by an Act or regulation, a government employee should be free to exercise the civil and political rights, liberties and privileges generally enjoyed by citizens”.
Edelman and others have also noted elsewhere the huge numerical growth of the public service sector, the near-universality of social media participation, and the growing diversity in the Australian community and in public opinion. He noted in paragraph 164 of the Decision :
“For much of the century since Federation, any public expression of political opinion by a Commonwealth public servant could be grounds for termination of employment. However, the absolute ban on public political communication by public servants has been tempered. When considered in light of its history and context, the Code that now regulates their behaviour no longer turns public servants into lonely ghosts. But, properly interpreted, it still casts a powerful chill over political communication. In the United States, where “citizens do not surrender their First Amendment rights by accepting public employment”, legislative restrictions of the nature adopted historically in Australia would be struck down as unconstitutional in a heartbeat. But, unlike the United States, in Australia the boundaries of freedom of speech are generally the province of parliament; the judiciary can constrain the choices of a parliament only at the outer margins for reasons of systemic protection.”
Justice Edelman noted in his next paragraph 165 that the Banerji case illustrated the need for great latitude in the assessment of whether the implied freedom of political communication by public servants contravened the need to implement legislation that gives effect to government policy.
He suggested in a key paragraph 182 that there is now a boundary, albeit ill-defined, between acceptable and unacceptable public expression of political opinions by a public servant . Taking into account that a public servant is intended to be able to take part in their political community, that boundary will only be crossed when comments :
“ sufficiently imperil the trust between on the one hand the APS and on the other, Parliament, the executive government , or the public. An assessment of when that trust will be sufficiently imperilled will depend upon all the circumstances .”
In para 183 Edelman lists six factors of particular significance to any assessment of whether this trust is sufficiently imperilled :
“ Although all circumstances are relevant, there are six factors of particular significance to any assessment of whether the relevant trust is sufficiently imperilled: (i) the seniority of the public servant within the APS; (ii) whether the comment concerns matters for which the person has direct duties or responsibilities, and how the comment might impact upon those duties or responsibilities; (iii) the location of the content of the communication upon a spectrum that ranges from vitriolic criticism to objective and informative policy discussion; (iv) whether the public servant intended, or could reasonably have foreseen, that the communication would be disseminated broadly; (v) whether the public servant intended, or could reasonably have foreseen, that the communication would be associated with the APS; and (vi) if so, what the public servant expected, or could reasonably have expected, an ordinary member of the public to conclude about the effect of the comment upon the public servant’s duties or responsibilities.”
It would seem that under present Australian administrative practice , the balance may be leaning back towards the traditional values of public service impartiality, to the detriment of other more contemporary values that have been in place at least aspirationally since the 1976 Royal Commission called for loosening the rules in 1976.
This poses tricky new problems for the Australia we live in today. First, we now have a very numerous public service making up a significant part of Australia’s workforce. It includes citizens from many ethnic and cultural backgrounds, including of Middle Eastern and Islamic origin . Many Australian citizens are deeply personally affected and outraged, or more widely in the general Australian community are outraged on ethical grounds , by Israel’s present cruel and genocidal practices in Gaza , West Bank and Lebanon.
Most of these citizens are not in an economic position to resign and end their public service careers on principle. Are these public servant citizens to be condemned to be silent members of society ? Where does this leave Australian values of ethical conduct, diversity and free speech ? And of respecting our international treaty obligations ?
I am not an expert in public administration law nor am I even a lawyer. But as a political commentator I am free to observe that the interpretation of the Banerji 2019 High Court decision, as it was expertly parsed by Justice Edelman , seems currently to favour those groups who would like to see Australia ignore or suppress its obligations to respect the dramatic development of international legal opinion and practice condemning Israel’s ongoing genocidal actions, notwithstanding the growing weight and urgency of Australian public opinion on these matters.
To put it bluntly, I see the tide of history now as running against those who would favour a return to a traditional pre-1976 view requiring Australian public service silence on such vital but divisive matters. Australia has moved on ethically and demographically since 1976 , but most of our government and media elites have not.
I wait in hope for a test case mounted by a senior public servant to test the practical boundaries of Justice Edelman ‘s guide to practice. Given the mounting multi-source reports of atrocities by the State of Israel against Gazan, Palestinian and Lebanese civilians , given the Australian community’s engagement in support of these hapless victims , and given the Australian government’s continued ignoble silence and practical facilitation of Israel’s appalling behaviour , such a test case by a courageous senior public servant surely cannot be long in coming?
Tony Kevin is a former Australian ambassador to Poland and Cambodia, and a member of the Emeritus Faculty at Australian National University. The author of Return to Moscow (2017), he has independently visited Russia six times since 2016. He has delivered lectures and taken part in academic conferences in the Moscow Diplomatic Academy and in Saint Petersburg on the outlook for Russia-Australia relations.
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