Concern raised over APSC social media crackdown

The CPSU has raised strong objections following media reports about Government moves to impose severe restrictions on public sector workers' personal use of social media. 

“It’s completely unreasonable for a worker to face disciplinary ­action over a private email or something as benign as ‘liking’ a social media post,’’ union national secretary Nadine Flood said.

We made a detailed submission to the APSC on this issue late last year; you can read it here.

Read our Know Your Rights information here.

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Coalition warns public servants over social media attacks

Orginally published in The Australian

The Turnbull government will today seek to impose restrictions on public servants criticising the Coalition on social media, warning that employees risk disciplinary action for “liking” anti-government posts or privately emailing negative mat­erial to a friend from home.

Documents obtained by The Australian show public servants would also be warned they could be in breach of the public service code of conduct if they do not ­remove “nasty comments” about the government posted by others on the ­employee’s Facebook page.

Under the new policy, liking or sharing anti-government material on a social media platform will generally be taken as an endorsement and as though the public servant had created the material.

Even if a public servant shares a post they do not agree with, and puts an angry face emoji with the post, the employee could still be in breach if their opposition to the post is not made sufficiently clear.

Declaring the code operates “in effect” to limit an individual’s right to freedom of expression, the ­government also warned public ­servants against posting criticism anonymously or under a pseudonym.

Australian Public Service Commissioner John Lloyd said last night that “objectionable material was not miraculously sanitised” by a public servant posting anonymously or using a pseudonym.

“That argument is similar to a burglar arguing that charges should be dismissed because he wore a balaclava,’’ he said.

The Community and Public Sector Union last night accused the government of “overreach”.

“It’s completely unreasonable for a worker to face disciplinary ­action over a private email or something as benign as ‘liking’ a social media post,’’ union national secretary Nadine Flood said.

“Of course there needs to be limits but this policy goes too far. The notion that the mum of a gay son who happens to work in Centrelink can’t like a Facebook post on marriage equality without endangering her job is patently ­absurd.

“It is one thing to say that public servants working on a particular government policy shouldn’t be publicly criticising that policy, quite another to say they have no right to engage on social media on anything that could be a community issue.”

The policy, which applies across the federal public sector from today, says a public servant could be in breach of the code through material contained in a private email sent to a friend.

“There’s nothing to stop your friend taking a screenshot of that email, including your personal ­details, and sending it to other ­people or posting it all over the ­internet,’’ the policy says.

“Again, the breach of the code is not in their subsequent ­publication of your material, but in your emailing that material in the first place.”

The government suggests a public servant could be held ­responsible for “nasty comments” made on the employee’s social media pages by another person.

“Doing nothing about objectionable material that someone else has posted on your page can reasonably be seen in some circumstances as your endorsement of that material,’’ it says. “If someone does post material of this kind, it may be sensible to delete it or make it plain that you don’t agree with it or support it.

“Any breach of the code would not come from the person making the post. It would come from how you reacted to it.”

Even if social media pages were locked to a public servant’s friends, the employee would be in breach of the code if the anti-government material was reposted by a friend.

“The breach of the code occurs at the time you made your post,’’ the policy says. It says public comment “includes anything that you say in public or which ends up in public”.

“This can include something you’ve said or written to one person,’’ it says. “If your comment has an audience, or a recipient, it’s a public comment.”

In relation to posts made after hours, the government says a public servant’s capacity to affect the reputation of their agency and the public service “does not stop when you leave the office”. “The comments you make after hours can make people question your ability to be impartial, ­respectful and professional when you are at work,’’ the policy says. “APS employees are required by law to uphold the APS values at all times.”

The policy says the common law recognises an individual right to freedom of expression. “This right is subject to limitations such as those imposed by the Public Service Act,’’ it says. “In effect, the code of conduct operates to limit this right.”

Mr Lloyd said the government had “not sought to ban ­employees from making public comments, or to limit their access to social media”.

“Rather, the guidance sets out the risks public servants need to take into account when they consider what they say and how they say it,’’ he said

Mr Lloyd said public servants needed to think carefully about what they posted and take into ­account whether their comment criticises their agency or their minister, the prime minister or the shadow minister. “The principle that an ­employee should not publicly criticise their employer is a well-established one in both the private and public sectors,’’ he said.

“Public servants should not make comments that could make members of the community doubt either the capacity of the government to deliver services properly or the personal commitment of that employee to their work.

 

Comments

Have we got any good constitutional lawyers? I would like to see an assessment of this interpretation against the Australian constitution.

To insinuate that we are not capable of separating our political views and work is insulting. We are intelligent professional workers who can separate our politics and work at hand.

Can anyone answer this question. Are member of parliament, public servants? Are they subject to aps code also?

How would this affect someone sharing posts regarding the upcoming plebiscite?

Once again our rights have been taken, example is the government and the polies required to up hold the code of conduct as they are public servants?. Lying to the public should be a breach. If I wish to run for parliament at the next election and open a face book page to discuss my view, this could be a breach of conduct.

Pretty sure you have to resign before you can run for parliament.

If I work for DHS but make a comment or respond to a post on Facebook about the Government's lack of a Renewable Energy Target or other important issues to do with the environment that concern me, and I am critical of this, and am not flattering about the responsible Minister's performance in the arena of environment policy, am I in breach of this aspect of the Public Service code? This cannot be OK!! I am a private citizen and I work as a public servant. Surely my rights as a private individual to express my views on social media especially if I don't identify on that media as a public servant, cannot be extinguished by whoever employs me at the moment?

Note that Australia is not a democracy. A democracy is a state in which the citizens make the decisions and hold the power. A republic is a state in which the decisions and power are in the hands of elected representatives. Australia is a republic, and has been since 1901.

Regardless of the type of state, we should possess the fundamental liberties upon which Western civilisation is theoretically founded, such as free speech. Anyone who believes someone else should have the authority to dictate what they can and can't say is undeserving of any freedom, or any respect.

No they are not subject to the same rules as us. they have different rule under Parliament something

So, it's ok for Mr Lloyd to point out something as vague and unlikely as, “Doing nothing about objectionable material that someone else has posted on your page can reasonably be seen in some circumstances as your endorsement of that material,’’, yet, when we have fought tooth and nail to stop our conditions going into a policy which the agency can easily change at a moment's notice, we are being unreasonable?

Nothing like being two-faced there. Who would "reasonably" draw that kind of conclusion from a post that has not been touched, which has obviously been posted by someone else? That's like saying that if we do nothing about graffiti on a wall, then we condone that kind of action. Ridiculous!

Hi Chris.
MPs are not subject to the APS Code of Conduct.

Thanks for all the comments. We know this issue matters to CPSU members, which is why we've now emailed affected members an updated guide on social media use.

We have very good CPSU lawyers on the case - with real expertise in the employment and APS law that is central to this issue. CPSU is well placed to defend members employment & political rights, & we will get external advice as required.

I put up a picture of myself with other CPSU members celebrating voting down a bad EA in 2011. I hope that doesn't come back to bite me on the bum.

The whole "reasonable" and "a reasonable person would..." ideas is nonsense.

1) Humans are not reasonable. After countless generations we're still having wars, and we're still silly enough to trust politicians to run everything for us.

2) Look at institutionalised "reasonable": judges. Judges have the authority to interpret law to suit what they subjectively believe is the will or mood of the community. This results in pedophiles only going to prison for six months or so. This is government-approved, government-regulated "reasonable".

3) There is an assumption that if someone bans some ideas or word, that it's because "Any reasonable person would". I beg to differ. Anyone who would ban any idea or word is inherently unreasonable and should not enjoy the liberties and comforts of living in a supposedly free society.

Australia doesn't really follow its Constitution anyway. Consider, there's no such thing as a Prime Minister in the Constitution. There is absolutely no Constitutional basis for the Prime Minister to exist or have any authority.

I have some real concerns based on remarks contained within the APSC advice (source: http://www.apsc.gov.au/publications-and-media/current-publications/makin... )

From the FAQ:

What about my right to freedom of speech?

The common law recognises an individual right to freedom of expression. This right is subject to limitations such as those imposed by the Public Service Act. In effect, the Code of Conduct operates to limit this right.

also;

Can I breach the Code through material in a private email that I send to a friend?

Yes. There’s nothing to stop your friend taking a screenshot of that email, including your personal details, and sending it to other people or posting it all over the internet. Again, the breach of the Code is not in their subsequent publication of your material, but in your emailing that material in the first place.

In fact, there’s nothing to stop your friend from forwarding your email directly to your employer and reporting your behaviour (sic)

In short, my interpretation of the ASPC's remarks is that "the line" is now calibrated to zero; any comment whether publicly or privately risks violation of the Code of Conduct policy.

Are we then to be expected to be voiceless within the sphere of political discourse?

I am deeply concerned about the potential for a radical chilling effect to be imposed upon us. It hardly aligns with the principle of the "fair go" so long highly prized in our country.

MP's are NOT public servants are not bound by Public service act or APS code of conduct. They also have immunity when speaking in parliament.

I work as a Public Servant for 38 hours a week, however I do not define myself as Public Servant. I act with integrity in my life, I would do this regardless of whether I was a public servant or not. I will voice my opinion on matters that are of interest to me. The move to silence me and other people working as a public servants, is hands down WRONG. That doesn't give me Carte Blanche to viciously demean a person ie. Politician, celebrity and violently attach their position - that is something I would not do.

I am an adult. I am a public servant. I serve the public. I do my job to the best of my ability (and as best I can under ever-increasing restrictions), regardless of which government happens to be in power. In well over a decade in the APS, there have been several changes of government, more changes of minister, and none of these things have had any affect on my dedication to my job.
My views on anything in the political arena have zero impact on my work ethic, and to insinuate otherwise is incredibly offensive.

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