A public servant who operated an anonymous Twitter account that was critical of Australian government policy has lost her high court case over her termination. The Court ruled that her conduct breached the Public Service Code of Conduct. It also denied her application for compensation.
Public Service, or Government Servants?
Let us first look at an example, which the ABC cites, of her Twitter activity. She tweeted the following in May of 2012
@ABCNews24 After the lies about 9/11 and Iraq, why would anyone give credence to ANYTHING said by those who have their own immoral agenda?
This is typical of the anonymous criticism of the government that came forth from her account. All she is doing here is questioning whether, after a government had provably lied, their claims about another issue should be taken seriously. Neither side of politics was mentioned, but for the record, the government of the time was Labor. This is the most tepid criticism you are likely to read, but apparently any criticism of the government is grounds for termination as a public servant.
Defence in Depths: Freedom of Political Communication
The public servant appealed her original termination to the Administrative Appeals Tribunal, which ruled that her ‘implied freedom of political communication’ rendered the firing illegitimate. This was a strange ruling, since, in our infinite wisdom, we never quite got round to the whole Bill of Rights thing. Hence the High Court’s ruling that no such freedom exists: because it does not. Suffice it to say, if you need to put the word ‘implied’ in front of a freedom, it is not real.
Implications of the Decision
Outside the Court, the public servant’s attorney said the following, again per the ABC
The implications don’t stop at the boundary of public servants. The implication is that for any employee-employer relationship, if the employee is critical of the employer’s position on some politically relevant social issue, they can be sacked…[Mr Anforth said today’s High Court decision effectively meant anything a public servant did had to be] “with loyalty to the government” and not critical of it.
Sounds very damning, but it also happens to be true. There are restrictions on what people can say on social media based on their job. A dear friend of mine is a mental health practitioner. If he were to make posts on social media disparaging his employer, or worse, advocating suicide to the depressed, he would hardly be long for his job. Such restrictions on speech (ignore the ethics of the suicide suggestion) come with the territory, and he knew that going in. He would have precisely no grounds to oppose any termination. This leads into a brief recap of the Folau mess and contract law, leading back to the issue at hand.
An Inconvenient Suggestion: Contract Law and the Folau Comparison
To briefly raise the ugly head of Folau again, his contract was torn up because he breached its terms. It really was as simple as that. As I suggested in another piece, contract law cares not a fig why you breached the terms of your contract, merely that you did so. It is for this reason that Folau’s religious persecution claim is such crap. A contract is a contract.
Why is this case any different? This woman presumably entered into a contract with the public service. This contract would have contained the equivalent of a ‘don’t be a dickhead’ clause which generally means to not blacken your employer’s name. Now, even if we agree with what she said (I do), her contract, like many others, prevents her from criticising her employer or blackening their name. Are we suggesting that there is a different standard when the employer is the government? What is it that is different about this case of contract law as opposed to the Folau case? Like Folau, this woman appealed to a non-existent legal freedom to justify breaking her contract (intentionally or otherwise)
Brief disclaimer: do I necessarily agree with the implications of the two previous paragraphs? No. But like Adam Smith in his Wealth of Nations, I merely observe the situation and report what I see.
Further Implications and a Slippery Slope
A little more from the attorney for the public servant
It [the decision] is basically saying that if you take the Queen’s shilling, you surrender your rights to participate in the political process
This idea of loss of political participation was even taken so far in one Facebook meme as to question whether public servants would be allowed to vote soon. This is clearly a slippery slope, as all public servants can vote like any other citizen, but you can see the basis for the question too. Voting against the incumbent government is criticism of their policies. The difference is that, while social media is public, the ballot is secret. Voting does not bring the public service (or the government they serve) into disrepute.
Silence and A Strawman: The Reaction
The silence of the right-wing free speech advocates who defend Bolt and the rest of the Bigot Brigade is deafening. Crickets. Where are you now, you bellicose belugas? Seems freedom of speech, like any other legal protection is, as is so typical for conservatives, for them and theirs, not you and yours. One wonders if their reaction would have been any different if the partisan makeup of the parliament were different, but I digress.
As for the strawman, Nadine Flood is the National Secretary of the Community and Public Sector Union (CPSU). She issue this statement in response to the decision
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
That example is not comparable to this case, and is a strawman of the facts, even of the government’s position on the issue. Contrary to the conservatives’ 10,000 men put forth in defence of ‘tradition’, marriage equality is the law of the land. So this claim is wrong on the facts. But even so, liking a facebook post is quite different from sending thousands of tweets, some of which contained the type of inside information that only a government employee could possess.
The true implications of this case will play out over time. But at the moment, based on what I have read, this is a case of contract law. She violated the terms and suffered as a result. As a case of black letter contract law, the Court is right on this – as much as I hate to say it.
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