Australia’s free speech failure

Public servants in national debate

James Mortensen

Government and governance, Law | Australia

16 August 2019

Following the High Court’s decision to allow a public servant’s dismissal over tweets criticising the country’s asylum seeker policy, Australia must reconsider the true roles and responsibilities of its public servants, as well as how this is reflected in the country’s constitution, James Mortensen writes.

On Wednesday last week, the High Court of Australia found the government’s decision to dismiss a public servant to be lawful. Formerly an employee of the Department of Home Affairs, Michaela Banerji was fired for anonymously tweeting her displeasure at the government’s asylum seeker policies.

Regardless of one’s views on tweets, the government, or asylum seekers, the fact that such a decision was in line with the constitution draws into question the suitability of Australia’s implied – rather than explicit – right to free political expression.

The government supported this decision on the grounds of protecting the sanctity of political independence. The attorney general was supportive of the ruling, saying that it supported the ‘status quo’ by maintaining the perception of partisan independence of government departments.

Minister of Home Affairs Peter Dutton also voiced support for the ruling, suggesting that public servants speaking on political matters were ‘sneaky’, while Senator James Paterson suggested that public servants should be free to speak only about issues unrelated to their departments.

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The court, however, was less concerned with employee-employer relationships. Its focus was whether the constitution’s implied provision of free political expression applied to public servants. Their findings were clear: it did not.

According to their judgement, unless a law impacted the sum total of Australia’s political expression, it would not breach the constitution. Forget tweets, public servants, and unfair dismissals – this ruling should be a source of great concern to the entire nation.

This raises a number of basic questions. How do we measure a ‘material, unjustified’ effect on political communication – especially given that specific, targeted laws are permissible? If constitutional protections can only be applied to grand, sweeping revisions and restrictions, can free political speech simply die a death of a thousand cuts?

Further, it might be reasonably questioned to what degree the silencing of public servants can be seen as a limitation on individual freedom. There are around two million public servants in the country, making this ‘individual’ limitation quite widespread by essentially making 16 per cent of the nation publically apolitical. At this rate it won’t take a thousand cuts to kill free political speech – just six or so will do.

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There’s a big issue lurking behind these smaller questions. Not only is public speech the mainstay of a liberal polity, but the manner and degree to which public servants could – and should – speak on political matters are at the heart of the Enlightenment and its ideas.

In his essay ‘What is Enlightenment’ – the eponymous text that defines modern liberal political and philosophical traditions – Kant is explicit and emphatic that a civil servant has the “freedom to make public use of one’s reason in all matters”. As long as they first use their ‘private’ reason to fulfil their duty to society according to the terms of their civil service, public servants should be free to do so.

Kant’s distinction between public and private reason and the effects of each on a liberal polity are important and instructive to society today.

‘Public reason’ is straightforward: the ability of an individual to present their thoughts and opinions in a public forum. In comparison, ‘private reason’ is then the use of their own rationale in their role as a public servant.

The philosopher acknowledges that this freedom of public reason is not absolute, and he provides clear examples of its limitations.

In one such example, a civil servant disagrees with the ‘appropriateness and utility’ of their orders. It would be wrong for that person to ignore those orders for the sake of their public reason – they are a necessary part of the community’s will, and as a civil servant must serve that will.

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However, it would also be wrong for that same person to be prevented from later submitting their views to the public. This is not simply because the person has the right to free speech, but because they have a responsibility to the public they serve. They have the duty to furnish people with insight and information to aid the community in making decisions over their own governance.

Unlike our modern government, Kant saw the political involvement of public servants as a way to inspire public confidence – not harm it. His view was not a naïve theory formed in some apolitical, pre-digital, or romantic yesteryear; it was the product of a complex, contested political society.

The freedom he envisaged was not the right to speak in polite conversation over dinner, but of essays, publications, and public addresses. This was the examination of laws, of military orders, of religious issues, and of constitutions themselves.

These concerns were not simply ethical either – they were practical. Without public reason, the institutions that serve the community cannot improve and grow. The Australian people are both the subjects of its government and the stakeholders, and as such, they must be well informed to guide their expectations of that government.

Public servants are a large portion of those stakeholders, as well as being well placed to comment on the efficiency, efficacy, and import of the decisions governments make. Limiting their speech not only limits the political lives of two million individuals but also despoils an asset crucial in improving social institutions.

Perhaps Kant himself put it best: to treat civil servants as if they are politically naïve is to treat them as ‘minors’. To limit their public reason is to make them either think or act like children or to consider them “an absurdity which would result in perpetrating absurdities.”

Societies need to grow, and for liberal societies to grow, they need healthy debate and common reason. If Australia’s constitution does not reflect this reality, its people must make an effort to exercise exactly the rights and responsibilities that it only implies it protects

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One Response

  1. Mark Fletcher says:

    This blog post inaccurately states the law in Comcare v Banerji. Cursory understanding of the APS legislative framework shows that, far from blanket bans on political speech, public servants are given opportunities to be part of partisan policy work (such as the right of return to circumvent s 44 of the Constitution, and the entitlement to leave without pay to join a member of parliament’s staff).

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