In a landmark case on whether a public servant's use of social media can be a valid reason for terminating their employment, the High Court has unanimously upheld restrictions on a public servant's ability to make public comment where it may damage the integrity and good reputation of the public service.
In doing so, the Court has emphasised the importance of an apolitical and professional public service that will faithfully implement accepted government policy, irrespective of employees' personal political beliefs.
In Comcare v Michaela Banerji [2019] HCA 23 (7 August 2019), a now former Department of Immigration employee Ms Michaela Banerji had an anonymous twitter account where she was highly critical of Government and Opposition immigration policies, members of Parliament and the Department of Immigration. After an investigation uncovered her identity, she was dismissed from her role for inappropriately using social media in contravention of the Public Service Act 1999 (Cth) (PS Act), the Australian Public Service (APS) Code of Conduct and APS Values.
Ms Banerji argued that the PS Act and APS Code of Conduct imposed an unjustified burden on the implied freedom of political communication under the Constitution.
The Court unanimously rejected this argument, emphasising that the implied freedom of political communication is not a personal right to free speech. The Court held that the restrictions placed on political communication by public servants under the PS Act were consistent with the constitutionally prescribed system of representative and responsible government, namely the maintenance and protection an apolitical public service.
However, the Court emphasised that any action taken in response to a breach of the PS Act or APS Code of Conduct must be proportionate to the nature and gravity of the employee's misconduct. Depending on the circumstances, this may range from a simple reprimand to the termination of a person's employment. In responding to a potential breach, an employer must act reasonably, provide procedural fairness and take into account the personal circumstances of the employee.
A summary of the Court's decision can be found here.
VGSO's Workplace Relations and Occupational Safety Branch has significant expertise and experience in advising employers on potential breaches of the Code of Conduct for Victorian Public Sector Employees and Victorian Public Sector Values. We also run training programs for human resources professionals in the public sector, including on the use of social media in the workplace.
VGSO's Constitution and Advice Team also has significant experience and expertise in dealing with the intersection between the implied freedom of political communication and state laws, including decision-making under those laws.
If you work in the public sector and require further information please contact us:
Workplace Relations team
Frances Anderson
Assistant Victorian Government Solicitor
Ronan O'Donnell
Solicitor, Workplace Relations and Occupational Safety
Constitution and Advice team
Alison O'Brien
Assistant Victorian Government Solicitor
Jessica Cleaver
Managing Principal Solicitor, Constitution and Advice team
Maya Narayan
Principal Solicitor, Constitution and Advice team
This blog was prepared with the assistance of Margie Brown, Law Graduate.
Updates on legal developments by the Victorian Government Solicitor's Office
Showing posts with label Social Media. Show all posts
Showing posts with label Social Media. Show all posts
Friday, 9 August 2019
Tuesday, 8 November 2016
For their eyes only? When can an employer access and use information on an employee's Facebook page?
Supreme Court confirms public sector employer has privacy obligations with respect to personal information on an employee's Facebook page but may use that information where there's a legitimate reason to do so (such as reasonably conducting a legitimate employment misconduct investigation).
A recent decision of the Supreme Court of Victoria (Jurecek v Director, Transport Safety Victoria [2016] VSC 285) provides guidance about when a public sector employer may access an employee's social media publications without breaching privacy laws.
The proceeding was brought under the Information Privacy Act 2000 (the Act), but the Court's findings are relevant to the Privacy and Data Protection Act 2014 because the Information Privacy Principles (IPPs) under both Acts remain the same in all material respects.
The employer was made aware of the activity and initiated a disciplinary investigation. For the purposes of that investigation the employer accessed the employee's Facebook page, initially without her knowledge, and took screenshots of the content.
The employee was disciplined following findings of misconduct.
The employee lodged a complaint with the Privacy Commissioner, alleging that the employer had breached the IPPs by accessing her Facebook page. The Privacy Commissioner dismissed the complaint and the matter was referred to the Victorian Civil and Administrative Tribunal (VCAT). VCAT also dismissed the complaint and the employee appealed VCAT's decision to the Supreme Court.
The Court disagreed, taking the view that the mere publication of information on Facebook or the Internet does not necessarily make it a ‘generally available publication’.
Whether such information is a 'generally available publication' will depend on the facts and circumstances as a whole, the nature of the information, the prominence of the site, the likelihood of the access and the steps needed to access the site.
In this case, the Court found that the employee's Facebook posts were not 'generally available' and, because the posts expressed her opinion, they satisfied the definition of ‘personal information’ for the purposes of the Act. Accordingly, the IPPs applied and the Court needed to determine whether they had been breached.
The Court agreed that the employer could only access and collect the employee's personal information if it was necessary for the organisation's functions or activities. However, the Court found that the disciplinary investigation was a function of the employer’s organisation and that accessing the employee’s Facebook account for that purpose was legitimate and necessary and not unlawful, unfair or unnecessarily intrusive.
The employer delayed notifying the employee about its collection of her personal information. The employee claimed that this delay constituted a breach of the IPP notification obligations.
The Court rejected that claim. It held that the IPPs do not impose an obligation of immediate notification but rather an obligation to take such steps as early as practically possible. In this case, it was reasonable for the employer not to notify the employee earlier because it could have jeopardised the integrity of the disciplinary investigation.
As the Court noted, 'matters of fact and degree are involved' and it is necessary to balance, 'in a reasonably proportionate way', 'what is at stake for the individual' with the 'nature and importance of any legitimate purpose' and 'the extent of the interference'. This means that each situation needs to be considered on its merits.
To discuss workplace relations further contact:
Rosemary Robins
Solicitor
Workplace Relations & Occupational Safety
9032 3036
Jacqueline Parker
Assistant Victorian Government Solicitor,
Workplace Relations & Occupational Safety
A recent decision of the Supreme Court of Victoria (Jurecek v Director, Transport Safety Victoria [2016] VSC 285) provides guidance about when a public sector employer may access an employee's social media publications without breaching privacy laws.
The proceeding was brought under the Information Privacy Act 2000 (the Act), but the Court's findings are relevant to the Privacy and Data Protection Act 2014 because the Information Privacy Principles (IPPs) under both Acts remain the same in all material respects.
The Facts
The employee engaged in various Facebook activity, including posts and messages that were abusive and critical of her employer and other employees. The employee operated her Facebook page under a pseudonym with privacy settings, although these did not fully restrict access to the Facebook page.The employer was made aware of the activity and initiated a disciplinary investigation. For the purposes of that investigation the employer accessed the employee's Facebook page, initially without her knowledge, and took screenshots of the content.
The employee was disciplined following findings of misconduct.
The employee lodged a complaint with the Privacy Commissioner, alleging that the employer had breached the IPPs by accessing her Facebook page. The Privacy Commissioner dismissed the complaint and the matter was referred to the Victorian Civil and Administrative Tribunal (VCAT). VCAT also dismissed the complaint and the employee appealed VCAT's decision to the Supreme Court.
Social media posts may be 'personal information' for the IPPs
The employer contended that, because the employee’s Facebook posts were accessible by anyone, they possessed the character of a 'generally available publication' and were therefore exempt from the operation of the IPPs under the Act.The Court disagreed, taking the view that the mere publication of information on Facebook or the Internet does not necessarily make it a ‘generally available publication’.
Whether such information is a 'generally available publication' will depend on the facts and circumstances as a whole, the nature of the information, the prominence of the site, the likelihood of the access and the steps needed to access the site.
In this case, the Court found that the employee's Facebook posts were not 'generally available' and, because the posts expressed her opinion, they satisfied the definition of ‘personal information’ for the purposes of the Act. Accordingly, the IPPs applied and the Court needed to determine whether they had been breached.
Employers may access an employee's social media posts if reasonably necessary for an investigation
The employee claimed that the employer was not lawfully entitled to access and collect her personal information (ie her Facebook posts) because such collection was not 'necessary for one or more of the organisation's functions or activities'.The Court agreed that the employer could only access and collect the employee's personal information if it was necessary for the organisation's functions or activities. However, the Court found that the disciplinary investigation was a function of the employer’s organisation and that accessing the employee’s Facebook account for that purpose was legitimate and necessary and not unlawful, unfair or unnecessarily intrusive.
Employers need to inform employees when they collect personal information from social media, but not necessarily immediately
The employer delayed notifying the employee about its collection of her personal information. The employee claimed that this delay constituted a breach of the IPP notification obligations.
The Court rejected that claim. It held that the IPPs do not impose an obligation of immediate notification but rather an obligation to take such steps as early as practically possible. In this case, it was reasonable for the employer not to notify the employee earlier because it could have jeopardised the integrity of the disciplinary investigation.
Key implications
- Public sector employers may collect personal information from an employee’s social media page, but only when it is necessary for one or more of the organisation’s functions.
- If access to an employee's social media page is reasonably necessary for a disciplinary investigation, accessing that page and collecting relevant information is unlikely to breach the IPPs.
- If an employee's personal information is collected, employers must take steps to notify the employee as early as is reasonable in the circumstances. Employers do not need to notify an employee immediately if doing so would jeopardise a disciplinary investigation or other legitimate purpose.
As the Court noted, 'matters of fact and degree are involved' and it is necessary to balance, 'in a reasonably proportionate way', 'what is at stake for the individual' with the 'nature and importance of any legitimate purpose' and 'the extent of the interference'. This means that each situation needs to be considered on its merits.
To discuss workplace relations further contact:
Rosemary Robins
Solicitor
Workplace Relations & Occupational Safety
9032 3036
Jacqueline Parker
Assistant Victorian Government Solicitor,
Workplace Relations & Occupational Safety
9032 3011
Monday, 2 May 2016
Social media - when can you dismiss a public sector employee for inappropriate comments?
The Fair Work Commission has recently handed down a decision that sheds light on the circumstances in which a public sector employer can (and cannot) dismiss an employee for his or her comments on social media (Starr v Department of Human Services [2016] FWC 1460 (29 March 2016)).
While the decision is subject to appeal, the result at first instance shows that the path to dismissing an employee on the grounds of inappropriate social media comments is not always smooth.
The Facts
The Commonwealth Department of Human Services (DHS) terminated the employment of a Centrelink officer when it found that he had made a number of negative comments relating to his work on social media.Over a three year period, the employee had posted numerous adverse comments about Centrelink and its customers in online forums such as 'Whirlpool' and 'Sportal'.
Following a misconduct investigation, DHS found that the employee's negative and inappropriate comments on social media had breached s 13 of the Public Service Act 1999 (Cth), including by breaching the Australian Public Service Values and Code of Conduct and Centrelink's Social Media Policy, and had brought Centrelink's reputation into disrepute.
Offensive online posts a valid reason for dismissal
The Commission found that the following posts by the employee gave rise to a valid reason for his dismissal:- Posts in which the employee referred to DHS's clients as "spastics and junkies", "whinging junkies" and "junkies";
- Posts in which the employee commented that a large proportion of clients seeking exemption from the work search requirements of Newstart did not have genuine reasons for doing so; and
- Posts in which the employee stated that DHS's processing times were "utterly disgraceful", that he was "embarrassed to work there" and "there isn't a damn thing those of us in the offices can do about it".
However, the Commission rejected DHS's submission that the employee's criticism of the Government itself constituted a valid reason for his dismissal. The Commission held that the relevant sections of the Public Service Act were not sufficiently clear and unambiguous to entirely displace public servants' common law rights to freedom of expression and political communication.
Dismissal unfair despite valid reason
Despite the Commission agreeing that there was a valid reason for the dismissal, it ultimately found that the dismissal was harsh in the circumstances. The Commission arrived at this finding because of:- The lack of evidence to substantiate actual damage to the reputation of DHS by the employee's posts;
- the 'situational' and 'impulsive' nature of the employee's posts, which were found to have been 'made out of frustration and not maliciously' rather than in a deliberate attempt to 'publically damage the reputation of [DHS]';
- the employee's genuine remorse and regret for his conduct; and
- the employee's 20 years of service and limited alternative job prospects.
Having found the dismissal to be unfair, the Commission ordered that the employee be reinstated.
No orders were made in relation to lost remuneration as the Commission considered that any loss of income constituted a 'suitable sanction' for the employee's improper conduct.
We understand that the decision is now subject to appeal by the DHS.
Key lessons for public sector employers
- The mere fact that a public servant has made inappropriate or political comments on social media may not be sufficient to warrant dismissal.
- Training employees on a social media policy may bolster an employer's defence to an unfair dismissal claim.
- In weighing up whether a public employee has breached his or her duties, it will be important to analyse whether the impugned conduct has actually compromised the employee's work or damaged the employer's interests or reputation. Just because an online post is embarrassing or offensive, it may not have sufficient impact to warrant dismissal.
- In all cases, employers must weigh up the nature and gravity of the conduct against factors such as the length and quality of the employee's service, the frequency and extent of any offensive comments and the circumstances in which the comments were made.
We’ll provide an update when the Full Bench hands down its decision.
For more information please contact:
David Catanese
Managing Principal Solicitor
9032 3040
Nicole Lorenz
Solicitor
9032 3051
Thursday, 10 September 2015
Tweets aren't cheap
This case illustrates the great care that must be taken when drafting short, sharp publications intended for dissemination on either social or traditional media platforms.
In Hockey v Fairfax Media Publications Pty Limited, handed down on 30 June 2015, Justice White of the Federal Court of Australia found that Fairfax Media had defamed Federal Treasurer Joe Hockey and awarded him $200,000 in damages. The judgment makes for interesting reading.
The case concerned articles, tweets and a poster published by the Sydney Morning Herald (SMH), The Age and The Canberra Times. The articles stated that Mr Hockey was providing 'privileged access' to a 'select group' in return for donations to the Liberal Party. The tweets and poster acted as sign-posts to the articles through use of the phrase 'Treasurer for Sale' and similar.
Mr Hockey sued the papers' corporate arm, Fairfax, for defamation in three proceedings, which were heard together. He asserted that the publications contained defamatory imputations (e.g. accusations or meanings), including that he had acted corruptly (the relevant imputations).
Did the publications contain the relevant imputations?
Fairfax conceded that the relevant imputations would be defamatory, but denied that the articles, tweets and poster conveyed them. The contest between the parties turned on this point.
In determining whether the articles, tweets and poster conveyed the relevant imputations, Justice White adopted the customary 'reasonable person test' as his starting position. His Honour queried whether the 'ordinary, reasonable reader would have understood the matters complained of in the defamatory senses pleaded' and, in doing so, made several handy comments about the nature and disposition of our hypothetical friend (see paragraphs 63 - 73 for more on this).
Ultimately, his Honour concluded that the ordinary, reasonable person would not have understood the articles to have conveyed the relevant imputations about Mr Hockey, but would have understood two of the tweets and the poster to have done so.
The key distinction between the articles, tweets and posters, in his Honour's judgment was the context that the authors of the articles were able to provide in drafting them. His Honour found that individual passages of the articles, when read in isolation, could be understood as conveying a defamatory imputation. When the articles were read as a whole, however, his Honour found that those passages were 'cured' - that the ordinary, reasonable reader, after reading the articles in full, would arrive at a more nuanced conclusion that did not defame Mr Hockey.
The tweets and posters were a different story. Without the benefit of context, Justice White found that two of the tweets and the poster were undoubtedly defamatory. His Honour did not consider that the hyperlinks contained within the two relevant tweets provided sufficient context since, on the evidence, a substantial number of people viewed the tweets without clicking on them. The third tweet that contained an embedded version of the article was, however, deemed to contain sufficient context and, for that reason, was not regarded as defamatory.
Defence of qualified privilege did not apply
The statutory defence of qualified privilege, and the extended form of qualified privilege recognised in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 were found not to apply because, in his Honour's view, the publications were not reasonable, and appeared to have been motivated by an improper motive that would prevent the defence from succeeding.
His Honour considered the application of the defences to each of the articles, tweets and posters. Mr Hockey conceded, as part of this consideration, that the subject matter of the articles, tweets and poster was a matter of public interest, and that imputations contained in the publications were conveyed in the course of providing the public with information on that subject. The application of qualified privilege therefore centred on the third element of the defence - whether, in all of the circumstances, Fairfax's conduct was reasonable.
His Honour considered a range of factors, some from statute and others from common law (see paragraphs 227 - 230 for more on this), as part of this enquiry. Ultimately, his Honour concluded that Fairfax had not acted reasonably in publishing the articles, tweets or poster.
The most relevant consideration in respect of the articles was the steps Fairfax had taken to obtain a response from Mr Hockey before publishing them - steps which, in his Honour's view, were inadequate. The most relevant consideration in respect of the tweets and poster was the availability of alternative, non-defamatory modes of expressing the same point - that Fairfax could have used words like 'Hockey: donations and access. Herald investigation', or other non-defamatory phrases, without losing effect.
His Honour also considered whether, in the event qualified privilege were deemed to apply, it would be vitiated by the presence of an improper motive by Fairfax. The issue of an improper motive arose from several emails and texts sent between Fairfax editors and journalists, which included an instruction that the story be 'nailed to a cross'. His Honour concluded, on the basis of this exchange, that the articles, tweets and poster had been actuated by SMH editor-in-chief, Darren Goodsir's, personal animus towards Mr Hockey, and that qualified privilege would therefore have been defeated, if it had applied.
To refresh your memory on best practice for members of the VPS on social media see our previous blog When is it ok for a public servant to tweet political opinions?
If you would like advice about this case, or about defamation law and its application to you, please contact:
Solicitor
Managing Principal Solicitor
Tuesday, 20 August 2013
When is it OK for a public servant to tweet political opinions?
Are you a public servant who uses social media to express political views? A recent Federal Circuit Court decision involving a pseudonymous Twitter account has once again highlighted the importance for public servants to 'look before you leap' into social media and for Departments to provide clear guidance about political comments by public servants, whether on social media or in other public fora.
The decision is Banerji v Department of Immigration and it raises more questions than it answers. Being a Federal Circuit Court decision, it is not binding on State courts or the State Government. Furthermore, the Court was deciding an application for an injunction and the decision is not a final determination of the limits of a public servant's freedom to engage in social media. However, the circumstances of a public servant tweeting critical comments about her employer are probably not unique to the federal sphere and it is likely that a Victorian court would consider the case if a similar issue arose with Victorian public servants. It is therefore a timely reminder to revisit the difficult issue of what kind of online political discussions Victorian public servants may legitimately engage in.
Michaela Banerji works for the Department of Immigration. She has a Twitter account under the pseudonym @LaLegale. She used this account to criticise the immigration policies of the Federal Government, the conditions in detention centres and comments made on these issues by various Ministers and government employees.
Ms Banerji claimed the tweets were a ‘simple expression of political opinion, made in her own time away from work’. The Department claimed that the tweets breached:
In doing so, his Honour made some brief comments about Ms Banerji's Twitter use, and whether the implied constitutional right of freedom of expression protects it, which set the Twittersphere alight and gave many a public servant pause for thought before pressing 'retweet'.
An implied right to freedom of political communication exists in our Constitution, limiting federal or State ‘laws’, be they exercises of legislative or executive power. Free communication on matters of government and politics is necessary for the system of representative and responsible government established by s 7 and s 24 of the Constitution, the High Court unanimously reasoned in the 1997 case Lange. The freedom is not absolute but if limitations are to be imposed on it, those limitations must be ‘reasonably appropriate and adapted’ to maintaining the system of government prescribed by the Constitution.
As his Honour was deciding whether to grant an injunction, Judge Neville did not need to consider whether dismissal of Ms Banerji would be reasonable. His Honour simply found, without explanation, that the implied freedom did not provide ‘a license… to breach a contract of employment’.
This is an interesting finding. Entry into contracts is a textbook example of an exercise of executive power. And the implied freedom of political communication can curtail executive power. This is settled law, even though the only aspect of executive power that has been litigated for infringing the freedom is the exercise of delegated legislative power.
Perhaps some contracts lack a sufficient connection with a ‘law’ to fit within the Lange test. But Commonwealth public servant employment contracts are so intertwined with Public Service Act 1999 that it is surely arguable that the disciplinary provisions within this Act must be interpreted in line with the freedom. A discussion for a later judgment, perhaps?
In the meantime, there are only questions and a degree of angst about acceptable online behavior for public servants. When is tweeting a political opinion OK? Is there a difference between pseudonymous accounts and accounts that identify the public servant? What if Ms Banerji had worked for the Department of Treasury while criticising the Department of Immigration? Perhaps it was the way in which Ms Banerji expressed her tweets, which were described as 'sometimes mocking, sometimes critical'? Would it have been OK if Ms Banerji had a sufficient disclaimer in her bio? If she was praising her Department rather than criticising? If she was simply re-tweeting the views of others?
Victorian public servants are bound by the Code of Conduct for Victorian Public Sector Employees (No 1) 2007, the Public Service Standards Commissioner’s ‘Guidance for use of social media in the Victorian public sector’ and individual Departmental policies, such as the Department of Justice’s Social Media Policy.
Clause 2.2 of the Code requires public servants to ‘conduct themselves in an apolitical manner' and to avoid 'in the course of their work, any participation in activities which support a political party or independent candidates including attendance at fund raising or similar events’. Whilst Ms Banerji was expressing political views, she claimed not to be doing so in the course of her employment - although it is interesting to note that Ms Banerji is a 'public affairs officer' responsible for communicating the Department's message. Ms Banerji's tweets were not in support of a political party or candidate.
Clause 3.5 of the Code states: ‘When making a comment in a private capacity, public sector employees ensure their comments are not related to any government activity that they are involved in or connected with as a public sector employee and make it clear they are expressing their own view. They ensure personal comments do not compromise their capacity to perform their public sector role in an unbiased manner’. Ms Banerji was tweeting on matters relating to government activity with which she was connected. But did her views prevent her carrying out her role without bias?
The Department of Justice policy that public servants should not ‘make any comment or post any material that might otherwise cause damage to the department's reputation or bring it into disrepute’ is stated to apply only ‘[w]here your comments or profile can identify you as a public servant’.
The issue of how much political discussion is too much for a public servant has always been a difficult one, with clues to the answer lying in the Constitution Act 1975, the Public Administration Act 2004, the Charter of Human Rights and Responsibilities Act 2006, the VPS Code of Conduct and Departmental policy. The issue is not a new one, but social media has made it more visible.
While the answers remain elusive, Victorian public servants engaging in online or offline political discussion would be wise to read and regularly re-read the VPS Code of Conduct and their Department's policies and to 'think before you tweet'. Victorian departments and agencies should also regularly review their social media and other policies to check whether they are providing useful and specific guidance on how their employees may participate in political discussions in their private lives.
For advice on social media use by Government and public servants, please poke:
Katie Miller
Principal Solicitor
t 8684 0460
katie.miller@vgso.vic.gov.au
The decision
The decision is Banerji v Department of Immigration and it raises more questions than it answers. Being a Federal Circuit Court decision, it is not binding on State courts or the State Government. Furthermore, the Court was deciding an application for an injunction and the decision is not a final determination of the limits of a public servant's freedom to engage in social media. However, the circumstances of a public servant tweeting critical comments about her employer are probably not unique to the federal sphere and it is likely that a Victorian court would consider the case if a similar issue arose with Victorian public servants. It is therefore a timely reminder to revisit the difficult issue of what kind of online political discussions Victorian public servants may legitimately engage in.
Michaela Banerji works for the Department of Immigration. She has a Twitter account under the pseudonym @LaLegale. She used this account to criticise the immigration policies of the Federal Government, the conditions in detention centres and comments made on these issues by various Ministers and government employees.
Ms Banerji claimed the tweets were a ‘simple expression of political opinion, made in her own time away from work’. The Department claimed that the tweets breached:
- her contract of employment;
- the Department’s Social Media Guidelines; and
- the Australian Public Service’s Code of Conduct.
Twitter and the implied freedom of political communication
In doing so, his Honour made some brief comments about Ms Banerji's Twitter use, and whether the implied constitutional right of freedom of expression protects it, which set the Twittersphere alight and gave many a public servant pause for thought before pressing 'retweet'.
An implied right to freedom of political communication exists in our Constitution, limiting federal or State ‘laws’, be they exercises of legislative or executive power. Free communication on matters of government and politics is necessary for the system of representative and responsible government established by s 7 and s 24 of the Constitution, the High Court unanimously reasoned in the 1997 case Lange. The freedom is not absolute but if limitations are to be imposed on it, those limitations must be ‘reasonably appropriate and adapted’ to maintaining the system of government prescribed by the Constitution.
As his Honour was deciding whether to grant an injunction, Judge Neville did not need to consider whether dismissal of Ms Banerji would be reasonable. His Honour simply found, without explanation, that the implied freedom did not provide ‘a license… to breach a contract of employment’.
This is an interesting finding. Entry into contracts is a textbook example of an exercise of executive power. And the implied freedom of political communication can curtail executive power. This is settled law, even though the only aspect of executive power that has been litigated for infringing the freedom is the exercise of delegated legislative power.
Perhaps some contracts lack a sufficient connection with a ‘law’ to fit within the Lange test. But Commonwealth public servant employment contracts are so intertwined with Public Service Act 1999 that it is surely arguable that the disciplinary provisions within this Act must be interpreted in line with the freedom. A discussion for a later judgment, perhaps?
In the meantime, there are only questions and a degree of angst about acceptable online behavior for public servants. When is tweeting a political opinion OK? Is there a difference between pseudonymous accounts and accounts that identify the public servant? What if Ms Banerji had worked for the Department of Treasury while criticising the Department of Immigration? Perhaps it was the way in which Ms Banerji expressed her tweets, which were described as 'sometimes mocking, sometimes critical'? Would it have been OK if Ms Banerji had a sufficient disclaimer in her bio? If she was praising her Department rather than criticising? If she was simply re-tweeting the views of others?
How would Ms Banerji have fared if she were a Victorian public servant?
Victorian public servants are bound by the Code of Conduct for Victorian Public Sector Employees (No 1) 2007, the Public Service Standards Commissioner’s ‘Guidance for use of social media in the Victorian public sector’ and individual Departmental policies, such as the Department of Justice’s Social Media Policy.
Clause 2.2 of the Code requires public servants to ‘conduct themselves in an apolitical manner' and to avoid 'in the course of their work, any participation in activities which support a political party or independent candidates including attendance at fund raising or similar events’. Whilst Ms Banerji was expressing political views, she claimed not to be doing so in the course of her employment - although it is interesting to note that Ms Banerji is a 'public affairs officer' responsible for communicating the Department's message. Ms Banerji's tweets were not in support of a political party or candidate.
Clause 3.5 of the Code states: ‘When making a comment in a private capacity, public sector employees ensure their comments are not related to any government activity that they are involved in or connected with as a public sector employee and make it clear they are expressing their own view. They ensure personal comments do not compromise their capacity to perform their public sector role in an unbiased manner’. Ms Banerji was tweeting on matters relating to government activity with which she was connected. But did her views prevent her carrying out her role without bias?
The Department of Justice policy that public servants should not ‘make any comment or post any material that might otherwise cause damage to the department's reputation or bring it into disrepute’ is stated to apply only ‘[w]here your comments or profile can identify you as a public servant’.
The issue of how much political discussion is too much for a public servant has always been a difficult one, with clues to the answer lying in the Constitution Act 1975, the Public Administration Act 2004, the Charter of Human Rights and Responsibilities Act 2006, the VPS Code of Conduct and Departmental policy. The issue is not a new one, but social media has made it more visible.
While the answers remain elusive, Victorian public servants engaging in online or offline political discussion would be wise to read and regularly re-read the VPS Code of Conduct and their Department's policies and to 'think before you tweet'. Victorian departments and agencies should also regularly review their social media and other policies to check whether they are providing useful and specific guidance on how their employees may participate in political discussions in their private lives.
For advice on social media use by Government and public servants, please poke:
Katie Miller
Principal Solicitor
t 8684 0460
katie.miller@vgso.vic.gov.au
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