APSC’s current online participation guidance becoming an unwanted and unneeded distraction

There’s been a great deal of scrutiny of the APSC’s revised guidance on social media participation by public servants since it came into effect in early 2012 (coincidentally about the time I left the public service).

Initially dubbed by some parts of the media as the ‘Jericho amendments‘ (sorry Greg!), the 2012 guidance has regularly been criticised by a wide range of commentators including former public servants such as Bernard Keane, Greg Jericho and myself.

The guidance, Circular 2012/1: Revisions to the Commission’s guidance on making public comment and participating online, significantly narrowed the scope of what public servants could personally say publicly online (even while anonymous).

The original APSC Guidance on online participation from 2009 was, in my view, balanced and well-considered. It placed some necessary constraints on how public servants spoke personally in public social media channels about their own agency and the policies they worked on. This original guidance would not have been out-of-place in any workplace.

However the 2012 revision extended this much further, stating that it was not appropriate for public servants to make public comment that was:

“so harsh or extreme in its criticism of the Government, a member of parliament from another political party, or their respective policies, that it raises questions about the APS employee’s capacity to work professionally, efficiently or impartially. Such comment does not have to relate to the employee’s area of work”

In other words – any matter which might be the subject of a policy from any party with representation in parliament, even where the individual public servant was unaware of the policy and regardless of whether the public servant worked in the area.

This covers a large number of policies, from a large number of minor parties – potentially impacting on many areas of a public servant’s lives.

For example it could make it difficult and uncomfortable for someone working, say, in the Communication portfolio, to publicly state their concerns about the NDIS, our diplomatic position on Sri Lanka or the treatment of Indigenous people in the Northern Territory – even where they are the parent of a disabled person, have a partner of Sri Lankan descent and their own family comes from the Northern Territory.

‘So harsh or extreme’ is not well defined by the guidance. It is subject to individual rulings by agency leadership, which could lead to inconsistency, as well as makes the words a potential tool for managers or colleagues to legally bully staff.

There’s also no time limit on comments implied in the guidance – so if you’ve said nasty things online about a local member while at university, before even considering a role in the APS, you have no implicit right of appeal based on when you said it.

Even these types of retrospective comments could still ‘raise questions about the APS employee’s capacity to work professionally, efficiently or impartially’.

Effectively, anything you’ve ever said publicly could be used to expel you from the public service at any future time.

You may note that I left the public service about the time the revised guidance came into effect. Without a doubt this blog would have fallen foul of this guidance retrospectively if I had not.

I saw another impact of the APSC participation guidance a few weeks ago when I spoke at a Records Management conference in Melbourne. In the afternoon there was a broad discussion by delegates of current record keeping legislation at state and federal level.

While state public servants were happy to publicly discuss the issues they saw with their state legislation and how to fix them, several federal public servants refused to comment to the group on Australian Government regarding record keeping law.

One of them confided to me personally that, while he was aware of several major issues with the current law, he was not prepared to air these issues or their potential solutions ‘publicly’ (amidst a group of his peers and some non-government people at a forum), as APSC guidance on participation meant that if he criticised government policy or laws it could end his career.

Rightly or wrongly he believed this, based on the APSC’s Circular 2012/1: Revisions to the Commission’s guidance on making public comment and participating online.

I was appalled to see experts silenced and self-censoring in this way. In my view this reduces government effectiveness and productivity by reducing the capability for the public service to improve and develop good policy.

My understanding is that the current APSC leadership remains comfortable with the current phrasing and while many senior public sector leaders and other officers have expressed disagreement with the revised policy to me privately, no-one senior is prepared to ‘rock the boat’.

In the words of one public sector senior executive to me, the senior leadership are in ‘survival mode’ right now and no-one wants to call unwanted attention to themselves which could damage their effectiveness in other areas, or their future career.

Now the Department of Prime Minister and Cabinet’s policy on reporting inappropriate social media behaviour has cast another spotlight on this APSC guidance.

The media has portrayed the PM&C’s policy as ‘dob in colleagues‘ and on social media it has been portrayed as a step towards a police state.

In my view the actual intent of the PM&C guidance is quite benign.

There’s nothing inappropriate about asking your staff to report fraudulent or bullying behaviour by their colleagues when they see it, and many agencies and companies have processes to support this behaviour as it improves workplaces, reducing corruption and improving productivity.

The concept of having staff at Prime Minister and Cabinet report back to the agency if they see their colleagues behaving badly on social media, criticising their own agency or policies, is no different to reporting other inappropriate behaviour.

Except when it is combined with the enormous reach of the current APSC guidance.

The combination of APSC guidance and the PM&C policy make it appear the public service is becoming a political auxiliary to the current government – even though APSC guidance pre-dates the current government and the PM&C policy is otherwise benign.

The high level of attention now cast onto this guidance and policy has now achieved the exact reverse of their intended purpose – they have damaged public trust and respect in the public service and Australian Government.

This is not due to inappropriate online behaviour by low-level public sector staff, but to the risk-averse decision of a few senior public sector leaders, who agreed to put the revised APSC guidance in place.

The current APSC guidance has now become an unwanted and unneeded distraction to a public service which has largely performed exceptionally well on social channels and had very few cases of inappropriate online behaviour by staff.

I would also not expect Ministers to be too happy at having their agendas sidelined by a few senior public servants, who decided in 2012 to enforce APS social media guidance that was too broad, too available to abuse and too invasive for the public or media to ignore.

The current storm will blow over, it always does, however the damage has already been done.

I hope the APSC recognise their part in this and revisit the scope and wording of Circular 2012/1.

It could, with some support and education, lead to improved engagement by public servants in public debate which, given their depth of experience, professionalism and knowledge, would be a good outcome for Australia’s democracy.

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Mark Hammer

We have something similar, though I suppose not as harsh or chilling, here in Canada.

There is every good reason to want to provide citizens assurances that their public service – the one they pay for – is faithfully implementing the the laws, policies, and initiatives passed by the government democratically elected by the will of the people. There is every good reason for elected parliamentarians to seek assurances that the public servants they trust to implement those laws, policies, and initiatives will do so faithfully, and in nonpartisan fashion…after having provided fearless advice….that was listened to. No public servant should be working behind the scenes to undermine or thwart such government actions, or convey to the public that they might do so.

However…unless one is employed by a campaign strategist, neither is the public servant contractually obliged to be a shill for the government of the day and work to get them re-elected. If the laws, policies, and initiatives hatched by that government are wise and effective, the electors will notice, and the government will be returned to office, but the public servant should not be pressured to hasten or assure that, just as they should not be working to prevent it.

But here is where we come to a few conundrums:

The public servant does not stop being a citizen…ever. And as citizen they have a right to hold a viewpoint about a policy. They certainly should not publicize that view in a manner that would suggest they are working against it in their capacity as public servant, or that their view might reflect the view of their ministry/agency, or the public service overall (unless maybe it actually does). But as long as that separation can be maintained, their rights as citizen should be assured.

What does it take to provide that separation/insulation? Within our own regime here – and I am NOT speaking for the folks who oversee political impartiality; one is best directed to the policy site in that respect – there is a sliding, contextually appropriate interpretation. If few know one as a public servant, one’s actions have low visibility, one’s role has low impact on decision-making, and the political expression is not aggregious, then there is little risk of transgressing the lines described above. At the other end, clearly there is NO occasion when a deputy minister (undersecretary) could have a TV mic stuck in their face and declare “Well I thought what the PM proposed today was bloody stupid. How did he/she ever get elected?”. Apart from incivility, it is nigh impossible for any citizen who may have voted for that PM’s party to now feel that powerful forces within the public service are NOT working against the government, or that maybe they would not be treated hospitably or fairly at a service counter, should their political preferences come out in any way. And that’s not how public service is supposed to work.

At the same time, the public also deserves assurances that their public service is thinking on their behalf, questioning the wisdom and foresight of policies…in the public interest…and reflective of the diversity of the electorate. More bluntly, they need to know we are loyal, but not sycophants doing whatever is required for a promotion or the safety of our jobs. Of course, the good folk in communications tend to think in terms of the moment, and not the aggregate. So if a healthy diversity of contrasting and complementary views emerges from the public service, that does not placate them. It is the last opinion expressed that sets off alarms amongst the comms folk and ministerial staffers.

Ultimately, it is a judgment call. But it is not only a judgment call for the “expressee”. It is a judgment call for the managers who are held accountable for the actions of their staff. And I suspect that’s where the chilliest chill arises from. Public managers are not a particularly fearless lot. Sometimes, it’s almost as if there need to be safeguards against the overapplication of safeguards.

I suspect every jurisdiction’s guidelines for political expression will, of necessity, be evergreen documents, if only because the number of ways for expressing one’s politics keep expanding, generally in ways that unfortunately exploit our impulsiveness (as so many facepalm-inducing tweets from recalcitrant politicians often illustrate). Whatever policies and guidance documents there were ten years ago, for maintaining political impartiality, are now hopelessly out of date. And whatever policies and guidance documents get drafted in 2014 will likely appear woefully incomplete anachronisms by 2020.

At one level, you have every right to be frustrated by the guidelines provided to you by the APSC. At another level, I’m not sure any of us could expect better and more au courant guidelines.

For myself, I always post under my own name. It keeps me honest and fair. If a policy or piece of legislation is going to cause trouble for the government, perhaps by being struck down by the courts, then I have no issue depicting it as such. That’s different than trashing a party. To be fair, though, there are many that can’t pull that off with grace. The temptation to say “Here’s why they are idiots” instead of “Here is where it (the legislation) could be more effective” or “Here is why X is actually less of a problem than thought”, is often too great. Sadly, it is the culture of easily-fulfilled impulsiveness we live in today that compels the very policies that upset you.