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 bullying 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 ow cast toto 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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