Free speech and public service

A minor controversy has broken out in Australia over restrictions on the free speech of public servants. The controversy was prompted by the Australian Public Service Commission issuing revised guidelines on the use of social media by public servants. The guidelines state that “criticising the work, or the administration, of your agency is almost always going to be seen as a breach of the Code,” and so such criticisms invite dismissal.

The Public Service Commissioner, John Lloyd, who I worked beside many years ago when he ran public sector industrial relations  under the hard free market driven Kennett Government (1992-99),  made the already provocative guidelines worse by commenting that public servants may, subject to the discretion and judgement of their employer, be “in trouble” if they liked a facebook post of a family member on the issue of gay marriage. The current Government has a policy on gay marriage, which even some of its own parliamentary members criticise; but if a public servant were, however faintly, to express a differing view, then according to Mr Lloyd’s code of convenience, they would be imperilling the reputation and capacity of the public service to serve the government of the day impartially and professionally. They could be dismissed for a simple social impulse that takes one second to do and in no way affects anything they do at work.

These guidelines are deeply wrong. They breach the right to free speech of public servants, and breach other rights under the International Covenant on Civil and Political Rights. Let’s look at some of the articles of the covenant.

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence [my emphasis], nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

The APSC social media guidelines expose people’s private correspondence on social media to the discretionary judgement of an agency, who may decide certain comments hurt the agency’s reputation. The consequence is to attack a public servant’s ability to perform their job professionally and hence their reputation.  Is the idea of the executive management of public sector agencies patrolling the social media posts any better than Stalin monitoring the correspondence of the dissident poets of the Soviet Union? Must we be like Akhmatova and burn our opinions after speaking them to another so that no evidence is left behind?

Article 18

1. Everyone shall have the right to freedom of thought [my emphasis], conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

If I manifest my beliefs in a vocation of public service on this blog, and I criticise the leadership of the public service for failing to live up to those ethical beliefs, the ordinary virtues of governing well, that I espouse, then, according to Mr Lloyd, I should be sacked. In threatening such action, the new guidelines restrict my freedom of thought (and this right applies to thought and conscience, not only religion) and restricts my ability to manifest that belief.

There are two common defences of such restrictions – that it is necessary to protect the reputation of the public service as impartial and professional, and that is a right that I waive by signing an employment contract. The second of these defences may go to an interpretation of the rights and freedoms of others, ie of employers, as shown in several industrial cases. However, I think properly understood what is being defended here are the current interests of these others, not their fundamental rights and freedoms.

The primary defence of the restriction relates to the protection of public order, in the language of the covenant. How can public order be maintained if the servants of the government of the day can criticise Ministers and agencies willy-nilly, and lead the public to believe that government acts without a single voice, without a common body of authority? There is clearly a threshold issue here. No-one has the right to falsely scream fire in a cinema. However, none of the illustrative examples of breaches of social media use have the gravity of imperilling public order. They tend rather to expose senior managers who are hypersensitive to criticism, and unable to project legitimate authority.

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

You do not have the right to hold opinions without interference if you are threatened with dismissal for shaping your thoughts on a blog that may be followed, such as this one, by less than fifty people. You do not have the freedom to choose the media of your choice if you are told you can say some things in private, but not by liking facebook posts.

As with article 18 there is a balance of right and responsibility in article 19. But Mr Lloyd’s dictats restrict many more acts of free speech than the relatively few that genuinely breach the rights and reputations of others. Criticism after all is neither sedition nor defamation.

These social media guidelines are not especially the work of one side of politics or another. They are part of a general regime of control and impoverishment of public debate by managerial elites. They reflect a general practice that ushers public servants, who often are well informed and capable of meaningful contribution to public dialogue, into a dark, silent corner, while inept political advisers and communications consultants dominate the airwaves with inane talking points.

I believe these guidelines, moreover, are a form of intimidation of critics by a managerial elite who are incapable of conducting respectful dialogue with the employees of their own institution. I am considering making a complaint on the matter to the Australian Human Rights Commission – but think that my energies are better spent looking at ways of sheltering, protecting and renewing the genuine ethos of public service that I espouse.

The irony, of course, is that this managerial elite has done far more damage to the reputation of the public service and its capacity to serve both the government of the day and the broader public with impartiality, professional ethos and pride in the ordinary virtues of governing well. I look around my own institution and see dozens of senior executives who have made their way their through patronage, partisan service in political adviser roles or mercenary service in management consulting.

Indeed, Mr Lloyd himself does not have a distinguished career of serving both sides of politics. He has migrated from one conservative government to another, and long been a member of the right wing industrial relations club at the Institute of Public Affairs. His appointment as Public Service Commissioner, in my opinion, dishonoured the service.

There are, indeed, much greater threats to the reputation, impartiality and professional ethos of the public service than the occasional impulsive social media post. We would do better acting on them, than persecuting people for opinions. Recently, a distinguished Commonwealth public servant, Dennis Richardson, called for a Royal Commission into the institution. He was quoted as saying:

“I sometimes wonder whether the time has not come for a second Coombs commission, in terms of the public sector. We had a royal commission into the public service in the 1970s and I think every so often institutions need to go back to their philosophical foundations. And I sometimes wonder whether the time has not come for a second royal commission, because community attitudes and standards have changed; the way in which ministers, ministerial advisers and public servants work together has completely changed; and I wonder whether we should not be revisiting the philosophical foundations of that.”

I agree with this call. I would also support such a Commission or Inquiry into the public service of the Victorian Government, which is very much rotting from the head down, led by a man who espouses a mercenary belief in something called the “public purpose sector.” Such a Commission or Inquiry should be able to look at the broader foundations of democratic institutions – parliament, parties, public serving universities, and public dialogue across many media.

Such a Commission or Inquiry would better preserve and improve the reputation and integrity of the public service than these contemptible guidelines on social media use.

Republics in distress

As I look around the world at the state of politics, I conclude that our democratic republics are in distress.

This judgment is not a mere oppositional response to Donald Trump or Brexit or any form of disappointment that my preferred leader or team has lost the electoral lottery. It is a more deeply and long held view about decay of our political, governing and public institutions. It is a view I have gestured towards occasionally on The Burning Archive, but never fully articulated. The full argument is the work of a long essay or a short book, but let me at least stammer out some brief fragments here this morning.

1. Politics has turned into a spiteful shouting match, little more than highly conventionalised panel shows.

2. Our political leaders chant mantras of grandiose reform, overwhelmingly about the economy – not humanly measured care for our fellow humans. They have abandoned the true grounds of democratic politics – practical morality, concerned for our neighbours and strangers alike – to preen themselves before the merchant masters of the universe.

3. Governments have lost authority. People mistake this for the public losing trust in politics. But trust is the basis of personal transactions. Authority is the basis of politics. Authority is earned by rightful action, and while it may be claimed by the governing, it can only be bestowed by the governed. Our republics have lost the Mandate of Heaven.

4. Political elites have become parasites on government. They no longer direct the institutions of the republic towards commonly agreed goals, but use those institutions to market themselves to their followers. Elites is too kind a word to describe the camp of followers who seek to make their careers through the exploitation of the resources of government in this way.

5. Political parties have become husks of their former role of mobilising ideas and networks towards a purpose. They have become empty marketing machines which are only viable through commandeering the patronage and marketing resources of government.

6. Governments in these conditions fail to deliver the basic, of ever evolving, services and infrastructure people want. This is Fukuyama’s judgment too. It is for this reason – not social media or fickle people – that public trust is so low. It is a function of poor performance.

7. Political patronage networks and marketing/managerial ideas have cannibalised public institutions, which were once among the independent platoons of democratic society. These institutions, including the public service bureaucracy, professional services and universities, have become spritless shells of their former selves.

8. Public debate has plummeted with the dominance of professionalised party machines, marketing and spectator media. Sources of better public debate – the public institutions – have been sidelined in favour of celebrity, spin doctors and automaton politicians with talking points.

These are gloomy points on a gloomy winter’s morning, and may be refashioned over time.

But how should one respond to the republics in distress? That is a great conceptual and ethical dilemma. To respond with populist sentiment – power to the people? – would be naively heroic. To respond with partisan sentiment – party X is the best, most responsible, most progressive of the credible alternatives – would be heroically naive. To respond with serene optimism – we have faced crises before and we will find a way through this one too – would be Panglossian and stupid.

I am drawn rather to images of endurance, withdrawal and renewal. Our civic problems of governing have escaped our control. We cannot stop the disintegration of our political institutions, and all the adverse consequences of our broken tools of governance, the cascades of spite and failure we see each night on the news; no more than we cannot stop climate change, economic inequality, cultural fragmentation, the unravelling of empires and geo-strategic conflict.

We are entering a new Dark Ages, and the history of those times may provide a lamp to guide us on our long walk to a better life. In the monasteries and margins of the Dark Ages, new ways of living in truth took hold. We should look today to the actions within our control that can serve as the wellsprings for new ways of living. This blog, this practice of writing despite the destructive flames that threaten the culture I hold dear, is one such practice. So too is the care of my family, and the practice of the ordinary virtues (dignity, compassion, humility, respect for human frailty) at work. In acceptance and commitment therapy, I also see a path. There, you deal with life’s adversities my taking committed action that approaches your values. So, in our distressed republics, a committed life will only destroy itself if it tries to break the wheel of our decadent politics. Rather, in each of our lives, we should turn to the simple actions that preserve, protect and nourish for renewal in a better time a more virtuous politics.

The antidote to our republics in distress is the commitment by each of us to living in the truth, and an ethical stance of dissidence, in which our spaces of freedom, such as these blogs as a new samizdat, become sanctuaries from the flames for at least one seedling of a virtuous life.

As Vaclav Havel wrote and as I have drawn on his inspiration before

“I favour… Politics as one of the ways of seeking and achieving meaningful lives, of protecting them and serving them. I favour politics as practical morality, as service to the truth, as essentially human and humanly measured care for our fellow humans. It is, I presume, an approach which, in this world, is extremely impractical and difficult to apply in daily life. Still, I know no better alternative. (From “Politics and conscience”) “