The government’s new social media policies for public servants could be unconstitutional, a workplace law expert has told Crikey. Starting today, public servants will be subjected to a policy that goes further than most other policies of its kind, taking in not only public criticism of government policy, but also posting anonymously or under a pseudonym. Even more Orwellian, “liking”, sharing, or even failing to delete criticism of the government posted on a public servant’s page by other people will be treated as though the public servant had made the disparaging comment.

The new policy says:

“If you ‘like’ something on a social media platform, it will generally be taken to be an endorsement of that material as though you’d created that material yourself. ‘Sharing’ a post has much the same effect.”

It also says posting something with an “angry face emoji” is not enough to protect a public servant from breaching the code.

It is unclear if the government would actually be able to enforce the new policy, with the possibility that staff dismissed under the new policy could easily wage an unfair dismissal case against the government.

Andrew Stewart, workplace law expert at the University of Adelaide, told Crikey the policy could fall down on a few issues. “While it’s generally accepted that a public servant can be held to a higher standard, even in their private lives, than someone who works in the private sector, I think there would be major doubts about the ability to enforce this policy at its outer limits.” 

Firstly, Stewart says there is the question of how a court would consider the policy as it relates to an employee. If an employee makes an unfair dismissal application, the Fair Work Commission will consider, among other things, whether a dismissal is harsh, unjust or unreasonable. The “or” is key here — a dismissal might be, say, reasonable (for example, an employee terminated for breaching a clearly stated workplace policy) but still harsh (the breach is minor, the employee has a good record of service otherwise, etc) and thus still an unfair dismissal.

“The courts always consider the question of whether a policy regarding social media policies regards conduct that has a reasonable connection to one’s employment. So in the case of a public servant, who may not make it obvious they are even a public servant on their profile, failing to delete a post by someone else, it’s very hard to imagine a court finding that to be a valid reason for termination, and even if it is, it could be argued to be too harsh.” 

The second issue Stewart sees is even more serious — the new policy might breach the constitution.

“It has been found by the High Court that there is an implied right to freedom of political communication, and the government can’t make laws to curtail that. Now, this policy is presumably made under public sector legislation, and so we may well see the challenge to validity of these rules come from that, rather than employment law.” 

The right is not expressed, but implied. In 1992, the High Court construed the constitutional requirement requirement for representative democracy meant it was essential that the Australian people be able freely discuss matters relating to the government. This is subject to restrictions — such as bans on political discussions at polling places — but still represents a major challenge to the validity of the new policy. 

“It’s a double-edged sword, being a public servant,” Stewart said. “They may be held to higher standard than private sector employees, but in some ways their implied right to freedom of political communication is more strongly protected.” 

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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