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The High Court of Australia has recently ruled in Comcare v. Banerji which was a test case that revealed the limits of the implied freedom of speech in Australia.

A public servant, Michaela Banerji, lost her job for her political tweets under an anonymous alias. Public servants are not supposed to express political views.

The Guardian explains the justices agreed:

that the public sector gag was “reasonably necessary and adequately balanced” given the legitimate purpose of ensuring an apolitical public service.

My question is about that last part. What is the legitimate purpose of ensuring an apolitical public service? Why should public servants be gagged from expressing their political views outside of their work hours?

(I understand that a government might not like to be criticised, but that's hardly a legitimate purpose.)

  • Are the public employees educated or provided with training upon hiring to not to engage in Social Media or other public forums discussing their political affiliations. Similar to the training done on Sexual Harassment, Discrimination and Money Laundering in work places. – Up-In-Air Aug 7 at 16:31
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    While party politicians are in charge of the government, the wider goverment (the entirety of all govt. departments etc.) is there to serve all people, not only those in favour of the current government. If you support party A, and the policeman pulling you over is an expressed supporter of party B, doesn't that leave an odd feeling? – Dohn Joe Aug 8 at 11:24
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    @DohnJoe: I already know that the police officer that pulls me over is very likely to have different political views (I don't just mean party political) to the median citizen and different views to me. Their actions are already influenced by those views. The question is whether it benefits society for those views to be gagged. – Oddthinking Aug 8 at 12:03
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    This makes me wonder: the public servant in this example criticized the immigration policy to be too lax. Would she have lost her job, in the current political climate, if she instead had either praised the current immigration policy or stated it was too restrictive? These would also have been "political statements". – vsz Aug 8 at 21:02
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    Fortuitously, I met a couple of young Australian public servants at a party last night. They were unfamiliar with the gag, and could not recall any training on this matter. They consulted another party-goer who they said "would know" and he referred them to the "APS (Australian Public Service) Code of Conduct". – Oddthinking Aug 11 at 6:46
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This topic is examined at quite some length in Ontario Law Reform Commission, Report on Political Activity, Public Comment and Disclosure by Crown Employees (1986) (cited by Mcmanus v Scott-Charlton which was cited in the judgement of the original case in question, which is how I ended up on it; I mention this lest one think that a Canadian document might be completely irrelevant.)

To take a brief an excerpt as possible from that 400+ page document:

The components of the traditional doctrine of political neutrality are fairly clearly established in the literature. The tenets of the doctrine are as follows:

  1. Politics and policy are separated from administration. Thus, politicians make policy decisions; public servants execute these decisions.
  2. Public servants are appointed and promoted on the basis of merit rather than on the basis of party affiliation.
  3. Public servants do not engage in partisan political activities.
  4. Public servants do not express publicly their personal views on government policies or administration.
  5. Public servants provide forthright and objective advice to their political masters in private and in confidence. In return, political executives protect the anonymity of public servants by publicly accepting responsibility for departmental decisions.
  6. Public servants execute policy decisions loyally and zealously irrespective of the philosophy and programmes of the party in power and regardless of their personal opinions. As a result, public servants enjoy security of tenure during good behaviour and satisfactory performance.

The report goes on to discuss the purposes and justifications of each of these at great length, if one wishes to look into it further. A specific discussion of restrictions on public comment (point #4, above) begins near the bottom of page 19 and wraps up by page 22.

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    To put the context inversely, imagine if the majority of people voted for a particular policy that went one way, and the (keyword) paid civil servant entrusted with carrying out this policy did everything they could to oppose, undermine or otherwise sabotage this policy? Not only is it undemocratic and unaccountable (you cannot vote a civil servant out), but it encourages all sorts of foul play. If you don't agree with the policy you've been tasked with doing, you basically resign. The same as any job at any other organisation. – SSight3 Aug 8 at 12:16
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    @SSight3: With the gag, you may still have a civil servant that opposes, undermines or sabotages the policy. The only difference is they may not tweet about it. It is even less accountable if their extreme views are kept hidden. However, the report explains some reasons for the gag - and not being promoted for party political reasons is a strong one. – Oddthinking Aug 8 at 16:00
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    @SSight3 Once upon a time, the "Spoils System" allowed people to vote a civil servant out, by giving the opposition party control of the government. A change at the top would mean civil servants in management positions all the way down to the lowly postmaster would be fired, and replaced by members of the other party/coalition. That system was abolished in favor of the current scheme, in which civil servants at all but the highest levels keep their jobs through political changes, in exchange for which they must refrain from being political themselves. ... – Monty Harder Aug 8 at 18:51
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    ... The flaw in the current system is precisely that civil servants are difficult to fire, leading to the idea of a permanent bureaucracy (like the Mandarins under Imperial China) that doesn't answer to anyone but its own institutional inertia. In recent years, the name "Deep State" has come to represent the way that bureaucracy can strongly oppose the efforts of the officials nominally in charge of things to achieve any real reforms. – Monty Harder Aug 8 at 19:07
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    It seems like this philosophy should only apply to people who make policy-related decisions. Do the laws actually make this distinction, or could a cook in the cafeteria be fired for political tweets? – Barmar Aug 9 at 17:49
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The core concept here is procedural fairness—or rather, the appearance of procedural fairness.

Procedural fairness involves whether impartial and open procedures are used when decisions affecting the well being of others are made. Is the decision-maker impartial? Is the game rigged? Procedural fairness is crucial for the health of a democracy because when people have faith in the system, they are much more willing to accept outcomes that are disadvantageous to themselves.

(https://democracyjournal.org/magazine/28/of-freedom-and-fairness/)

A public servant who holds strongly partisan political views could, in theory, allow their politics to seep into their work, and twist a part of government that is supposed to be neutral to give their party an unfair advantage. Of course, they could also do their job impartially and not allow their personal views to influence their work—and most of them do. And even if a public servant is a "bad apple", the mechanisms of government may have built-in checks and balances that limit the damage they can do, thus ensuring procedural fairness.

But if a public servant puts their political views out into the public sphere, some people will inevitably think that they're not being impartial. This has nothing to do with if they're actually being impartial, or if procedural fairness is actually being upheld. It's all perception. And this perception of corruption does its own kind of damage.

Consider, as an example, the case of FBI agent Peter Strozk, who expressed some strongly anti-Trump opinions in private text messages while simultaneously helping to carry out an investigation into President Trump's ties to Russia. The texts leaked, and Trump and his allies raised hell. They accused the FBI of deep corruption, saying that Strozk and others were conspiring against Trump and deliberately seeking to keep him out or kick him out of office by any means necessary. The counterarguments that Strozk was just one figure in a larger investigation, or that there was no evidence of him breaching standard FBI procedures, did not satisfy them.

In other words, Trump argued that procedural fairness was missing in the FBI's investigation. And whether you believe that's true or not, a lot of people did believe it was true, and probably still do. Which means that if they ever see any evidence against Trump coming from the FBI, they will automatically dismiss it regardless of its merits, because they believe that the FBI is corrupt.

And those were private text messages. Can you imagine what would have happened if Strozk tweeted those opinions?


To specifically address the points from Zeus's comment:

it could be easily argued that gagging public servants doesn't actually help the situation

Yes, public servants refraining from sharing their political opinions does not actually ensure procedural fairness. That is done through other mechanisms. Their silence merely safeguards the perception of procedural fairness. But the perception is important too. People will not trust a fair game that looks rigged, any more than they will trust a game that is actually rigged.

like all humans, they will still act according to their biases, just quietly. Transparency is always better.

If the mechanisms of government are well-designed, with appropriate checks and balances, then the operation of that government will be detached from the personal opinions of the people carrying it out to the greatest extent possible. It's never going to be 100%, but after a certain point, being "transparent" about personal views will just lead people to imagine that those personal views are more important than they actually are. When a public servant calls the Whig president an idiot, and pledges undying loyalty to the Bull Moose party, many Whig voters either won't know or won't care that the servant's job is designed to make that opinion irrelevant. They just hear that a person who is supposed to carry out the Whigs' marching orders is rebelling.

And that's before we even consider 'rights'.

It would be perfectly reasonable to argue that preventing public servants from expressing their opinions as private citizens is a violation of their rights to free speech. However, the question as asked is "why should public servants be apolitical", not "is it legal or ethical for the government to force public servants to be apolitical". I am not weighing in on whether the silence of public servants should be forced or voluntary; I am just trying to show why that silence is a good idea.

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    But it could be easily argued that gaging public servants doesn't actually help the situation: like all humans, they will still act according to their biases, just quietly. Transparency is always better. And that's before we even consider 'rights'. – Zeus Aug 8 at 13:19
  • @Zeus I have edited my post to respond to your comment. – MJ713 Aug 8 at 16:48
  • @Zeus: we can also tackle it the other way round. Where I am, public officials must act "with the moderation and self-restraint required by their office" (rough translation). Now, if a public officer is not able or willing to apply such moderation and self-restraint when airing their political opinions, the suspicion is that neither can we trust them to excercise the moderation and self-restraint that is needed to neutrally provide their services. (But they can be political, they can even be candidates for parliament - they just have to be suspended from their executive office while being part – cbeleites Aug 8 at 21:09
  • of the legislative). So this is more about personal characteristics rather than the particular political opinion (as long as that is constitutional). Similarly, a public official caught drunk driving may be fired or demoted even if their office doesn't have the least to do with driving. – cbeleites Aug 8 at 21:11
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    @Zeus "[H]ere it is public that is 'wrong' to assume anything": I agree, but it is hard to change the behavior of the whole public. Many people (and news agencies) will just ignore a discussion of "in-office checks" because it's "boring", and they prefer to pounce on tiny glints of controversy instead. Public servants are a far smaller group, so it is easier for them to change their behavior to suit the public than the other way round. So...do we make the pub-servs change their behavior (unfair, but pragmatic), or do we find some way to reshape the public discourse (idealistic, but difficult)? – MJ713 Aug 9 at 4:25
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The default state of government employment is the spoils system: https://en.wikipedia.org/wiki/Spoils_system i.e. the new government comes in, fires all the people from the adversary administration and gives those jobs to their supporters as rewards. Needless to say, this is terrible for professionalism and voters demanded changes.

The compromise that was historically reached, is the apolitical, professional civil service that is not replaced with each new administration, because the are (theoretically) totally apolitical and not a threat to the party in power.

Right now, civil service jobs have an iron-clad guarantee, if you just keep your mouth shut. If civil servants could express political opinions, especially ones different to the ruling party, then the ruling party would be morally justified in repealing civil service protections(in every country that I know of, civil service laws are just normal laws, repealable by a simple majority, not written into the constitution. And if the ruling party is ruling, they will have that majority most of the time) and simply firing everyone they don't like.

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There have already been excellent answers given. I just want to give a personal answer as someone who has served as a civil servant, in the U.K..

There are two models of what a civil servant is. In one, civil servants ‘belong’ to the political government of the day. So in the US all senior civil servants are appointed by an incoming president, and their predecessors lose their jobs. In fact this is generally the case in dictatorships, in one party states like China, and in bogus democracies like Russia.

The alternative is that which I have worked, sometimes called a ‘professional’ civil service. in which civil servants at every level may be of any political persuasion and are not removed and replaced by an incoming government.

In fact, for a civil servant in the U.K., a change of government from one political party to another is one of the most exciting intellectual moments of a career. It requires that, by the end of the election, one is fully familiar with the political direction of the main parties and the policy options that are likely to be. I was in education , and so had to be familiar with the possible directions of travel with respect to that.

In that sense, no civil servant of the British (or more broadly western European) variety is allowed publicly to either advocate or denigrate government policy.

So what do they do if they think a government policy is foolish or unjust? Then, if they feel strongly enough about it, they resign. In that sense, a government employee voluntarily gives up his/her right to freedom of expression for as long as they remain in post.

Nobody, of course, can be totally apolitical. So a politically neutral system depends on the recruitment of as politically broad range of staff. What, in Her Majesty’s Inspectorate led to political and ideological neutrality was not, in other words that all inspectors were themselves apolitical or free of ideology; it was that they were (in my time) recruited regardless of the ideology or political fashion of the day or government. It was working day to day with respected colleagues of widely differing points of view that made the corporate body politically neutral and so independent, while able to ‘have regard to’ the policies of the elected government of the day. It is possible to advise policy makers objectively on the means to fulfil policies, the obstacles that lie in the way, the potential benefits and risks, where the politically committed individual will tend to concentrate the potential advantages and discount disadvantages. The more politically diverse the senior civil service can be, the greater the chance that political leaders will receive impartial and objective advice. They have to come to an understanding of all contending points of view, because of the professional ethos of the service. Where the most senior civil service is directly appointed by the political leader, usually with regard either to their political affiliation or at least their known sympathy with their political leanings, as in the US system, this pressure for objectivity is less evident.

Of course, nothing prevents a political leader, like a president, from appointing without regard to known political or policy preferences. But this is an excellence hard to achieve even in the best of presidents and prime ministers.

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Australia, as with a number of other commonwealth countries, has a public service that does not change when the administration changes. As a result, public servants are required to be politically neutral, and to execute the policy of the current government, irrespective of their own opinions.

This contrasts with, for example, the US, where a new administration is expected to bring in their own people for senior roles.

The merits of these systems is of course debated, but it is an uncontroversial fact that Australia's political system is based on an apolitical public service.

  • "This contrasts with, for example, the US, where a new administration is expected to bring in their own people for senior roles." Last I checked, Australia, like most parliamentary countries, had ministers, just as the US has cabinet secretaries. Now, the number of ministers in Australia might be smaller than the number of political appointees in the US, even in proportion to the relative sizes of their governments. But both types of administration bring in their own people for senior roles. – Brythan Aug 9 at 16:28
  • It is easy to see that a public servant (or civil servant) needs to execute the policy of the current government, irrespective of their own opinions. It is also a given that public servants will have their own political opinions, even if they are gagged from sharing them. The question is: what is the public good in gagging them from expressing those opinions? – Oddthinking Aug 9 at 16:34
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    @Brythan A minister is voted for by the electorate as a member of parliament (MP). The leader of the party then chooses which MPs will get departments (in power) or shadow departments (in opposition). All MPs are allow to hire their own office staff, who are not civil servants. Ministers also have department staff (civil servants) who help them implement their policies. Their office staff help them get reelected, which the civil service is not allowed to participate in. – CJ Dennis Aug 10 at 1:54
  • @Brythan it's probably true that the difference is quantitative rather than qualitative, but many senior positions that are politically appointed in the US are permanent in parliamentary systems. For example, the director-general is security is a permanent role in Australia, whereas the roughly equivalent role of national security advisor is a political appointment if the US. – James_pic Aug 10 at 18:00
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    Yes, I didn't want to rehash things the accepted answer said, and felt that the accepted answer covered that. My answer was more intended to be complementary - no other answers, at that time, drew attention to the fact that the Australian system was based on a quite different set of principles to the US system, that many would be more familiar with. – James_pic Aug 12 at 6:58
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@Oddthinking By not expressing opinions they can't be fired for them. This means that you actually retain experienced professional staff rather than having clueless amateurs who are related to someone coming in every time the government changes.

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    Is that the primary reason? Wouldn't make a rule to prevent that from being a fireable offense be an easier solution? – JJJ Aug 10 at 21:04
  • Yeah, but that rule could be changed by the ruling party on account of them being ruling. The apolitical civil service idea has enough "moral" legitimacy that it's not touched by anyone when the top dog switches. – Eugene Aug 12 at 17:48

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