Balancing Public Servants’ Responsibilities with The Implied Freedom of Political Communication: What Can We Learn from Banerji?

There is a longstanding institutional tradition that requires public servants to refrain from participating in public debate, in the interests of preserving Australian Public Service (‘APS’) impartiality. At the same time, there is recognition in APS guidelines that public servants are also citizens entitled, to some extent, to express their political views. Comcare v Banerji presented an opportunity to resolve these competing tensions, yet the case leaves us with various uncertainties about whether and how public servants can contribute to public debate. This uncertainty has several potential consequences. First, without principled criterion by which to assess public comments, managers might err on the side of caution and overreach in restricting employees’ speech. Second, government employees might self-censor for similar reasons. Third, when gagging of public servants goes too far, this can itself appear politically biased, compromising APS impartiality and professionalism. In this paper, we argue that public servants are constitutional actors. Like other constitutional actors, they should be allowed to wear two hats, to enable a reasonable level of free speech in their private and expert capacities. We propose policy recommendations building on the Justices’ proposals, that may help clarify a better balance between public servants’ responsibilities and the freedom of political communication.