Top bureaucrats don’t want to be criticised on social media, but their fix may be unconstitutional
- Written by: Weekend Times
Australia’s top bureaucrats want parliament to curtail politicians posting clips to social media of senior public servants answering questions before parliamentary inquiries.
The Secretaries Board is a committee of the
heads of federal government departments, some of whom have million-dollar salaries. It has made a submission to a parliamentary inquiry saying it is:
concerned about the increasing use of excerpts from committee proceedings on social media, particularly where material is presented without context and exposes officials to ridicule, hostility or abuse.
The Secretaries Board said it is concerned about officials being “publicly criticised”. It wants parliament “to prevent the use of this evidence on social media”.
Politicians often post clips online of senior bureaucrats giving what ordinary members of the public would consider evasive answers to questions asked by politicians during parliamentary hearings.
Limiting politicians from posting these clips to social media undermines responsible government and may even be unconstitutional.
What does the Secretaries Board want?
The Secretaries Board submission does not expressly ask for an outright ban on posting clips online of bureaucrats giving evidence to parliament. The clever skill with words displayed by top bureaucrats in some answers during parliamentary hearings is on full display in the submission.
The submission asks for a ban on posting clips that might be “harmful”. However, it defines harmful in a way that not only includes defamation and abuse, but also ridicule and criticism.
A person who is defamed by a social media post or in the comments section of a social media post can already sue for defamation. They can even sue the original poster (which in this case would be a politician) for allowing the defamatory comment to remain online.
And it is a crime to menace or harass a person on social media. So we already have laws against the genuinely “harmful” things identified in the submission.
The Secretaries Board’s preference for something approaching a full ban on politicians posting clips appears clearer elsewhere in the submission. The board provided alternative options in the event that “parliament were not inclined to prevent the use of this evidence on social media”.
The submission suggests politicians should “present excerpts in full and in a manner that accurately reflects the substance of proceedings”. In other words, make sure the clips are long rather than short. This would reduce public engagement with them.
The submission also suggests a rule that “videos should not be edited, and captions should not be added”. And the submission says posts of clips “should be made with comments disabled”. This would prevent tagging of others in the comments to bring the clip to other people’s attention and reduce public discussion.
These are extraordinary proposals at odds with ordinary free speech practices. TV news bulletins and chat shows routinely edit videos and add captions. Newspapers are not told which quotes they can publish.
Oddly, the Secretaries Board’s suggestions are expressed to apply only to “parliamentarians”, and not to others who might post clips of bureaucrats answering questions during parliamentary hearings.
This suggests a level of bureaucrat resentment towards the parliamentarians whose constitutional role is to hold the government and its top bureaucrats to account.
The proposal is probably unconstitutional
The Australian Constitution’s requirement that parliamentarians be “chosen” by the people gives rise to an implied freedom of political communication.
Without freedom to communicate about political matters, and to discuss and debate what the government is doing or should do, that choice would not really be a meaningful one.
A law that burdens political communication will be invalid unless the law has a legitimate purpose and that law is proportionate to that purpose.
The Secretaries Board’s proposal to limit the posting of clips would directly and expressly burden political communication.
Politicians use these clips to communicate with voters about the government. They are a way some voters learn about what government officials are telling parliament about the activities of government.
These videos allow voters to learn about the opinions of the politicians posting the clips. Discussion in the comments section allows politicians to learn what some voters think and for voters to discuss issues among themselves.
All of that would be reduced. And it would be reduced in a way that is inevitably politically beneficial to the government of the day.
A purpose is legitimate if it is compatible with Australia’s system of representative and responsible government. This includes the government being accountable to the people’s elected representatives in parliament.
But a purpose of preventing officials being “publicly criticised” is not legitimate.
A law that seeks to protect against serious and genuine harms and has an incidental impact on political communication can be valid. But each of the Secretaries Board’s proposals targets political communication directly.
And each is calibrated to preventing criticism rather than preventing any genuine harm.
The High Court has dealt with a similar case before. In one of the very first implied freedom of political communication cases in 1992, the High Court struck down a law that made it illegal to “use words” intended to bring certain senior government officials “into disrepute”.
More cultural change needed
One of the themes of the Robodebt Royal Commission’s report was a culture at the senior levels of the public service that was hostile to transparency and accountability.
It may be that the Secretaries Board’s proposal suggests more culture change work is necessary.
If top bureaucrats don’t enjoy being criticised and mocked for giving evasive answers during parliamentary hearings, perhaps they should stop giving evasive answers.
Luke Beck is a member of the Australian Labor Party.
