Section 6: Employees as citizens

6.1 Summary

6.1.1 Australian Public Service (APS) employees are citizens and members of the community, but the right to serve the community as APS employees comes with certain responsibilities. These responsibilities include maintaining the confidence of the community in the capacity of the APS, and each member of it, to undertake their duties professionally and impartially.

6.1.2 Section 13(11) of the APS Code of Conduct (the Code) in the Public Service Act 1999 (PS Act) requires APS employees to behave in a way that upholds the APS Values and Employment Principles in sections 10 and 10A of the PS Act, and the integrity and good reputation of the employee's agency and the APS at all times.

6.1.3 Areas where employees should take particular care about their behaviour as citizens and its impact on their duties include:

when considering making public comment in an unofficial capacity
when participating in political activities
when considering an action that might raise a perception of conflict of interest, such as taking a second job, participating in voluntary activities, accepting a gift or benefit or making an investment—see Section 5: Conflict of interest
when working overseas—see Section 8: Working overseas
when they are identifiable as an APS employee.

6.2 Making public comment, including online

6.2.1 The engagement of APS employees in robust discussion is an important part of open government. The material in this section provides guidance for APS agencies about the limits on the ability of public servants to make public comments in an unofficial capacity. Additional guidance about the limits on public comment for APS employees is available on the Australian Public Service Commission website.

6.2.2 When making public comments, APS employees must ensure that their behaviour is consistent with the APS Values, Employment Principles and the Code.

6.2.3 The term 'public comment' has a broad meaning and includes comment made in forums or media such as:

at public speaking engagements
during radio or television interviews
on online social media including blogs, social networking sites and other online media that allow user participation and interaction
in correspondence with the press
in books or notices
in academic or professional journals
in other forums where the comment is intended for, or may be accessed by, the community.

6.2.4 Some comments may be intended as private communication, but are public comment nonetheless. For example, an email from a colleague to a personal friend may be intended to be private. However, if that friend then forwards the email, or publishes it, the impact is the same as if the employee had done so.

Broadly speaking, APS employees make public comment in two capacities:

official—that is, for purposes connected with their APS employment
unofficial, including:
1. where an employee is a subject matter expert independent of their APS role and makes comment in that capacity
2. in a private capacity.

Making public comment in an official capacity

6.2.5 Some APS employees, as part of their official duties, provide comment to the media and others in the community about agency activities and government programs. Section 4: Managing information describes the legal and regulatory framework that governs the disclosure and use of official information when making public comment in an official capacity.

Making public comment in an unofficial capacity

6.2.6 APS employees may generally make public comment in an unofficial capacity, so long as the comment is lawful and the employee makes it clear they are expressing their own views.

6.2.7 When employees make public comment in an unofficial capacity, it is not appropriate for them to make comment that is, or could be reasonably perceived to be:

being made on behalf of their agency or the Government, rather than an expression of a personal view
compromising the employee's capacity to fulfil their duties in an impartial manner—this applies particularly where comment is made about policies and programs of the employee's agency
so harsh or extreme in its criticism of the Government, a Member of Parliament from any political party, or their respective policies, that the employee is no longer able to work professionally, efficiently or impartially
prejudicial to the integrity or good reputation of the employee's agency or the APS
so strong in its criticism of an agency's administration that it could seriously disrupt the workplace—APS employees are encouraged instead to resolve concerns by informal discussion with a manager or by using internal dispute resolution mechanisms
a gratuitous personal attack that is connected with their employment
compromising public confidence in their agency or the APS.

6.2.8 At all times, APS employees are bound by the requirements set out in regulation 2.1 of the Public Service Regulations 1999 concerning the disclosure of information.

6.2.9 In broad terms, regulation 2.1 provides that an employee must not disclose information, without authority, which is obtained or generated in connection with APS employment if:.

that information is communicated in confidence, or
it is reasonably foreseeable that the disclosure of the information could be prejudicial to the effective working of government.

6.2.10 For further information about regulation 2.1, see Section 4: Managing information.

Making unofficial public comment in a professional capacity

6.2.11 Some employees are subject matter experts and might seek to make comment in that capacity.

6.2.12 In such cases, it is important for the employee to notify their manager of any comment they propose to make in their 'expert' role that might reasonably reflect on their agency or their APS employment. This would need to be considered in light of the agency's policies and the APS Values, Employment Principles and the Code.

6.2.13 Agency heads and employees need to manage situations where the relationship between the employee's professional interests and their APS employment may create ambiguity about the capacity in which the employee's comments are being made. An agency head may direct the employee not to comment where necessary, provided that such a direction is lawful and is reasonable in all the circumstances.

Agency policies

6.2.14 Agencies are encouraged to develop their own policies setting out their expectations of their employees when making public comment in a private or unofficial capacity. A template that agencies may wish to adapt for this purpose is available on the Australian Public Service Commission's website.

6.3 Providing information to parliamentary committees of inquiry and Royal Commissions in a personal capacity

6.3.1 An APS employee who makes a submission to, or appears as a witness before a parliamentary committee of inquiry or a Royal Commission should have regard to the Government Guidelines for Official Witnesses Before Parliamentary Committees and Related Matters (the Guidelines for Official Witnesses).

6.3.2 APS employee may also make submissions to a parliamentary committee of inquiry or a Royal Commission in a personal capacity. An employee appearing before a committee in a personal capacity should make it clear to the committee that their appearance is not in an official capacity. The employee must not communicate information in a way that implies their personal views are those of the agency, such as by using official letterhead or a signature block that identifies the employee's place of work. It is particularly important for senior employees to give careful consideration to the impact of any comment they might make. The Guidelines for Official Witnesses note that heads of agencies and other very senior officers need to consider carefully whether, in particular cases, it is practicable for them to claim to appear in a 'personal' rather than an 'official' capacity, particularly if they are likely to be asked to comment on matters which fall within, or impinge on, their area of responsibility.

6.3.3 Before submitting information in a personal capacity, employees should be aware of the legislation that restricts the disclosure and use of official information. See Section 4: Managing information. The restrictions may provide grounds for the employee not to disclose certain information.

6.4 Participating in political activities

6.4.1 APS employees may participate in political activities as part of normal community affairs. They may also join, or hold office in, political parties.

6.4.2 Public participation in political activities may raise perceptions of conflict of interest or partiality and should be considered carefully having regard to an employee's role and duties. Participation would generally not be appropriate where an employee's duties are directly concerned with advising on or directing the implementation or administration of government policy on those issues. See Section 5: Conflict of interest.

6.4.3 Commonwealth anti-discrimination legislation prohibits discrimination against a person on the ground of political opinion. The legislation generally permits exemptions where action that might otherwise amount to discrimination is deemed essential to meet the requirements of the job. Such an exemption applies to employees of the Australian Electoral Commission.

Wearing or displaying political material while working

6.4.4 Wearing or displaying political material by an employee is generally inappropriate. It may give the impression that the agency endorses the political material. In some circumstances, it may create doubts in the minds of clients as to whether their queries or applications will be handled impartially.

Political campaigning and fundraising

6.4.5 Some employees, as private citizens, choose to campaign for candidates for political office. The role they play may range from handing out how-to-vote cards on election day to activities with a higher profile.

6.4.6 If an APS employee has a significant role in a political campaign, there is potential for a conflict of interest between taking a position on issues and impartially performing their official duties. The employee should discuss such potential conflicts with their agency. Ways of resolving such conflicts might include the employee taking leave, rearranging existing duties, transferring to other duties, or agreeing to take a less significant role in the political campaign.

6.4.7 If an APS employee is involved in political campaigning, they should make it clear they are not undertaking these activities as part of their official duties. For example, they should not wear anything that identifies them as an APS employee at party political meetings. APS employees must not use government resources including email, telephones, photocopiers and facsimile machines for any political activity.

6.4.8 An APS employee may apply to take leave without pay, annual/recreation or long service leave to assist with an election campaign.

6.5 Standing for Parliament

6.5.1 APS employees must resign before nominating as a candidate for the Senate or House of Representatives. The election of a person who did not resign from the APS before nominating for election to the Federal Parliament would be held invalid.

6.5.2 An APS employee who resigns to contest an election to the Senate or House of Representatives has the right to be engaged again in the APS as long as:

they resigned no more than six months before nominations closed, and
the application to be re-engaged was made within two months of the election being declared.

6.6 Participating in state or local government activities

6.6.1 APS employees may hold an office in local government organisations. However, agency policies or practices concerning outside employment may apply, particularly if participation in local government would adversely affect the capacity of the employee to carry out their duties. It is not necessary to resign to stand for election to a local government body.

6.6.2 APS employees should take care when considering, or commenting on, political or social issues related to their local government role, to ensure it does not conflict with their official duties.

6.6.3 APS employees intending to stand for election to State Parliament, or the Northern Territory or Australian Capital Territory legislative assemblies, should seek legal advice about any legislative provisions that require them to resign from the APS. [18]

6.7 Participating in union activities

6.7.1 APS employees are generally subject to the same workplace relations arrangements as the wider community. This is recognised in section 8 of the PS Act. Employees are free to choose whether or not to be a union member. No restriction applies under the PS Act about which union they may join, or the level at which they participate in union activities.

6.7.2 APS employees taking part in union activities, for example as officers or delegates of a union, must uphold the APS Values and Employment Principles and comply with the Code, including when making public comment.

Agency policies and procedures

Agencies may wish to develop policies, guidance, or training to help their employees uphold the APS Values and the integrity and good reputation of their agency and the APS, including when making public comment in an unofficial capacity. For example, agencies may wish to provide guidance on:
1. how to communicate appropriately in online forums, and how to evaluate whether a comment an employee proposes to make online is appropriate in a given set of circumstances
2. how to avoid potential perceptions of partiality when participating in political activities
3. appropriate use of ICT resources in the workplace, including appropriate use of work email and personal technology—such as smartphones—in work time. See Section 7: Using Commonwealth resources.
Agencies are encouraged to ensure their managers become familiar with agency guidance on making public comment, and support them in facilitating discussions with their staff about what may be reasonable comment in a given set of circumstances. Case studies are a useful way of encouraging discussion, and the Australian Public Service Commission's REFLECT decision-making model is a helpful tool in guiding these discussions.

Footnotes

[18] For Australian Capital Territory elections, see for example sections 103 and 104 of the Electoral Act 1992.