13 August 2013

Sandi Logan ends free expression in the Public Service

| johnboy
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The Age has the intriguing story of how Michaela Banerji was run out of the public service for differing with the mighty warlord of Immigration Public Affairs Sandi Logan.

The Federal Court has just ruled this is totally OK.

The upshot is if you’re in the public service and want to have a social media profile of your own you better keep it very quiet.

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Thank you to all contributors to this very important topic that has us on a slippery slope. Just to clarify some errors: While in the beginning, my response was that unless and until there was confirmation that the account was mine, I would have no comment, eventually worn down by the daily absurdity of it all, admitted that the account was mine during a ‘pleasant’ discussion with HR. I did not ever actually criticise the department but referred to its obligations under the refugee convention as a conscientious objector to detention and offshore processing. The Court documents show that I did not seek an ‘unfettered’ right, but submitted that the burden created by the PS Act, as interpreted by the decision-maker, was neither reasonable, adapted nor to a legitimate end. This aspect is not evident on a reading of the judgment because that evidence was neither referred to nor considered. This is a point of appeal. The real question is whether, in this country, we want to create a class of persons, public servants, who have no right to express a political opinion at all times. There is no such other class, is there?

ChrisinTurner5:12 pm 16 Aug 13

I may be out of date, but back in 1960 I had to sign that I would not disclose anything I learnt at work to anyone. Did Michaela breach this requirement?

Masquara said :

Grog Gamut’s blog got an entirely different response, remember?

Grog, from memory, never crititised his department nor the Commonwealth? Grog was outed by the media, of which he had been extremely critical of their 2010 election coverage.

If only weighty legal matters like these could be decided by discussions on Riotact, instead of paying silks thousands of dollars per hour…

dtc said :

thatsnotme said :

johnboy said :

well no.

the high court had ruled there was an implied right of free speech.

justice neville appears to have narrowed that in this ruling.

*Judge Neville.

Justice Neville is correct.

In court – ‘your honour’
When the judge is not in court and you are referring to him/her – ‘justice’
When addressing the judge personally out of court (at a meeting or in a letter): ‘judge’

Nothing to do with the topic. But if you are seeking to correct someone, then, you know, correct them proper.

No, I’m sorry you’re incorrect. The Federal Magistrates Court recently changed its name to the Federal Circuit Court. Previously, his title was Federal Magistrate Neville. As part of the change in name of the Court, the judicial members were given the title ‘Judge’. At the same time, judicial officers of the Family Court of Australia were given the title ‘Justice’. In this case, there is a very clear distinction between the terms Judge and Justice.

Believe me, my correction was not made without having full knowledge of the protocols in this instance.

bundah said :

johnboy said :

There had been an interpretation of the early high court ruling, used by learned counsel, that you could tell your employer to but out of your private writings.

That interpretation’s taken a bruising here.

If Neville’s decision is not in line with the previous High Court ruling and is therefore erroneous one would expect that the decision would be overturned in an appeal.

I don’t think it’s that black and white. The new decision appears to make some new law, and may either be consistent or inconsistent with the High Court’s previous findings depending on your point of view – it is arguable. I don’t believe it will be appealed though, because in this case it appears to be mooted by the other findings.

johnboy said :

well no.

the high court had ruled there was an implied right of free speech.

justice neville appears to have narrowed that in this ruling.

Nope, implied right of political communication, inferred from the franchise granted by the constitution. Much narrower than free speech and much more purposive in nature.

thatsnotme said :

johnboy said :

well no.

the high court had ruled there was an implied right of free speech.

justice neville appears to have narrowed that in this ruling.

*Judge Neville.

Justice Neville is correct.

In court – ‘your honour’
When the judge is not in court and you are referring to him/her – ‘justice’
When addressing the judge personally out of court (at a meeting or in a letter): ‘judge’

Nothing to do with the topic. But if you are seeking to correct someone, then, you know, correct them proper.

Masquara said :

Savanna100 said :

There’s no real point me going over the circumstances of my APS departure, suffice it to say that, Given this awesome opportunity, I did my sums, adjusted my lifestyle and now can retire and do things I really enjoy. I’ll think of you slaving away at your desk Pitchka while I’m having a Gin and Tonic in my country garden, having to obey no one or endlessly re-write everything as it goes up the line, as we all had to. I’m out, you’re still in (and probably for a while yet) enjoy 🙂

Hmmm, well, your capitalising “gin and tonic” would indicate to me that your written work might have been part of the reason your bosses got you out … .

Well, a day later, check the headings in todays RiotACT offerings, there is a whole new thread with the words “Gin and Tonic” in capitals….seems like when you use a noun(s) its ok to use capitals. If you think that “writing for the public service” is the pinnacle of your life, go for it.

errr. more to the point we often (but not always) leave headlines as they were submitted by the reader.

johnboy said :

There had been an interpretation of the early high court ruling, used by learned counsel, that you could tell your employer to but out of your private writings.

That interpretation’s taken a bruising here.

If Neville’s decision is not in line with the previous High Court ruling and is therefore erroneous one would expect that the decision would be overturned in an appeal.

johnboy said :

well no.

the high court had ruled there was an implied right of free speech.

justice neville appears to have narrowed that in this ruling.

*Judge Neville.

And has he actually narrowed the definition? He does not have the power to change past rulings the High Court has made. According to the story, he has relied on previous rulings from the High Court in making his Judgment. If his interpretation of those rulings was wrong, I’d expect an appeal would be made, and the Federal Court would become involved.

There had been an interpretation of the early high court ruling, used by learned counsel, that you could tell your employer to but out of your private writings.

That interpretation’s taken a bruising here.

staringclown said :

I don’t remember where I signed up to forego all of my rights to free expression outside of work hours by joining the APS.

You don’t have a right to free expression. This is not enshrined in Australian law. It’s assumed … because America has it, and we’re kinda like America-lite.

well no.

the high court had ruled there was an implied right of free speech.

justice neville appears to have narrowed that in this ruling.

staringclown10:09 pm 13 Aug 13

I don’t remember where I signed up to forego all of my rights to free expression outside of work hours by joining the APS. As far as I understood it I am obliged to implement government policy during work hours apolitically. This I happily accept and perform. If tacit endorsement of the current clowns or the clowns to be is a requirement then I’m done with this job. I would wear a sacking by either for criticism as a badge of honour. I have no intention of stopping.

Masquara said :

Grog Gamut’s blog got an entirely different response, remember?

I thought he did get into trouble. But his work was more thoughtful to be frank. What Banerki did was send among other things, abusive personal messages to the department head. If you sent abusive emails to your boss with your real name, you wouldn’t be surprised about getting that sack would you?

Grog Gamut’s blog got an entirely different response, remember?

troll-sniffer8:22 pm 13 Aug 13

In a just and fair situation, where the offending department was self-confident and not worried about its rather tenuous hold on reputation, the anonymous tweeter would be given the benefit of just that, anonymity. As long as he or she did not divulge his or her identity through exposure or obvious knowledge, the anonymous nature of the tweeting would and should be dealt with by rebuttal or just plain old ignoring. But the department in question and its splendid mouthpiece Sandi ‘gravel rash’ Logan have always been the most brutally ignorant cloakers of procedure in hush hush blanketing the Australian nation has ever seen in peace time, so it’s not surprising they would see any crticism, even anonymously, as being untenable.

Anyone stepping out of line and expressing disdain with the hierarchy will be shown no mercy

http://www.youtube.com/watch?v=pLFIxt2cK_0

The upshot is if you’re in the public service and want to have a social media profile of your own you better keep it very quiet.

Exactly or BB will bring out the ‘rat cage’ and really show you who’s boss..

I don’t know anything about the merits of this specific case, but Justice Neville’s narrowing of the implied right to political expression that the High Court found exists in the constitution is of far more wide interest and applicability.

It is a pity that the case is otherwise weak (and so unlikely to be appealed), because this is really a ruling that needs to be tested in higher courts.

Blen_Carmichael6:16 pm 13 Aug 13

c_c™ said :

I have a suspicion she could have avoided a lot of trouble had she not lied to her employer, point blank denying the Tweets were hers. There are few employers who will keep you around if you lie, while there are many who would rather work through an issue with someone who is honest.

On an aside, I’m kind of surprised that an admitted lawyer would stuff up a court action like this. There was nothing to injunct.

The article I read stated she had a law degree but it’s not clear whether she’s an admitted lawyer. But in any event, there’s an old saying about the lawyer who represents him/herself having a fool for a client.

Mothy said :

Running on what this article … the “free speech” argument is interesting, particularly the acknowledgement from Justice Neville that we enjoy no “unfettered implied right (or freedom) of political expression”, it is not the only show at this particular circus.

Also interesting is the comment that: ” bureaucrats must avoid making ”harsh or extreme” criticisms of politicians or their policies”.

In another world, this would lead the CPSU to think twice about its planned Cuts Hurt campaign, or even its protests against job losses under Labor’s latest budget update.

Point of order JB. This order was made by the Federal Circuit Court (nee Federal Magistrates Court), not the Federal Court. I believe if an appeal were to be made, it would go to the Federal Court next.

I have a suspicion she could have avoided a lot of trouble had she not lied to her employer, point blank denying the Tweets were hers. There are few employers who will keep you around if you lie, while there are many who would rather work through an issue with someone who is honest.

On an aside, I’m kind of surprised that an admitted lawyer would stuff up a court action like this. There was nothing to injunct.

devils_advocate said :

Masquara said :

Savanna100 said :

1) both of you spent substantial years in the APS but were not SES-level
2) at least one of you appears to have been assessed to a large degree on written work rather than managing the output of a team

You’re both doing it wrong.

I completely agree. I have managed up to 12 staff in the past and it is much more interesting than being an underling. As for being SES, if I was in my 20s or 30s I may have been ambitious but, at in my late 50s, I’m more interested in being happy rather than making the Minister’s office happy.

That’s quite ok Masquara, I’m the one with the great life now. I’d planned to go early next year anyway and the VR gave me the same money as if I’d stayed till my original “retirement” date so I’m very happy. It was my first job since 1988 where you didn’t need mandatory qualifications, including post grad (which I have)…I couldn’t believe someone with HSC (or less) could be paid at the same level as someone with extensive qualifications….I doubt that happens in other public sectors around the world.

devils_advocate3:10 pm 13 Aug 13

Masquara said :

Savanna100 said :

There’s no real point me going over the circumstances of my APS departure, suffice it to say that, Given this awesome opportunity, I did my sums, adjusted my lifestyle and now can retire and do things I really enjoy. I’ll think of you slaving away at your desk Pitchka while I’m having a Gin and Tonic in my country garden, having to obey no one or endlessly re-write everything as it goes up the line, as we all had to. I’m out, you’re still in (and probably for a while yet) enjoy 🙂

Hmmm, well, your capitalising “gin and tonic” would indicate to me that your written work might have been part of the reason your bosses got you out … and the path out of the APS that you describe is textbook “get the useless one out by making her think it’s good for her, not us, and that we’re sorry to see her go ha ha”. Sorry, Savannah, wouldn’t have posted this reality check for you, if you hadn’t been skiting in your post.

1) both of you spent substantial years in the APS but were not SES-level
2) at least one of you appears to have been assessed to a large degree on written work rather than managing the output of a team

You’re both doing it wrong.

Savanna100 said :

There’s no real point me going over the circumstances of my APS departure, suffice it to say that, Given this awesome opportunity, I did my sums, adjusted my lifestyle and now can retire and do things I really enjoy. I’ll think of you slaving away at your desk Pitchka while I’m having a Gin and Tonic in my country garden, having to obey no one or endlessly re-write everything as it goes up the line, as we all had to. I’m out, you’re still in (and probably for a while yet) enjoy 🙂

Hmmm, well, your capitalising “gin and tonic” would indicate to me that your written work might have been part of the reason your bosses got you out … and the path out of the APS that you describe is textbook “get the useless one out by making her think it’s good for her, not us, and that we’re sorry to see her go ha ha”. Sorry, Savannah, wouldn’t have posted this reality check for you, if you hadn’t been skiting in your post.

I had just completed a great performance assessment but staff numbers in my department needed to be reduced and I was lucky that one of my SES and I got along brilliantly…

Wow. I’m not even sure my SES knows my name.

devils_advocate2:44 pm 13 Aug 13

I am frankly astounded that someone in the public service had not only the technical ability, but the work ethic, to conduct this kind of investigation and be able to form a view about who was behind an anonymous twitter account. I suppose spite and fear can be a powerful motivator.

There’s no real point me going over the circumstances of my APS departure, suffice it to say that, Given this awesome opportunity, I did my sums, adjusted my lifestyle and now can retire and do things I really enjoy. I’ll think of you slaving away at your desk Pitchka while I’m having a Gin and Tonic in my country garden, having to obey no one or endlessly re-write everything as it goes up the line, as we all had to. I’m out, you’re still in (and probably for a while yet) enjoy 🙂

Pitchka said :

Savanna100 said :

Glad I got handed a VR without asking for it…

This still happens, generally its those underperforming, or are hated by their peers who are pushed out in this manner… I dare say the APS is glad you havent been back either.

Don’t know if that is particularly fair. I’ve worked with under performers who are shown no such benefit, they’re just kind of ignored in the workplace; given no work because they can’t be trusted but still given a pay packet every week. I’ve even worked with other underperformers who have been promoted well and truly above their capability. But having lunch with the EL (and occasionally the SES) boss every day didn’t have anything to do with it at all I’m sure.

Toxic is not an inaccurate description.

Pitchka said :

Savanna100 said :

Glad I got handed a VR without asking for it…

This still happens, generally its those underperforming, or are hated by their peers who are pushed out in this manner… I dare say the APS is glad you havent been back either.

I had just completed a great performance assessment but staff numbers in my department needed to be reduced and I was lucky that one of my SES and I got along brilliantly…she knew I was bored out of my mind and suggested it rather than me just quitting. The APS was lucky to have someone as experienced as me in the field my department worked in…its their loss, I assure you.

Savanna100 said :

Glad I got handed a VR without asking for it…

This still happens, generally its those underperforming, or are hated by their peers who are pushed out in this manner… I dare say the APS is glad you havent been back either.

Masquara said :

Simple. Her colleagues didn’t like her and wanted her out of the team. Nothing to do with her social media activities. Don’t you know how the APS works?

Yes, for too many people, this is exactly how it works. I made some lovely friends in the APS but I also saw people victimised for no reason too.

The outrage should be (and should always have been) directed towards the outrageous APS Code of Conduct. When I joined the APS, I couldn’t believe that it was intended to cover your behaviour 24/7…they must be kidding. The CPSU should be seriously campaigning to restrict this nonsense to working hours. It was the poor woman’s after-hours tweets which has bought this on. Couple this with another article in todays SMH which talks about bullying in the APS being up 30% and you have a completely toxic workplace…glad I’m out, Glad I got handed a VR without asking for it…there is three years and 1 month I wont ever get back. Find something better to do with your one and only precious life !!!

The thing that stands out for me is the fact that the comments directly related to her own agency. I can’t see the same result occurring if she was commenting on another agency that she didn’t work for. It’s rather hard to think that taking anonymous pot shots at your higher-ups is a pure matter of political expression.

Simple. Her colleagues didn’t like her and wanted her out of the team. Nothing to do with her social media activities. Don’t you know how the APS works?

Mothy said :

Running on what this article stated as the facts of the case, the staff member in question was recommended for dismissal for TWO breeches of the APS Code of Conduct.

“breeches”

Sandi Logan must really wear the pants in the APS…

HiddenDragon12:31 pm 13 Aug 13

I would be interested to know whether Ms Banerji egregiously misused privileged information in her tweets, or whether she simply said things which any member of the public could have come up with, had they been prepared to put sufficient time and effort into it. If the latter is the case, this looks like a rather heavy-handed over-reaction, and leads me to wonder whether the tweets were used to get rid of someone who just didn’t “fit in”.

We’ll know they’re really serious when the PS ACT is amended to allow convicted dissidents to be shipped off to Manus Island.

Can’t help but think that social media would be in meltdown by now if this had happened under the Howard Government.

I think we’ve all come to know by now that opinions don’t count for crap in the public service, especially if yours happens to be at odds with your SES overlord or the newest teenager running the minister’s office.

Running on what this article stated as the facts of the case, the staff member in question was recommended for dismissal for TWO breeches of the APS Code of Conduct.

While the “free speech” argument is interesting, particularly the acknowledgement from Justice Neville that we enjoy no “unfettered implied right (or freedom) of political expression”, it is not the only show at this particular circus.

Holding down a second job could detract from one’s capacity to fulfill ones first job, and could be an item of concern, no?

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