An impartial summary of the new APSC Guidance on the Personal behaviour of APS employees on social media

The Australian Public Service Commission (APSC) has published revised guidance on the use of social media by Australian Government public servants.

This comes just over a year after the High Court found that anonymous tweets can be a breach of the Australian Public Service’s Code of Conduct (Comcare v Banerji [2019] HCA 23). In that case, Ms Banerji tweeted over 9,000 tweets under an anonymous handle, many of which were critical of her employer, the (then) Department of Immigration. The High Court found her resulting termination valid.

That highly publicised case sent waves through the APS, and the APSC’s social media guidance (last updated in August 2017) was subject to much criticism.

What do you need to know?

The new guidance addresses similar themes to the one it replaces, importantly highlighting the obligations on APS employees set out in the Public Service Act 1999, being the APS Values, Employment Principles and the Code of Conduct.

A central issue to the Banjeri case, being her use of an anonymous handle, is now prominently dealt with under ‘Anonymity, aliases and disclaimers’:

       “If you are posting anonymously, you should assume that at some point your identity and the nature of your employment may be revealed.”

There is also a warning on disclaimers, commonly used in an attempt to distinguish a person’s views as a private citizen from their views as an employee:

        “a disclaimer isn’t enough to eliminate all the risks—public confidence can still be damaged by an employee’s behaviour even if the employee has stated that they’re acting in a private capacity.”

As before, the Guidance identifies risk factors, however these have been reframed around the key topics of seniority, connection to work, expression.

Seniority – The Guidance does not expressly discuss levels of employment (instead leaving those details to the supporting materials), instead relying on the general statement that “the more senior an employee, the greater the risk of their online behaviour affecting public confidence in the APS.” Essentially, the more senior you are, the more likely your knowledge is specialised and your comments carry more weight. That does not let junior officers off the hook, as all the obligations apply to all employees.

Connection to work – Put simply, posting a cute photo of your dog shouldn’t get you in trouble, but turning that same photo of your dog into a meme ridiculing a serving Minister will be of greater concern:

         “when considering whether to comment on these issues, we should remember that the closer the topic is to our work, our agency, or our Minister, the greater the risk it can pose to public confidence in our agency or the APS”

Expression – This is the most nebulous risk factor, where behaviour that is seemingly entirely unrelated to an employee’s role could raise questions about their impartiality or integrity. An example provided by Guidance is when “an employee’s derogatory comments about a particular culture may raise questions about their capacity to serve the diverse Australian community.” Importantly though, effusive praise of a policy may equally be seen to cast doubt on your impartiality.

Liking a post

The Guidance also seeks to further untangle the web of ‘liking, following, friending, and tagging’, and how such actions are construed. While following and friending is seen as low risk, it is a person’s level of engagement with social media content that carries higher risk. Even being tagged in a highly politicised post by another person can be interpreted as an endorsement, and the Guidelines suggests ‘untagging’ yourself. This does involve conscious management of your social media profiles, especially if you have many friends or followers on social media. For example, you could ensure you are notified when you are tagged in a post.

Supporting the Guidance is a series of additional materials including tips for agencies and employees, a factsheet and case study.

The Case study applies the key risk topics of seniority, connection to work, expression to a scenario and in many ways helps make sense of the Guidance.

For anyone in or looking to enter the APS, the Guidance is a must read.

Further, although not referred to in the Guidance, Policy 12 of the Australian Government’s Protective Security Policy Framework includes a ‘Digital footprint check’ as part of a person’s suitability to hold a security clearance. With many agencies requiring staff to hold security clearances, it is prudent to ensure your social media accounts are managed.

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