Free speech, the public service and civilising behaviour

Before anyone screams "free speech", they should actually know what they are talking about.

Earlier this week the Department of Prime Minister and Cabinet released new social media protocols.

The protocols limit the capacity of public servants to make statements that are "harsh or extreme in their criticism of the government, government policies, a member of Parliament from another political party ... [and] a gratuitous personal attack that might reasonably be perceived to be connected with their employment", among others.

In response there have been cries that this code limits free speech. Yesterday Jenna Price wrote in Fairfax outlets that as "HenchCommissioner" I did not "leap in defence of our gentle, analytical and astute public servants".

Sigh. Since taking the office of Australian Human Rights Commissioner I have gleaned many new insights into the state of human rights in Australia. One of the most important insights is that many Australians seem to have no idea what human rights are, and many certainly do not understand what free speech is.

Price also said I "backed the reforms". This is factually inaccurate. It is not my place to endorse individual codes, but I have outlined that voluntary codes attached to employment conditions are not inconsistent with free speech.

Defending the universal human right of free speech is about the legal limits of speech. It is about when the law stops someone expressing their view. It is not about voluntary conditions we accept when we take employment. Conditions that are entered into through employment are not the same as the law.

All speech is legal, until it is made specifically illegal. But just because something is legal, it does not mean it is acceptable. For instance, it is legal to be homophobic, but it is not acceptable.

Codes of conduct play an enormously important role in filling the gap between what is technically legal, and civilising and normalising behaviour.

Voluntary codes associated with employment are one of the most important ways that we regulate the conduct of the individual without laws, and they are fundamentally a good thing.

Even the Australian Human Rights Commission, a body charged with defending free speech, has social media protocols for staff to preserve and protect the dignity of the institution.

Codes of conduct include requiring people to not act in a sexist, homophobic or racist way. If people do, and it is connected back to their employer, they can face disciplinary action, or be terminated.

At any time an individual no longer believes that they can abide by these standards they have the choice to terminate their employment.

Codes attached to employment in the private sector cannot limit free speech because they are voluntarily entered into as a requirement of employment.

Public service codes are not the same. They operate in a "grey space" because the government is the employer.

Excessive restrictions can fundamentally undermine a public servant's capacity to exercise their full democratic participation, but if they are too loose they can undermine the important perception of impartiality.

For instance, public servants are allowed to be members of a political party and participate in the democratic processes of the nation.

But they are not allowed to work for the Department of Health by day and moonlight as an anonymous journalist critical of the Department's work by night. Social media is fundamentally no different to any other platform. It is still public.

Similarly, it is not unreasonable that there is an expectation that public servants act in a respectful manner in the public domain if they want to remain employed. Even with the current protocols, public servants can make statements that are negative about government policy.

But there are justified limits to what an employer can reasonably accept when public comment crosses the line.

Imagine the justified outrage if a public servant was caught holding the "Ditch the Witch" sign at the Convoy of no Confidence protests, or "F--- Tony, F--- Democracy" at March in March.

Of course those individuals have every right to express those views, but it doesn't mean that the public service need continue to be associated with such vile conduct.

Some have argued that if the conduct is anonymous then it should be excluded from the code, but that is absurd. That is like arguing that the public service should not terminate someone's employment if they are involved in offences outside of work hours because they did it anonymously.

Voluntary codes of conduct attached to people's employment are consistent with free speech. They play a vital and important role in civilising public behaviour and establishing norms of respectful conduct.

They operate no differently in the public service, except they should be specific to an employee's area of work to ensure that they do not limit a public servant's capacity to engage in democratic processes.

Tim Wilson is Australia's Human Rights Commissioner.