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49 Fed. L. Rev. 3 (2021)

handle is hein.journals/fedlr49 and id is 1 raw text is: Australian National In Focus: The Implied Freedom of Political Communication University Federal Law Review 2021, Vol. 49(1) 3-39 Public Servants and the Im plied ©The Author(s) 2021 Article reuse guidelines: Freedom of Political s bacom/journakpermision; journals.sagepub.com/home/fir Communication AG OSAGE Anthony Davidson Gray* Abstract The High Court of Australia recently overturned a tribunal decision in favour of a public servant who was dismissed after sending tweets critical of various politicians and government policies. All members of the Court found the relevant provisions were valid and did not infringe the implied freedom of political communication. This article first discusses development of freedom of speech at common law, through development in ideas about governance from a Hobbesian tradition to a Lockean model of representative government. Notions of representative government underpinned earlier High Court decisions on freedom of political communication, reflecting values such as the sovereignty of the people, accountability and informed decisions at election time. The article then considers restrictions on the ability of public servants to contribute to public debate in that light. Scholars and courts elsewhere have recognised the important contribution public servants can make to representative democracy. The recent decision pays insufficient interest to such contributions and is too willing to accept government arguments as to the need to suppress opinion by public servants in the name of an apolitical and independent public service, without considering counter arguments in terms of democracy, and without sufficient evidence of actual or likely interference with government functions. The proportionality analysis undertaken by the court was inadequate in its failure to do so. Whilst the freedom of communication of public servants is not absolute, restrictions must be narrowly confined and fully justified. Neither test was satisfied in this case. I Introduction (T)he scrutinised, as a class, always want to do their work on their own terms. Their lives are much easier if they never have to explain why taxpayer money gets wasted, they want to spy on citizens, or people are locked up without cause. Ignorance has never been a solid basis for citizenship or a method to get the best out of elected governments.1 1. 'Those Who Control Flow of Information Not Above Law', The Australian, 22 October 2019, 13 (editorial) (Sydney, Australia). * University of Southern Queensland, Queensland, Australia. The author may be contacted at anthony.gray@usq.edu.au.

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