Case of the twittering immigration employee

In the US it has long been held that employment contracts in the private sphere can make public criticism of the employer a sackable offence.

The critical question is what happens when the employer is the government – does a government employee cease to be a citizen and become only an employee.

Moreover, what if the employer is a private company engaged in government work, such as the large-scale contractors who run the immigration gulag?

In the US, until the 1960s, government employees were generally treated like any others – criticise your employer and you are out.

But since then, the First Amendment has been invoked to give some protection to government employees.

The most recent cases say that the government can restrict the speech of employees when they are speaking as part of their job. Well, obviously. But off-duty, government employees are still citizens and can speak on matters of public concern subject only to restrictions that are necessary for the government "to operate efficiently and effectively".

That seems like a pretty good test to me – balancing the rights of public servants against the public interest in the efficient and effective operation of government.

It is unlikely, however, to be adopted by Australian courts in interpreting our Constitution. Even so, there is still a grey area as to what if any free speech a public servant has in Australia or the extent to which the government can muzzle its employees.

The Public Service Act formally adopts into law the Australian Public Service Values and the APS Employment principles and says that public servants "must AT ALL TIMES behave in a way that upholds the integrity and good reputation of the employee's agency and the APS".

So being off duty is no protection.

Is such a sweeping restriction inconsistent with the operation of the constitutional system of government?

Perhaps it is in a couple of ways. What if an agency is acting so badly that it has no good reputation to uphold, or that it does not deserve a good reputation? What if the only way for such an agency to get back its integrity is for its malfeasance to be exposed?