A volunteer with Victoria’s Country Fire Authority (the CFA) was recently:
… made aware that the CFA, intend to implement new social media policy. The CFA have released a draft copy in order to gain feedback on the policy prior to implementing it.
The background to this policy and a link to it can be found here: https://www.vfbv.com.au/index.php/component/k2/item/630-draft-business-rule-traditional-social-and-digital-media
The policy appears to be very broad. It appears to make (for example) circumstances where I disagree with the Victorian Government’s stance on presumptive cancer Law on social media, a potential breach of this policy (subject to someone’s interpretation or feelings on the matter) if somewhere on my social media account, there is a picture of me in my firefighting uniform.
It also makes being part of a group on social media a breach of the policy where the group may be considered offensive.
My question is: Does this policy breach the Charter of Human Rights and Responsibilities Act 2006 (Vic) specifically Sections 15 and 16 which pertain to freedom of opinion, expression and association, or any other legislation you are aware of?
This question is impossible to answer in the abstract. The policy won’t breach the Charter, even if examples of its application might. The answer to the question will therefore need specific facts to answer ‘does this attempt to apply the policy breach the charter?’ We can however identify some issues.
Victoria is one of the few jurisdictions to have a statement of basic human rights (another is the ACT see Human Rights Act 2004 (ACT)). Sections 15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) say:
Freedom of expression
(1) Every person has the right to hold an opinion without interference.
(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether—
(a) orally; or
(b) in writing; or
(c) in print; or
(d) by way of art; or
(e) in another medium chosen by him or her.
(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary—
(a) to respect the rights and reputation of other persons; or
(b) for the protection of national security, public order, public health or public morality.
Peaceful assembly and freedom of association
(1) Every person has the right of peaceful assembly.
(2) Every person has the right to freedom of association with others, including the right to form and join trade unions.
Apart from this statutory right, the High Court of Australia has found that the Australian Constitution contains an implied right of freedom of political communication. A law that burdens ‘freedom of communication about government or political matters, either in its terms, operation or effect’ will be invalid unless the law is ‘reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government …’ (Lange v Australian Broadcasting Corporation (1997) 145 ALR 96, 112). The CFA policy is not legislation but the High Court’s test is still worth bearing in mind.
What is notable in both s 15 and the decision in Lange, is that the right to freedom of expression is not unlimited. A CFA volunteer who disagrees with government policy may be better placed than non-members to advocate for a change in policy. To curtail their right to engage in political debate on the value of a policy and to try to bring pressure to bear on government or to persuade elector’s wold appear to be a breach of the Lange principal. On the other hand, to disseminate information that ‘fails to respect the rights and reputation of other persons’ (which would include the CFA itself) may not be protected by s 15 of the Victorian Act. Further any restriction that is ‘reasonably appropriate and adapted to serve a legitimate end’ of the CFA will not breach the Lange principle.
But that’s as far as I can take it. The Draft Business Rule – Traditional Social and Digital Media appears to be available only to members of the CFA and who can sign into the CFA website. As I’m not a member of the CFA I don’t have access credentials. In the absence of the draft policy there is nothing useful I can say on its terms.
Not surprisingly, having written the above, I was sent a copy of the draft rule. It seems to me that the draft business rule is very much limited to operational issues such as taking photos and making information available about CFA operations. It is not unreasonable to require CFA members when posting in that capacity to ():
a) Be polite, courteous and respectful
b) Respect the privacy and dignity of individuals and organisations
c) Consider how comments and remarks may be taken out of context.
It also seems reasonable, to ask CFA members not to ‘Discuss or disclose CFA information that is not publicly available, whether confidential or not’ but that has to be subject to limitations. Discussing documents, such as the Draft Policy itself would seem to be part of the political process. It is part of ‘the constitutionally prescribed system of representative and responsible government’ to engage in debate with events that occur within organisations and that can’t or shouldn’t be stifled by attempts to restrict public access. The very act of ‘disclosing CFA information that is not publicly available’ may be an important part of that political process.
There is legal protection for whistleblowers (see https://www.premier.vic.gov.au/greater-protection-for-whistleblowers/) but that would apply to appropriate protected disclosures, not putting evidence of corruption on social media. But short of that one only has to consider recent issues involving the CFA including drafts of the various enterprise agreements that were appropriately aired in public as part of the political process. I would agree that restraining that sort of conduct may be a breach of both the Victorian Act and the Lange principle but it is not axiomatic that the draft rule does that. This is the context where one can’t answer the question unless and until an attempt is made to use the policy to curtail legitimate political expression.
The policy doesn’t say that a member can’t comment on political or policy issues such as ‘the Victorian Government’s stance on presumptive cancer Law’. If one posted a letter or social media post and said ‘I’m a member of the CFA and in that capacity my experience is … and the need for reform is …’ that can be done in a way that is ‘polite, courteous and respectful’ and is not ‘offensive, objectionable or illegal’ ().
One paragraph that may cause objection (as I see it) is . It says:
A CFA staff or volunteer’s association with some online-groups, pages or individuals could be seen as an endorsement of their views and by extension that of CFA. Association with individuals, activities or social media pages and groups that may damage the reputation of CFA should be avoided.
One could argue that prima facie that’s contrary to the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 16 but I don’t think it is. Consider a situation where a person has joined a neo-Nazi group advocating hatred and violence against particular groups in the community based on their religion or gender. Having a photo of a member in their CFA turn-out kit would certainly be contrary to CFA values and I don’t think prohibiting that action would be an unreasonable limitation. Taking action because the person is seen to be a member of Volunteer Fire Brigades Victoria, would be.
As noted this is the sort of question that can’t be answered in the abstract. The policy, if adopted, does not prohibit legitimate political engagement. A person who is commenting on a matter such as government policy may want to point out that they are a member of the CFA because that gives greater weight to their views – ‘I’m commenting on some policy relating to fire and I have relevant experience …’ If they are engaging in legitimate political debate then I would suggest that a court would find that the CFA policy can’t be used to restrain that activity.
In the absence of any specific example however, as I read the document, it doesn’t on its face prohibit legitimate political discussion but it does point out that if you are known as a member of the CFA you should behave in a way that is ‘polite, courteous and respectful’ and does reflect on the CFA. If your political response is to call for violence, apart from being criminal it may breach this policy. If your response is to say people should vote for one party in favour of another as the policies of that party will be better for CFA volunteers that would be a different matter.
It is my view that the draft policy does not, on its face ‘breach the Charter of Human Rights and Responsibilities Act 2006 (Vic) specifically Sections 15 and 16’ but there is no doubt attempts to use it could. It would be a matter of waiting to see how it is applied to answer that question in specific circumstances.
The view from the United States
Social media commentary appears to get US firefighters into trouble all the time. There a firefighter’s rights to make public comment are confirmed by the US Constitution. The first amendment to the US Constitution says:
Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
But even so fire departments have the right to restrict public comment by firefighters and have taken disciplinary action with respect to offensive and other posts. For details of many such cases, see the posts on Curt Varone’s Fire Law Blog- http://www.firelawblog.com/?s=social+media