To be an Australian Public Servant today means to have some of your basic human rights that other Australians enjoy stripped away from you. Two major human rights that are severely curtailed is the right to not be compulsorily subjected to psychiatric examinations and freedom of expression. On this basis, it appears that Australian Public Servants are apparently inferior to the rest of us.

Despite the Australian Public Service's legislative value of having 'the highest ethical standards', Australian Public Servants who complain about workplace bullying or are viewed as organisational threats to the status quo are being falsely labelled mentally unstable and forced by bureaucrats (not general practitioners) to see psychiatrists against their will under the Public Service Regulations.

Numerous psychiatrists are partaking in this abuse, despite the fact that the Institute of Australasian Psychiatrists' Code of Ethics states that 'it is unethical for a psychiatrist chosen by an employer to examine an employee who has been forced to attend' and the Medical Board's Code of Conduct provides that all medical examinations must be consensual.

Some 'hired gun' psychiatrists take the abuse even further by coming up with outrageous diagnoses, such as paranoid psychosis, after only one forty-minute session and doubtful evidence. Where Australian Public Servants are suffering psychological injuries resulting from bullying, the 'hired gun' psychiatrists may try to claim that the injury is 'pre-existing' rather than work-related. Indeed, there are some striking parallels between the abuse of psychiatry by the Australian Public Service and the use of punitive psychiatry against dissidents in the Soviet Union during the 1950s and 1960s.

These legislative powers need to be taken away from the Australian Public Service. Psychiatric abuse has been recognised as far back as 1994 when a Senate Committee conducted an inquiry into treatment of whistleblowers and described the use of forced psychiatric examinations as an 'insidious and vile weapon'. More recently, the Australian Human Rights Commission and the Community and Public Sector Union were made aware of these abuses, but they have said and done nothing. Furthermore, it appears that the Australian Public Service Commission and Comcare are condoning these abuses. Now the Federal Government is in the midst of a national workplace bullying inquiry, but given its current preoccupation with introducing a weak Code of Practice and nationalising a pragmatically unenforceable criminal law (Brodie's Law), the inquiry's outcome is also likely to be disappointing.

There is one powerful way to address the scourge of human rights abuses and workplace bullying in the Australian Public Service, and that is exposure through social media. Websites such as APSbullying.com, victimsofCSIRO.com and OZloop.com (created by ex-Australian Public Servants) are proving to be successes. However, at the start of this year, the Australian Public Service Commission severely inhibited such exercise of free expression by circulating a 'social media use' directive that all Australian Public Servants are not to make public comments that risk lowering or undermining the reputation of the Australian Public Service, even if such comments are made in an unofficial capacity and are the truth, fair comment or in the public interest.

Furthermore, if Australian Public Servants take legal action for infringement of their workplace or human rights and settle their cases out of court, they can be compelled by the Commonwealth to sign gagging clauses which can be as wide as prohibiting disparaging remarks against the whole of the Commonwealth and all of its past and current employees. Thus, current and former Australian Public Servants are being kept on a very short leash. The Australian Public Service's draconian approach to freedom of expression is akin to the approaches used in authoritarian states and raises constitutional questions.

Those who choose to serve the public should not be punished for doing so and microcosms of authoritarianism should not be tolerated in democratic societies. It is time for Australian Public Servants to be given equal rights to the rest of us.

The Australian Public Service (APS) Knows that Compulsory Psychiatric Referrals are Unlawful, Unethical and Abusive; So it is Now Time for a Class Action!

Earlier, APS Dignity wrote about the use and abuse of compulsory psychiatric referrals under the Public Service Regulations as a victimisation tool against whistleblowers (that is, any APS employee who makes a complaint about a potential breach of the APS Code of Conduct), and how the Australian Public Service Commission and Comcare were complicit in this victimisation (see Australian Public Servants Subjected to Soviet-Style Abuse).

The humiliation, provocation and cruelty that some APS hired-gun psychiatrists have subjected APS employees to defy belief - ranging from unjustified antagonism and aggression directed at employees to verballing employees to make 'confessions' that they are adulterous and suicidal. APS employees have been left tainted with dubious and career-damaging psychiatric diagnoses, based on questionable evidence or no evidence at all. Needless to say, these employees are left highly traumatised.

The use and abuse of compulsory psychiatric referrals has been around for decades in the Australian employment landscape, being first brought to prominence during the early 1990s by Whistleblowers Australia. Yet, unfortunately, the situation is still very much the same (if not worse), and Australian politicians, human rights groups and the mainstream media's interest has been noticeably lacking.

APS Dignity has been directly and indirectly in touch with many victims of compulsory psychiatric referrals and has been researching the legalities of the referrals, with the ultimate goal of helping victims to launch a class action against the Commonwealth of Australia.

There are various laws and codes that APS agencies may be breaching in directing or supporting (whether explicitly or implicitly) compulsory psychiatric referrals, as listed below.

Regulations 29 to 31 of the Health Insurance Regulations 1975 specifically state that a valid referral to a specialist, such as a psychiatrist, must come from a referring practitioner (usually the treating general practitioner). There are no exceptions made to operate outside the scope of the Health Insurance Regulations 1975 when it comes to referrals to specialists.
Clause 6 of the Institute of Australasian Psychiatrists' Code of Ethics states that 'it is unethical for a psychiatrist chosen by an employer to examine an employee who has been forced to attend'. APS agencies are effectively forcing employees to attend examinations under the threats of discipline or financial penalty.
Section 10(1)(d) of the Public Service Act 1999 states that the APS 'has the highest ethical standards'. Given that the Institute of Australasian Psychiatrists' Code of Ethics makes it apparent that compulsory psychiatric referrals are unethical, then such referrals are inconsistent with the APS Values, which may be a breach of employment contract, and a breach of the specific torts of statutory duty and public misfeasance.
Section 16 of the Public Service Act 1999 states that whistleblowers reporting potential breaches of the APS Code of Conduct must not be victimised or discriminated against. Where compulsory psychiatric referrals are used as a victimisation or discrimination tool (which will usually be the case), then this may be a breach of employment contract, and a breach of the specific torts of statutory duty and public misfeasance.
Under defamation law, it is unlawful to communicate 'material', whether directly or by imputation, anything which has the effect or tendency of damaging the reputation of another by: exposing that person to ridicule; lowering that person's reputation in the eyes of members of the community; causing people to shun or avoid that person; or injure that person's professional reputation. Given that a psychiatric referral carries the imputation that an APS employee is mentally unstable, then unlawful defamation may have occurred.
Section 340 of the Fair Work Act 2009 states that adverse action must not be taken against an employee who has exercised, or proposed to exercise, a workplace right. Thus, where a compulsory psychiatric referral is used as a victimisation or discrimination tool against a whistleblower, this may amount to an unlawful adverse action.
Under section 15 of the Disability Discrimination Act 1992, it is unlawful to impute a mental disability on an employee. Given that a psychiatric referral carries the imputation that an APS employee is mentally unstable, then unlawful disability discrimination may have occurred.
When a compulsory psychiatric referral is used as a victimisation or discrimination tool which results in the employee suffering psychologically and emotionally, then this may be a breach of the specific torts of duty of care to provide a safe system of work and intentional infliction of mental harm and emotional distress.
Under section 5 of the Administrative Decisions (Judicial Review) Act 1977, it is unlawful to exercise a discretionary statutory power in bad faith or unreasonably, or in a way that constitutes an abuse of power. When a compulsory psychiatric referral is used as a victimisation or discrimination tool, then there may be a breach of these administrative principles.
Under Information Privacy Principles 7 and 8 of the Privacy Act 1988, APS agencies have an obligation to ensure employees' recorded personal information is accurate, complete and not misleading. Under Information Privacy Principle 11 of the Privacy Act 1988, APS agencies must seek consent before disclosing employees' personal information to a third party. Where an APS agency's briefing to a psychiatrist about an employee contains inaccurate, incomplete or misleading information, and an employee's personal information is disclosed without their consent, this may be a breach of the Privacy Act 1988.
Under Information Privacy Principles 1 to 3 of the Privacy Act 1988, APS agencies must not collect personal information unlawfully and unfairly, and must not intrude unreasonably on a person's personal affairs. The Privacy Commissioner has issued guidelines stating that Information Privacy Principles 1 to 3 may also be breached where personal information is collected by: asking a person many times for details; interviewers insulting or intimidating people; or asking for information in ways that might unnecessarily embarrass a person. Where a psychiatrist that is contracted by an APS agency asks unnecessary intrusive questions of an employee and collects personal information of an employee in an unfair way, this may be a breach of the Privacy Act 1988 and the specific tort of invasion of privacy.

The position of the APS on this issue, as conveyed by a senior APS lawyer in a recent 'off the record' conversation noted below, paints a disturbing picture of the mentality of APS bureaucrats who perpetrate these abuses.

Compulsory psychiatric referrals are likely to be unlawful, unethical and abusive, but this does not matter as they can be masked under the guise of 'care' and 'concern'. This is all part of 'playing the game' and whistleblowers should learn to join in with 'playing the game'.
It does not matter how unreasonable compulsory psychiatric referrals are because the APS is 'big' and 'unmoveable', and even if the matters were taken to court, the APS can hire barristers to 'butcher' employee litigants in the witness box.
Whistleblowers must bear the burden of 'proving their sanity' (which means criminals are granted stronger rights than APS whistleblowers, as the former group enjoys the presumption of innocence until proven guilty and, if they choose to claim insanity, it is not imposed on them).
All APS employees who have had compulsory psychiatric referrals are 'losers' and deserve what they get.

Our message to the APS is that your days of engaging in Soviet-style abuse of your employees, who choose to serve the public, are severely numbered. The ball lies in the APS's court now: either issue an official directive stopping compulsory psychiatric referrals or be prepared for the APS's (and individual senior bureaucrats') dirty laundry to be aired out in the public courtrooms.