Gaynor v Chief of the Defence Force (No 3)  FCA 1370
Justice Buchanan of the Federal Court has set aside a decision of the Chief of Defence Force (“CDF”) that terminated the commission of Bernard Gaynor, a Major in the Australian Army Reserve of Roman Catholic faith, due to Gaynor’s public comments on social media and his personal website. His Honour held that the decision to terminate Gaynor’s commission imposed an unreasonable burden on the implied constitutional freedom of political communication.
Gaynor, who had actively served in Afghanistan and Iran, was a Major in the Army Reserve when he made public comments regarding numerous ADF policies, including the ADF’s involvement in the Sydney Mardi Gras, tolerance of transgender people, female combat roles, and approach to Islam. Gaynor’s website identified him as an ADF member. Examples of his comments include:
“I wouldn’t let a gay person teach my children and I’m not afraid to say it.”
“The decision to pay for sex change operations should be overturned…No soldier wants to be led by a commander that has voluntarily decided to have his balls cut off.”
Gaynor was directed to remove and cease posting material that would breach ADF policy or contravene ADF values, whether or not on duty or in uniform, while he remained a member of the ADF. He ignored this direction and made no attempt to prevent his audience from knowing he was an ADF Reservist. After a series of internal procedures, the CDF terminated Gaynor’s commission. The Termination Notice contained a mix of reasons for the termination, including Gaynor identifying himself as an ADF member while making his comments (although importantly it was not confined to this), and that his comments and behaviour were incompatible with ADF membership.
Gaynor challenged the termination decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and advanced two constitutional arguments, freedom of religion and the implied freedom of political communication.
His Honour rejected the freedom of religion argument because Gaynor was not required to refrain from the exercise of his religion nor was he required to satisfy any religious test in order to remain in the Army Reserve.
In respect of the second constitutional argument advanced, His Honour held that Gaynor’s statements were protected by the implied freedom of political communication. In his judgment, His Honour reiterated that the implied freedom of political communication is not absolute, nor a personal right, and that it is a right that may at times be restricted if justified.
Gaynor’s comments were considered to be political communication as they were “political in nature and part of political discourse”. It was noted that political discourse is “frequently marked by offence or insult”.
His Honour identified the two limb test in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, which asks 1) does the law effectively burden the freedom, and 2) is the object of the law compatible with the constitutional system of representative and responsible government and is the law reasonably appropriate and adapted to achieving that legitimate end? In this case that required considering whether termination of Gaynor’s commission gave effect to a legitimate end of the relevant kind. With respect to the first limb, the decision to terminate Gaynor’s commission was held to be a disciplinary action which was aimed at preventing further communications, and therefore did effectively burden the freedom.
With respect to the second limb, His Honour considered the reasons that were given in the Termination Notice, and concluded that the main reason behind the decision to terminate was the fact that he had expressed his views publicly while he was still a member of the ADF. Because Gaynor had made the comments in a personal capacity, unconnected to the ADF except by the ongoing formal circumstances of his ADF membership, the decision to terminate exceeded the CDF’s statutory authority because it was not reasonably proportionate and adapted to a legitimate end served by the ADF’s Personnel Regulations.
His Honour then applied the test in McCloy v State of New South Wales  HCA 34, which has been distilled from the second limb of Lange and requires consideration of whether the burden on the freedom of political communication gave effect to a legitimate end in the sense that the legitimate end was suitable, necessary and adequate in its balance.
His Honour found that the decision to terminate Gaynor’s commission was suitable and necessary, but it was not ‘adequate in its balance’. The decision was a suitable restriction on public comment in light of the need for discipline and adherence to standards by ADF members. The decision was also found to be necessary, as there was no other obvious or compelling means of achieving the objective given Gaynor’s defiance. However, the decision was not adequate in its balance, as the burden on Gaynor was significant given the consequences of termination. The implied freedom of political communication cannot be burdened when members of the ADF are expressing political opinion as private citizens who are not on duty, not in uniform and are otherwise free from military discipline.
As military service is not based on an employment contract, this case may not have a more general application to the employment context. It is difficult to distil whether a court would find that offensive political statements made by an employee would be similarly protected by the implied freedom of political communication.
The case may also not be more generally applicable to ADF members. His Honour made a note of the difference between members of the Army Reserve and full time Army members, who are rarely free from military discipline, which indicated that a different outcome may apply to a regular Army member.
Importantly, the case essentially fell down to the ‘adequate in its balance test’ in the second limb. If a decision lesser than termination had been made by the CDF this may have been adequate in its balance. The decision may be appealed to the full Court of the Federal Court.
Lisa Bain is a Solicitor at King & Wood Mallesons.