Sunday, 20 December 2015
Gaynor v Chief of the Defence Force (No 3)  FCA 1370 – Reservist saved by implied freedom of political communication
An Army Reservist of Roman Catholic faith who was terminated due to his highly critical comments made on social media concerning gay members of the ADF, women serving on the front line, and Islam has been saved by the Federal Court who found the ADF’s termination decision was contrary to the implied freedom of political communication in the Constitution. The case sheds light on the extent to which the ADF (or employers by analogy) can control a person’s political expression on social media out of hours. Note that this is not an unfair dismissal case, as members of the Australian Defence Force (ADF) are not employees. Members of the ADF are commissioned, with their commission being governed by the Crown prerogative and regulated by the Defence Act 1903 (Defence Act) and the Defence (Personnel) Regulations 2002 (Personnel Regulations).
Background and facts
Mr Bernard Gaynor served in Afghanistan (2006) and Iraq (2006-7, 2008-9 and 2009) and was awarded the United States of America Meritorious Service Medal in October 2009. In July 2011 he transferred to the Australian Army Reserve. At the time the incidents that led to his termination occurred, Mr Gaynor was a Major in the Army Reserve.
In January 2013, Mr Gaynor launched a webpage, Twitter page and Facebook page to promote his candidature as a Senate Candidate for Katter’s Australian Party for the Federal elections in 2013. On 23rd January Mr Gaynor tweeted “I wouldn’t let a gay person teach my children and I am not afraid to say it”. Mr Gaynor’s webpage identified him as having served in the Iraq War. On the 24th January, Mr Gaynor made a press release available along the same lines, that parents should be able to choose if their children are taught by a gay teacher.
On 6 February 2013 Major Gaynor was interviewed and counselled by Lieutenant Colonel Buxton who directed Major Gaynor, using the relevant DI(G), not to make any further intemperate or inflammatory remarks on social media, whether or not on duty or in uniform while he remained a member of the ADF.
Mr Gaynor ignored this direction, and made no attempt to prevent his audience from knowing he was a current ADF Reservist. On 22nd March 2013 the Deputy Chief of Army sent Mr Gaynor a letter referring to his publications and asking him to stop. Mr Gaynor also ignored the direction contained in this letter.
In March and April 2013 Mr Gaynor published a number of controversial statements on social media including:
1. A series of press releases, reflecting the material on his webpage, critical of the ADF’s participation in the Mardi Gras, stating that the ADF was accommodating to gay officers and transgender officers but discriminatory against Christian members who make public comment.
2. Press releases critical of the ADF’s women on the front line policy.
3. An article on his webpage headed “domestic betrayal a waste of soldiers’ sacrifices” which was openly critical of defence policy in Afghanistan and linked Islam to violence.
4. A Facebook post which was critical of the ADF’s policies in relation to gay officers, sex-change operations, women serving on the front line, and Islam. The post contained a link to a press release by Mr Gaynor. Both the Facebook post and press release identified Mr Gaynor as a Reservist.
5. A Facebook post where Mr Gaynor wrote “at what point does the ADF become complicit in child abuse? Should children be exposed to nudity and sexually explicit behaviour at the Mardi Gras?”
6. A Facebook post critical of ADF personnel participation in Mardi Gras that directly mentioned the Deputy Chief of the Army. The identification of the officer was intended to mock and ridicule the officer. Mr Gaynor also mentioned the Deputy Chief of the Army in a tweet along the same lines.
In May 2013, Mr Gaynor became more aggressive in his strategy and turned specific attention to the transgender officer on the staff of the Chief of Army. His comments were personal and offensive such as “he thinks that because he has had a nip here, a tuck there and popped a bunch of pills that he is now a woman” and “the Army is now the employer of choice for those who want to take their cross- dressing career a little further”.
On 30 May 2013 My Gaynor was served with a Termination Notice issued by Chief of Army who was satisfied the criteria in reg.85(1)(d) and (1A) was established (Termination Notice). My Gaynor responded with a statement of reasons on 27 June 2013.
The decision to terminate Mr Gaynor’s commission was made on 10 December 2013 by the Chief of the Defence Force (Termination Decision). A variety of reasons were given in the termination decision including:
· being openly critical on social media of ADF and government policy, support offered to gay and transgender members, and the decision to permit women to serve in combat roles;
· clearly identifying as an active Army Reserve member on many occasions when making comments contrary to ADF policies;
· behaviour generally acting contrary to policies and cultural change initiatives;
· conduct repeatedly inconsistent with the DI(G) PERS 50-1;
· failure to modify online behaviour; and
· persistence of the conduct.
Mr Gaynor made a Redress of Grievance complaint, and progressed it through all internal avenues before the Chief of Defence Force finally rejected the Redress of Grievance on 30 June 2014.
Mr Gaynor challenged the Termination decision under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) as well as under constitutional grounds (s.116 freedom of religion, and the implied freedom of political communication). He was successful before Justice Buchanan on the implied freedom of political communication argument.
Defence Instructions (General) (DI(G))
The Secretary and Chief of the Defence Force have joint administrative responsibilities in the administration of the Defence Force (s.9A Defence Act). Instructions and policies issued with the authority of the Secretary and the Chief of the Defence Force pursuant to s.9A have statutory effect and are known as Defence Instructions (General) (DI(G)). DI(G)’s relevant to this case include:
· DI(G) PERS 50-1 issued 18 October 2001 “Equity and Diversity in the Australian Defence Force”;
· DI(G) ADMIN 08-1 issued 5 October 2007 “Public comment and dissemination of official information by Defence personnel”; and
· DI(G) ADMIN 08-2 issued 16 January 2013 “Use of social media by Defence personnel”.
Mr Gaynor was required to follow these Defence Instructions.
Mr Gaynor was also required to abide by the Chief of Army Directive CA Directive 15/12 “Army Implementation Plan for Removal of Gender Restrictions” which attempts to improve the Army’s gender diversity and implement an ADF wide plan.
Regulation 85 of the Personnel Regulations lists the reasons for which the service of an officer may be terminated. The list includes at 1(d):
“the Chief of the officer’s Service is satisfied that the retention of the officer is not in the interest of:
(i) The Defence Force; or
(ii) The Chief’s service”
The reasons for which the Chief of the officer’s Service may be satisfied under 1(d) are not limited but include reasons relating to the officer’s behaviour.
Regulation 85(2) permits the Governor-General (or their delegate under reg.85(6)) to issue a termination notice stating the reasons, particulars and facts of termination, inviting the officer to give a statement of reasons and giving a period of at least 28 days for the officer to provide their statement of reasons.
Regulation 85(4) states that the Governor General (or their delegate under reg.85(6)) must issue a termination decision where a statement of reasons has been provided by the officer within the period, and having considered the statement, the Governor General is of the opinion the reason for termination has been established and has not been affected by a change of circumstance since the termination notice was given to the officer.
In Mr Gaynor’s case, the Chief of the Defence Force and Chief of Army had been delegated the power to issue a termination notice and make a termination decision.
The ADJR Act claim
The ADJR Act claim was brought under s.5 of the ADJR Act. Mr Gaynor attempted to rely on every ground available in s.5(1), which made it difficult for Justice Buchanan to distil the essence of Mr Gaynor’s argument.
However, Justice Buchanan did conduct an analysis of possible grounds, reiterating that reg.85(1)(d) is a satisfaction power. The judiciary cannot rule on whether the satisfaction of a decision maker is appropriate, as this would amount to merits review, not judicial review. Similarly, the judiciary cannot analyse the appropriateness of ADF policies. The DI(G) applied to Mr Gaynor whether or not he was in uniform, as his service obligation was to obey the instructions and orders he was given and respect the disciplined nature of the ADF. The DI(G)’s themselves were not unlawful. There was no evidence showing bias, judgment or predetermination by the Chief of the Defence Force and no substance in any of the challenges to the Termination Decision under the ADJR Act.
The constitutional law claims
Section 116 of the Commonwealth Constitution states:
“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”
Mr Gayor argued that his posts on social media were protected by s.116 of the Constitution, as his comments amounted to the exercise of his Roman Catholic religion. Justice Buchanan immediately dismissed this argument, as the Termination Decision did not require Mr Gaynor to refrain from the exercise of his religion or satisfy a religious test of any kind. There is limited case law on the point, Justice Buchanan cited Mason ACJ and Brennan J’s test from Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120:
“The area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. Conduct in which a person engages in giving effect to his faith in the supernatural is religious, but it is excluded from the area of legal immunity marked out by the concept of religion if it offends against the ordinary laws, i.e. if it offends against laws which do not discriminate against religion generally or against particular religions or against conduct of a kind which is characteristic only of a religion”.
Justice Buchanan applied this test to Mr Gaynor’s situation and found s.116 could not be breached, as none of the instructions or orders given to Mr Gaynor or the Termination Decision infringe the test.
Implied freedom of political communication
Justice Buchanan begins his analysis by identifying the two limb test in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Lange):
Limb 1: Does the law effectively burden the freedom?
Limb 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?
Justice Buchanan also describes the distillation of the second limb of Lange in McCloy v State of New South Wales  HCA 34 where the majority required proportionality testing in the second limb, requiring an analysis of whether the law is suitable, necessary and adequate in its balance. For a more detailed analysis of the two limbed test, see my blog post on McCloy v State of New South Wales  HCA 34.
Importantly, Justice Buchanan reiterated that the freedom is not a personal right, and in Mr Gaynor’s case, the implied freedom is a suggested limitation on the discretion available under reg.85 of the Personnel Regulations. The first limb required an examination of whether the statements and communications by the applicant were political in nature. Justice Buchanan found that Mr Gaynor’s statements were clearly political in nature, and the fact the statements were offensive did not take them outside the scope of political discourse, even when directed at an individual. The Termination Decision was essentially disciplinary action which was an adverse consequence aimed at preventing further communications.
In considering the second limb, the reasons given in the Termination Notice were analysed. As identified in the facts above, the Termination Notice contained a mix of reasons for termination. The reasons included Mr Gaynor identifying himself as an ADF member while making his comments, but were not confined to this, and included the contention that Mr Gaynor’s public comments and general behaviour and his membership of the ADF as such were incompatible. Justice Buchanan concluded that the main reason behind the decision to terminate Mr Gaynor’s commission was the fact that Mr Gaynor had expressed his views publicly while he was still a member of the ADF.
Mr Gaynor had made the comments in a personal capacity, unconnected to the ADF except by the ongoing formal circumstance of his ADF membership. Justice Buchanan found the second limb of the Lange test was not satisfied. The decision to terminate Mr Gaynor’s commission exceeded the statutory authority under reg.84(4) of the Personnel Regulations because it was not reasonably proportionate and adapted to a legitimate end served by reg.84.
In applying the “suitable, necessary and adequate in its balance” criteria from McCloy, Justice Buchanan considered the question of whether “a regulation which directly prohibited the applicant’s conduct, would be valid if it was based on the same matters as the findings of CDF in the Termination Decision”. Justice Buchanan found such a regulation would not be “adequate in its balance”:
1. Suitable – there is a need for discipline, obedience to orders and adherence to standards by ADF members, and a restriction on public comment is “suitable”.
2. Necessary – there is not another obvious and compelling means of achieving the objective in the face of conduct such as Mr Gaynor’s who was defiant and intractable.
3. Adequate in its balance –Mr Gaynor’s conduct involved the expression of political opinion, effectively as a private citizen. The burden on Mr Gaynor was significant, given the consequences of termination. The right to the freedom cannot be lost merely because of the main reason for termination, being Mr Gaynor remained a member of the ADF. Members of the full time regular services may rarely be free to publicy express opinions against the ADF, but the situation is not the same for Reservists who are often not on duty, and are private citizens when not in duty or uniform. When not in duty or uniform, Reservists should not have their freedom of political communication burdened.
While Justice Buchanan applied the elements of the McCloy distillation of the test, he made it clear his decision would fall the same way if he had applied the second limb of Lange in its traditional sense.
This case is a win for freedom of political communication advocates. It clearly states that the ADF cannot terminate a Reservist for expressing their political views where the political views are expressed when not on duty or in uniform, even where the Reservist makes it clear they are a current ADF member. The ADF case fell down on the “adequate in its balance” component of the second limb of the Lange test. If a decision lesser than termination had been made, this may have been “adequate in its balance”.
Analogies can be drawn from this case to the employment context. While each case will turn on an employee’s type of employment and the applicable policies, an employee’s freedom of political communication will be protected while the employee is acting in a private capacity. The protection may extend to instances where the employee states their connection to their employer, but this would depend on whether the second limb of Lange is satisfied, and in particular, whether the action taken against an employee is “adequate in its balance”. There is no higher authority case law on the application of the implied freedom of political communication to an employment law unfair dismissal context.
Note there is a strong chance this case will be appealed to the Full Court of the Federal Court and eventually the High Court. While it remains to be seen whether leave for appeal will be granted, given the case turned on the application of the “adequate in its balance” component of the test as enunciated in McCloy, and this is a new component of the second limb of Lange, there is a high chance leave will be granted.