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.
Personnel Regulations
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
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 [2015]
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 [2015]
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.
Key lessons
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.
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