In December 2013, the Chief of the Defence Force (CDF) terminated Mr Gaynor’s commission as a Major in the Australian Army Reserve. In a recent decision, the Federal Court of Australia in Gaynor v Chief of the Defence Force (No 3)  FCA 1370 has set aside the CDF’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) on the basis that the termination of Mr Gaynor’s commission was not warranted as it imposed an unreasonable burden on the implied constitutional freedom of political communication. Mr Gaynor had made comments on social media which were not in accordance with the Australian Defence Force (ADF) policies.
The Court found that the comments were protected by the implied freedom of political communication because they were political and made in Mr Gaynor’s personal capacity, disconnected from the ADF. Care should be taken when extrapolating the Court’s finding in this case into other contexts such as the employment relationship. This is because military service is not based upon a contract of employment. Further, the Court emphasised that the implied freedom of political communication is not absolute and “may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides”. The result may have been different had Mr Gaynor been a full time Regular Army Member. Mr Gaynor also appealed on the basis of the constitutional protection of freedom of religion, but the Court dismissed this ground of the appeal.
Mr Gaynor was a Major in the Australian Army Reserve. Mr Gaynor made comments on social media regarding ADF’s involvement in the Sydney Mardi Gras parade, the Australian Defence Force’s tolerance of transgender service members and its approach to Islam. Examples of his comments are as follows.
- “I wouldn’t let a gay person teach my children and I’m not afraid to say it”
- “…the decision to allow women to serve in front line combat positions is a joke”
- “The Defence gave approval for its proud uniform to be paraded through the streets of Sydney during the Mardi Gras, sharing the road with pimps, prostitutes and purveyors of moral decadence. Good call”
- “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”
- “Anytime I have suggested it might be worthwhile understanding why Islamic beliefs lead to violence I have been ridiculed and rebuked”
Mr Gaynor was directed to remove and cease posting material that would breach ADF policy, contravene ADF values or that were otherwise not in the interests of the Army. Mr Gaynor did not obey these orders. After a series of internal procedures, the Chief of the Defence Force terminated Mr Gaynor’s commission.
The findings of the Federal Court
Mr Gaynor applied for judicial review of the decision under the ADJR Act and advanced two constitutional arguments.
- The freedom of religion under section 116 of the Constitution.
- The implied freedom of political communication.
Freedom of religion
His Honour rejected the freedom of religion argument because Mr 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.
Implied freedom of political communication
Rather, his Honour held that Mr Gaynor’s statements were protected by the implied freedom of political communication. His Honour found that Mr Gaynor’s statements constituted political communication because they were “political in nature and part of political discourse”. His Honour noted that offensive and insulting statements “do not take them outside the field of political discourse” and that political discourse is “frequently marked by offence or insult”.
Acknowledging that the implied freedom of political communication is not absolute and restriction on the freedom of political communication is at times justified, his Honour applied the test propounded in McCloy v State of New South Wales (a test derived in turn from propositions in Lange v Australian Broadcasting Corporation and Coleman v Power). The McCloy test requires the Court to consider 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 Mr Gaynor’s commission for expression of political opinion while he was not under military discipline was not “adequate in its balance” and should be set aside. His Honour held that the implied freedom of political communication cannot be burdened when members are expressing political opinion as private citizens who are not on duty, not in uniform and are otherwise free from military discipline.
His Honour noted the difference between the members of Army Reserve (who are often not on duty) and full time Regular Army members (who are rarely free from military discipline), thereby indicating that a different outcome may have applied had Mr Gaynor been a Regular Army member.
Military service is not based upon a contract of employment. As a result, this case does not have general application to the employment context. The case sheds very little light on the extent to which a court would find that offensive or insulting political statements published by an employee would be protected by the implied freedom of political communication. For this reason, care should be taken when considering the implications of this decision in other contexts.
Nonetheless, it would be reasonable to say that the case does not suggest that the implied freedom of political communication would prevent an employer from dismissing an employee who published offensive or insulting political statements in breach of the terms of his or her employment, especially in circumstances that reflected adversely on the employer.
If you have any questions about the case, contact Paul Noonan, Partner, on 03 9641 8603.