07 December 2015

ADF Speech and the Constitution

From Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 regarding judicial review against termination of Gaynor's commission as an Army Reservist in the Australian Defence Force after repellent public comments -
272 ... it seems to me that the decision to terminate was based on the fact that the applicant expressed his views publicly while he was still a member of the ADF. That conclusion is reinforced by CDF’s substantive concluding paragraph:
25. I have also given some weight to the additional information you have provided in your submissions relating to the impact of the termination of your service on your employment prospects and your desire to continue serving in the Australian Army. However, I do not consider that these factors constitute a change in circumstance that would affect my conclusion that your retention is not in the interest of the Australian Army. In particular, they do not excuse your behaviour, nor do they diminish the seriousness of your behavioural shortcomings having regard to the standard of behaviour expected of members of the Army both permanent and Reserve.
273 This appears to me to postulate (I intend no criticism) a standard of behaviour involving conformity and compliance with stated ADF values and philosophies which did not depend on the terms of particular publications and statements. Although the applicant’s public statements were the reason for consideration of his conduct, the expected standards of behaviour against which his conduct was measured did not turn on whether at particular times he had identified himself as a member of the ADF, but rather whether he was at those times a member of the ADF.
274 I, therefore, do not accept the respondent’s second line of argument, or that termination of the applicant’s commission turned on his identification of himself as a member of the Army Reserve.
275 There is no suggestion that the applicant published any official information in his public statements. However, there is no real doubt that his published statements infringed the prohibition in item 19 of DI(G) ADMIN 08-2, even if not s 60 of the Defence Discipline Act. But this was not the basis (certainly not the only basis) of the termination of his commission; it was just one element of the matters under consideration and, as CDF emphasised in his Minute of 22 August 2013, questions of “technical” breach of this DI(G), and of DI(G) ADMIN 08-1, were to be given less weight than CDF’s conclusions that:
7. … a. your public comments (evidenced in reference A) demonstrate attitudes that are demeaning and demonstrate intolerance of homosexual persons, transgender persons, and women, and are contrary to the policies and cultural change currently being undertaken within the Army and Defence; and b. your comments critical of ADF and Government policy (evidenced in reference A) demonstrate a conflict of interest between your personal interests and your obligations to serve the Army that cannot be reconciled.
276 All of his comments were made while the applicant was not on duty, not in uniform and not doing anything connected with the ADF except criticising it and certain of its members. It is clear from the Quick Assessment Report that the applicant had made no particular contribution to his unit since November 2011 and was not really expected to do so again.
277 In my view, the applicant’s commission was, in substance, terminated for two reasons. The first was that he made public comments critical of the ADF while a member of the ADF. Those comments were in contravention of Defence instructions but much more important to their assessment was their tone and content, which was viewed within the ADF, and by CDF, as wholly unacceptable. The second reason was the applicant’s defiance of direct orders by his superiors, a circumstance which is anathema in military service.
278 I am not to be taken as indicating any criticism of either of those judgements, the persons who made them, the persons who share them or the military standards which sustain them.
279 However, in my view the circumstance that the comments were made in a personal capacity, unconnected with the ADF except by the ongoing formal circumstance of ADF membership, and that the comments were made in the form of communications about political matters which satisfy the first limb of the Lange test, raises for resolution whether the decision to terminate the applicant’s commission exceeded the statutory authority under reg 85(4) of the Personnel Regulations because it was, in its effect, not reasonably appropriate and adapted to the legitimate end served by reg 85.
280 Consideration of that issue, against the facts which I have discussed, requires attention to the explanation given in McCloy of the stages of consideration of proportionality. I regard it as appropriate to ask whether a regulation (or other legislation or legislative instrument), 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. In my view it would not.
281 That conclusion turns on the third element of the test distilled in McCloy.
282 I accept that there is a need for discipline, obedience to orders and adherence to standards in the ADF by its members. A restriction on public comment of the kind I am considering (i.e. termination of a commission) was a “suitable” response to infringement of those requirements.
283 I cannot conceive of another obvious and compelling means of achieving the objective in the face of conduct such as that of the applicant, which was defiant and intractable. I will accept that the response was therefore “necessary” in that sense.
284 However, in my view the response did not meet the third element of the test of proportionality stated in McCloy. It was not “adequate in its balance” having regard to the fact that the applicant’s conduct involved the expression of political opinion, effectively as a private citizen. A contrary view would accept that ADF members have lost that freedom of political expression, even when not serving in any active capacity, nor likely to do so again.
285 In my view, the burden on the exercise by the applicant of his freedom of political communication was considerable by reason of its consequence, whatever might be said against the manner of its expression or its content. I cannot accept that the right to exercise that freedom was lost only because the applicant remained a member of the ADF.
286 I should add, for completeness, that my view about the second limb of the Lange test is the same, with or without the application of the refinements discussed in McCloy.
287 Membership of the ADF, while on service in one form or another, undoubtedly carries with it obligations of obedience to lawful commands, and all the rigour and restrictions of military service but it does not seem to me that it extinguishes either freedom of belief or, while free from military discipline, freedom of expression. It may be the case that members of a full time regular service are rarely (if ever) free to publicly express opinions against the policies of the ADF or the decisions of their superiors but the same cannot always be said about members of Reserves. Such persons are often not on duty. They are private citizens, in substance, when not on duty and not in uniform. Military discipline under the Defence Discipline Act does not apply to them. In my view, their freedom of political communication cannot be burdened at those times.
288 There may be other grounds upon which the applicant’s commission may have been terminated. It does not appear as though the applicant was making a useful contribution to the ADF in other respects, or was likely to in the future. Termination may have been justified on some only of the grounds which CDF considered. I say nothing about those possibilities. My task is to review the grounds which were used, paying particular regard to the reasons for decision published on 10 December 2013.
289 When I do that, I conclude that the applicant’s commission was terminated because of the publication of his private views about political matters. The fact that those publications were at variance with ADF or government policy, or were in terms of which some may strongly disapprove, or were critical of ADF policies or instructions, does not appear to me to be sufficiently connected with any legitimate legislative aim to displace the freedom of political communication implied in the Constitution.