Posted By Bernard Gaynor on Monday, April 23, 2018 1:09 pm | 1 comment

Just over a year ago, the Full Court of the Federal Court decided in Chief of the Defence Force v Gaynor [2017] FCAFC 41 (8 March 2017) that it was lawful for the Chief of Defence Force (CDF) to sack me for expressing personal views in my own personal capacity.

And just a few days ago the University of Western Australia Law Review published an article about this case (which I lost) and the one that preceded it (which I won despite the problems outlined below). The article was written by several high profile legal academics (Joshua Forrester, Lorraine Finlay and Augusto Zimmerman) and stated:

In our view, both the Federal Court and the Full Court were in error.

It is some consolation that these cases have now faced scrutiny because, in my view, if their precedents remain the law then Australia is a land where political slavery reigns supreme. But it will take someone with the courage and ability to get the High Court’s attention for this to change.

The background to the Full Court’s reasoning is summarised below.

It stated at paragraphs 5 and 6:

5. The appellant’s [Chief of Defence Force’s] written submissions, which we accept, summarised how the ADF had, over recent years, engaged in a “process of cultural change towards greater diversity and gender equality”…

6. Other public manifestations of the ADF’s attempts to change its culture were decisions such as granting permission to ADF members to march in uniform in the 2013 Sydney Mardi Gras, in July 2012 publishing strategic documents directed towards moving women into combat roles, and a number of publications, including from the office of the appellant, about the need to encourage and respect diversity within Australia’s armed forces. The issues on which all these policies and directives were focused included the role and treatment of women in the ADF, and the reported intolerance and treatment of ADF members with a sexual orientation that was not heterosexual, who were transgender, or who held non-Christian religious beliefs. It is also fair to say, in our opinion, that the ADF was attempting to encourage tolerance and acceptance of diversity at a broader level, both within the ADF and in terms of the publicly expressed attitudes and conduct of ADF members.

And then it stated at paragraph 166:

166. …Measured against the respondent’s statements, it is not difficult to conclude that it was open to the appellant [Chief of Defence Force] to reach the conclusion that the retention of the respondent in the Army was not in the interests of the Army, given the weight placed on the fundamental changes in attitudes and policy about diversity in the ADF, measured against the content, manner and tone of the respondent’s public statements, together with his refusal to desist, while maintaining his position as an officer in the Army Reserve.

The precedent set by the Full Court of the Federal Court means that a worker can be sacked by his boss because his private political views are contrary to ‘cultural change’ policies. This is lawful, even if the worker’s performance is good, workplace investigations clear him of unacceptable behaviour and even if the workplace also has policies that allow private political activity (all of which applied in my case).

However, in their recent article Forrester, Finlay and Zimmermann criticise the decision against me.

They argue that the decision was flawed because the current ‘test’ used by the courts to protect the constitutionally implied freedom of political communication only looks at laws and fails to examine executive actions made under those laws.

To put it simply, in my case the Full Court determined that the law allowing the CDF to sack a Defence member did not breach the ‘test’. It therefore concluded that the action the CDF took in my particular case (under that law) could not have breached the ‘test’ either.

It’s akin to arguing that there is no need to examine the faulty operation of a stoplight at the scene of an accident because it has been ruled that stoplights in general are important for road safety.

So out the door I went.

The academics also had these concerning words to say about the process used by the Federal Court system to conclude that I had breached orders from my Commanding Officer (CO) and Deputy Chief of Army (DCA):

…it was inappropriate for the Federal Court and the Full Court to conclude that the CO Action and the DCA Action were lawful orders. There are four reasons which, taken together or separately, explain why this is so. Specifically, the Federal Court and the Full Court:

1. Purported to review a finding of fact when judicially reviewing administrative action;

2. Acted outside their jurisdiction in concluding Major Gaynor had been lawfully ordered;

3. Did not accord procedural fairness to Major Gaynor when concluding he had been lawfully ordered; and

4. Failed to hold that, if the CO Action and DCA Action were orders, they impermissibly infringed the implied freedom and thus could not be lawful orders.

The article goes on to state:

In summary, there appear to be serious issues concerning how the Federal Court and the Full Court addressed whether or not Major Gaynor had been lawfully ordered. Given this, the High Court should have granted special leave. Such a failure of due process simply cannot happen again in Australia’s legal system.

Such a failure of due process simply cannot happen again in Australia’s legal system. One can only hope.

Again, to put it simply, the Federal Court and the Full Court of the Federal Court had no power to make a finding that I had breached orders. Those findings can only be made within the military justice system in a process where the defendant is given the evidence and allowed to cross-examine witnesses.

By the way, the military justice system did just that. And it then found in my favour with the Director of Military Prosecutions pulling all charges against me because even he decided that they had no prospect of success.

Yet in the Federal Court and Full Court of the Federal Court hearings I was ‘convicted’ of breaching orders even though no evidence was placed before the courts and in a process where I was not entitled to mount a proper defence.

This case has not just blown the implied freedom of political communication away. It has blown away the military justice system as well.

Defence members can now be sacked because a commander deems them guilty without a hearing.

Worst of all, this is now occurring in a military that is undoubtedly politicised as clearly evidenced by this passage in the University of Western Australia Law Journal:

A further consideration is that it appears that Major Gaynor spoke out at least partly because the ADF had itself engaged in political activity. Traditionally, the ADF is an apolitical organisation. This is a tradition that stems from the English Civil War and its aftermath. The military should not concern itself in matters of politics. However, in 2013 the ADF participated formally in Sydney’s Gay and Lesbian Mardi Gras…

…The Gay and Lesbian Mardi Gras in Sydney has become a significant annual cultural event. However, it is also, unquestionably, a political event. At about the time Major Gaynor wrote, the organising body for the Gay and Lesbian Mardi Gras stated that it provides ‘resources and opportunities to our community for creative and political expression’…

…There is no doubt that the Gay and Lesbian Mardi Gras has been, and still is, very effective in promoting causes important to the LGBTQI community. However, it is for this very reason that the ADF, as an apolitical organisation, cannot participate in it.

Hence, the ADF, a formally apolitical organisation, was engaged in political activity. Importantly, this political activity did not involve creating official information, as would be case if the ADF was engaged in military operations prosecuting a war. Rather, the activity involved matters not directly relevant to the defence of Australia. The ADF thereby played a role in prompting comments from Major Gaynor about government and political matters. The ADF then purported to discipline Major Gaynor for these comments while not accounting for its own actions. In our view, this is a factor in favour of finding that the Termination Decision impermissibly infringed the implied freedom.

Obviously the outcome of this case is personally disappointing for me. With the High Court’s refusal to grant leave for an appeal of the Full Court of the Federal Court’s decision, this is one battle I can take no further.

But I am more concerned about where it takes our military.

It is now an institution that is politicised. It has abandoned its own justice system. And it is at war with the free speech of Australians.

Good things won’t come of this…