The Federal Court has recently handed down a very important decision on free speech, with connections to religious freedom, in Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 (4 December 2015). It encouragingly reaffirms the right of Australians, including members of the Defence Force, to be able to speak their minds, even when their views are not popular.

The plaintiff, Major Bernard Gaynor, may be described as a “controversial” figure. He has a distinguished record of service in the Australian Regular Army (including time in Iraq and Afghanistan). In recent years he transferred to the Army Reserve and was promoted to Major in 2013. He has been a political candidate. He is also known for objecting to, among other things, support provided by the ADF to the Gay and Lesbian Mardis Gras, and for strong views on how Australia should deal with the threat of Islamic violent extremism.

Without recounting a long sequence of events, the decision he was complaining of was that of the Australian Defence Force (ADF) in December 2013 to terminate his commission and service. This followed directions that had been given to him not to continue to make remarks of the sort he had previously been making. As summarised by Buchanan J in the Federal Court proceedings at para [11], those remarks expressed:

antipathy to overt tolerance or support of homosexuality or transgender behaviour as well as statements critical of adherents of Islam.

As Buchanan J put it at para [215], the order which he was charged with disobeying was this:

The applicant was instructed, generally and specifically, to refrain from public statements contrary to ADF policy while he remained a member of the ADF.

It is important to note that he was not claiming a right to make such remarks while a full-time member of the Regular Army, or while on active service with the Army Reserve- see para [223]. But he claimed that, while speaking in social media and other forums in his personal capacity, he ought to be able to make these remarks, even if those who heard him became aware that he was a member of the ADF.

I should say at this stage that, while sympathetic to many of Major Gaynor’s views, I do not personally endorse all of them, or the fairly robust way in which they were expressed. His comment, for example, that he would not let a gay person teach his children is not one that I would support. I don’t propose to parse all his comments, however, and indicate which I would, and would not, endorse. The more important issue is whether Australia includes strong protection of both free speech and free exercise of religion, so that Major Gaynor and I (and anyone else who wants to!) can have an open and frank discussion about these matters.

I am pleased to say that the decision in this case supports such protections, at least in relation to free speech.

Buchanan J, in the first part of the judgment, upheld the prima facie legality of the orders that had been given to Major Gaynor not to continue public comment on these controversial matters, holding that the orders were supported by the various powers that had apparently been given to his superior officers.

However, from para [220] of the judgment, his Honour turned to consider whether, even if those orders were justified on the face of the relevant laws, those laws might actually be unconstitutional. There were two challenges to the laws on constitutional grounds: one based on the implied right to freedom of political speech, and the other based on the s 116 prohibition of the Parliament authorising undue impairment of the  free exercise of religion.

Free speech

The bulk of the decision deals with the free speech issue, so I will start there. The Australian Constitution contains no express protection of free speech (unlike the First Amendment to the US Constitution.) But the High Court has, over a number of years, identified and explained an implied “freedom of political communication” which is binding on both Commonwealth and State Parliaments. I have referred to the freedom in previous posts, such as this recent one on the controversy over a booklet issued by the Archbishop of Hobart supporting the Roman Catholic view of marriage. (Follow the links there to more detailed comments on the issue.)

In that post I noted that:

In a recent important decision, McCloy v New South Wales [2015] HCA 34 (7 October 2015), the majority of the High Court of Australia, while upholding the validity of the relevant State laws prohibiting donations by property developers, clarified the approach to be adopted in testing laws against this implied freedom. This detailed approach would no doubt be applied should the validity of a law such as s 17 of the Tasmanian legislation be tested in the courts.

Having made this prediction, it is pleasing to see it come true so quickly! In Major Gaynor’s case Justice Buchanan gives an excellent overview of previous decisions on the implied freedom, from paras [229]-[239], and then applies the McCloy framework to this question. At para [240] his Honour provided the following lengthy but important quote from para [2] of McCloy:

[2]       As explained in the reasons that follow, the question whether an impugned law infringes the freedom requires application of the following propositions derived from previous decisions of this Court and particularly Lange v Australian Broadcasting Corporation and Coleman v Power:

A. The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may “exercise a free and informed choice as electors”. It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.

B. The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power:

1. Does the law effectively burden the freedom in its terms, operation or effect?

If “no”, then the law does not exceed the implied limitation and the inquiry as to validity ends.

2. If “yes” to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as “compatibility testing”.

The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.

If the answer to question 2 is “no”, then the law exceeds the implied limitation and the inquiry as to validity ends.

3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in these reasons as “proportionality testing” to determine whether the restriction which the provision imposes on the freedom is justified.

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test – these are the inquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable – as having a rational connection to the purpose of the provision;

necessary – in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance – a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be “no” and the measure will exceed the implied limitation on legislative power.

(Emphasis added.) (Footnotes omitted.)

I have included that lengthy quote because it is important to understand the whole of the relevant test to understand how Major Gaynor’s case was dealt with, and also because I strongly suspect this is going to be an important issue in the “law and religion” area in the future (and in future I will be able to link back to this post when I need to refer to the tests!)

To sum up briefly, Buchanan J found that:

• the matters on which Major Gaynor was told not to speak were relevantly “political” issues- see paras [246]-[248]. Indeed, it seems clear that their controversial political content was the reason for the ADF order that they not be discussed. This was so even though some of the remarks were also personally insulting and offensive; quoting an earlier decision Buchanan J noted that “the fact that statements are offensive or insulting does not take them outside the field of political discourse, which is frequently marked by offence or insult”;
• the order not to speak about the relevant matters did, of course, “burden” Major Gaynor’s freedom of political communication, especially when followed by the sanction of termination of his commission;
• while not entirely clear, it seems clear that Buchanan J accepted that the purposes which the ADF were attempting to achieve by their orders to Major Gaynor were that of not undermining policies which supported diversity and opposed discrimination against homosexual and transgender persons, and that these were clearly legitimate aims;
• however, in the end, applying the McCloy tests, his Honour concluded that the means that had been adopted by the ADF in this case were not “proportional” to achievement of those aims. The means adopted, of terminating the commission, were not “adequate in balance” when taking into consideration the strong value our society places on freedom of speech.

Summing up, his Honour said:

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.

Hence the court ordered that the decision to terminate Major Gaynor’s commission be set aside.

Free Exercise of Religion

The other ground on which the decision had been challenged was free exercise of religion, under s 116 of the Constitution. I have provided a detailed analysis of the operation of s 116 in a previous post. In broad terms, the section provides that the Commonwealth Parliament may not “make any law for … prohibiting the free exercise of any religion”. Here I have to say, with respect, that I think Buchanan J was a little too quick to dismiss Major Gaynor’s claim, although in the end the free speech claim was stronger.

There are “broader” and “narrower” views that have been taken of the “free exercise” limb of s 116. The narrower view simply asks whether relevant legislation has a “direct” or “apparent” aim of impairing religious freedom. The broader view looks to the overall effect of a law, and asks whether it “unduly impairs” that right. Buchanan J here adopts a fairly narrow view, citing comments from the decision of the High Court in Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120 to the effect that actions based on religion are not “protected” by s 116 if they “offend against the ordinary laws”. The implication seemed to be that, since the ADF orders did not prevent Major Gaynor from “going to church”, they were not contrary to s 116.

However, it has to be said that, as Buchanan J himself acknowledges, the Church of the New Faith case was not about “free exercise”; it was a case dealing with the meaning of the word “religion” in a payroll tax statute. As I have noted in a detailed paper on the issue, arguably the most important decision on “free exercise” in Australian law is still the decision of Latham CJ in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116. There his Honour was careful to say that even an apparently “neutral” law might “unduly impair” the free exercise of religion.

Here Major Gaynor did say that his views on the relevant issues were related to his Roman Catholic faith- see para [11]. It seems to me that it was at least worthy of discussion whether an order which forbade him from expressing views which his faith motivated him to express, was an undue impairment of his religious faith. Buchanan J commented at [215] that :

Neither the Termination Decision nor the Redress Decision required of the applicant that he refrain from the exercise of his religion, nor required that to remain a commissioned officer he satisfy a religious test of any kind. The applicant was instructed, generally and specifically, to refrain from public statements contrary to ADF policy while he remained a member of the ADF. I am satisfied that the applicant acted by choice to make the statements which he did. I do not accept that even as a matter of conscience, he felt he had no choice but to defy the instructions and orders given to him.

There a number of odd features of this analysis. There seems to be a dichotomy set up between a “choice” to speak and the matter being one of “conscience”. There is no discussion of the factors that might motivate someone, on the basis of religious belief, to speak about homosexuality or Islam.

I have no personal contact with Major Gaynor. I have no evidence of the strength of his religious commitment to Roman Catholic teachings. But it seems to me that there ought to have been more careful consideration of this issue, which does of course have possibly important consequences for future questions of religious faith being expressed by public officials.

Indeed, while it is not possible here to do justice to the idea, it strikes me that now that the High Court in McCloy has set up a careful scheme for balancing the implied freedom of political speech with other important social values, it may well be open to applying the McCloy tests, and in particular the questions of “proportionality”, to consideration of what is, after all, an explicit constitutional freedom in s 116. In fact my colleague Dr David Tomkins, in a helpful overview of the McCloy decision (“Developers, Election Funding and the Implied Freedom of Political Communication: the HCA weighs in” (Dec 2015) Law Society Journal 88-89), has suggested that indeed this is one direction that might be taken in the future. Such a balancing process, which gives weight to the importance of religious freedom and the need to only over-ride it in very limited circumstances, would in my view be a positive development.

Implications

There are a number of important implications of this decision. In particular, it is very significant that it comes at a time when there is great controversy in the community about what can be said by those who hold to traditional Christian views of sexual morality, about other lifestyles. The decision also has possible ramifications for comments in the public arena about the dangers of violent extremist Islam. It is encouraging that the decision stresses the importance of free speech on controversial matters, even in circumstances where that speech may “offend” or “insult”. It provides an important reaffirmation that robust debate is vital, and that diversity of views on controversial matters does not need to be “shut down”, even if the person making the comments is a public servant.