Religious Free Speech in Australia: CDF v Gaynor

Can a reserve member of the Armed Forces make controversial, religiously motivated, political comments on a private website contrary to Defence Force policy? Sadly, the answer provided by the recent decision in Chief of the Defence Force v Gaynor [2017] FCAFC 41 (8 March 2017) is, No, not without having their service terminated.

I mentioned the earlier decision of a single judge of the Federal Court in these proceedings in a previous post over a year ago: see Free speech and religious freedom even for ADF members (Dec 10, 2015). In that earlier decision Buchanan J ruled that Major Bernard Gaynor’s termination was unlawful, because in applying the relevant regulations the Chief of the Defence Force had breached the implied “freedom of political communication” under the Commonwealth  Constitution. Now the Full Court of the Federal Court (Perram, Mortimer & Gleeson JJ) has overturned that previous decision and upheld the termination. The decision and the way that the “freedom of political communication” is dealt with have disturbing possible consequences for free speech in Australia on controversial political topics, many of which are raised these days by religious beliefs which run contrary to “orthodox” opinions in society at large.

Major Gaynor had made a number of comments on his own website critical of support provided by the Australian Defence Force (ADF) for the Gay and Lesbian Mardi Gras held annually in Sydney. (This issue of course has re-emerged recently in connection with the 2017 event, with the Australian Christian Lobby and others being highly critical of a decision to allow ADF members to not only march in uniform in the highly political parade, but even to do so with a “redesigned” defence force badge impliedly expressing support for same sex marriage.) Major Gaynor had also criticised aspects of Islam and how Australia dealt with Muslim terrorism, and he had engaged in a public dispute with a high-profile transgender member of the ADF. But he had done all those things in his own time, and not while a serving active member of the Defence Force. Yet he was instructed not to make these comments, and terminated because he had not obeyed this instruction.

I encourage readers to review my previous post on the proceedings, where I set out in more detail the guidance from the High Court of Australia in McCloy v New South Wales [2015] HCA 34 on how the political communication freedom should operate. In the end the issue as Buchanan J saw it was (to quote from my earlier post):

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.

The Full Court here criticised his Honour’s approach to this issue. They said that his Honour had wrongly treated the “implied freedom” as a personal right enjoyed by citizens, when comments from the High Court required that instead it should be seen as a limit on legislative power. (See eg paras [47]-[52].) But the Full Court said that this was not a correct analysis. They explicitly rejected an argument put in terms that “the respondent has a constitutional right to express his political opinion, and by terminating his service in the ADF the appellant infringed that right” (see [65].)

What, then, was the correct approach that should have been taken? The Full Court said that the focus should have been on the validity of the regulation under which Major Gaynor had been terminated, reg 85 of the Defence (Personnel) Regulations 2002 (Cth)- see [82]. In broad terms, the court said that it needed to determine (1) whether the regulation burdened the freedom of political communication; (2) if so, whether it was nevertheless justified. At this second stage, once the purpose of the law was identified, it was necessary (in accordance with the schema laid down by the plurality judgment in McCloy) to consider questions of suitability, necessity, and “adequacy in balance”. This last issue, they say at [92], quoting McCloy, is to be dealt with as follows:

Adequacy in balance, said by the plurality to be the most important stage: “… compares the positive effect of realising the law’s proper purpose with the negative effect of the limits on constitutional rights or freedoms. It requires an ‘adequate congruence between the benefits gained by the law’s policy and the harm it may cause’, which is to say, a balance. … Logically, the greater the restriction on the freedom, the more important the public interest purpose of the legislation must be for the law to be proportionate” (at [87], footnote omitted).

In applying these tests, the Full Court, with respect, was correct to note some important features of this case. It was agreed that there was the potential for orders made under reg 85(1)(d) (which empowered the CDF to terminate an officer’s service if “satisfied that the retention of the officer is not in the interest of…(i) the Defence Force”) to burden political communications:

The appellant conceded, and the primary judge found (at [251]) that reg 85 (and more specifically, reg 85(1)(d)) could in its operation or effect burden the implied freedom of political communication (at [104]).

In particular, while the regulation itself imposed no prohibition on speech, the fact that a penalty might be imposed under the regulation for speech constituted a possible burden:

[W]hat reg 85 was capable of doing was making an officer pay a price for those communications if the communications are considered to be such that it is no longer “in the interests” of the ADF, or one branch of the Service, for a participant in those communications to remain in the ADF or in a particular Service. The price is exposure to the risk (and perhaps the reality) of having her or his service terminated, and to losing a career – to a greater or lesser degree depending on whether the officer is a reservist or a full time member of the ADF. In its operation and effect reg 85 was capable of impairing the freedom and the appellant’s concession was properly made (at [105]; emphasis added).

Yet when it came to apply the second part of the test, the question of the justification of the burden imposed, the Full Court concluded that the broad terms of reg 85 were required to allow maintenance of order and discipline in the ADF, and thus that the regulation was “adequate in balance” when considering its impact on free speech.

With respect, I do not think the Full Court very clear at this point. May officers be penalised for political opinions or not? Take this quote from [108]:

The assessment of suitability, and capacity, required by reg 85 had little to do, directly or indirectly, with the holding, expressing and communicating of political opinions. Indeed, as all the policy material and instructions in evidence before the primary judge demonstrated, the ADF in its contemporary form pursues and encourages diversity in all senses, including diversity of opinions. However it also insists on respect and tolerance, without which diversity cannot flourishRegulation 85, in particular reg 85(1)(d), read in context, directed attention to the conduct and behaviour of an officer, measured against her or his suitability – in all respects – to remain as an officer in the service of the ADF. It did not authorise a focus on the holding, expression and communication of a political opinion, in and of itself, as the criterion for determining whether it was in the interests of the ADF for an officer to remain in service. Its focus was on the suitability of an individual to remain as an officer. (emphasis added)

We are told that “diversity in all senses” is encouraged, including diversity of opinion. But then we learn that along with this there must be “respect and tolerance”. These things are clearly not inconsistent if the classic definition of “tolerance” is adopted: that is, agreeing to allow someone to express a view one actually disagrees with. But if the more modern version of “tolerance” is on view- that any disagreement on issues which may cause offence, such as sexuality or religion, is “intolerant”- then the view is more problematic.

There is a suggestion, though, that it is not just the opinions expressed but the “manner and tone” in which those opinions are expressed which is important. At [110] the Full Court says:

[I]t is not so much the subject matter of the communication (homosexual and transgender members of the ADF, the ADF’s attitude to the Sydney Mardi Gras, the perceived risks to the Australian soldiers operating in Islamic countries) which is likely to trigger the exercise of power but rather the tone and attributes of the communication, together with the way it is linked to the ADF and to any contraventions of instruction, policies or practices of the ADF. Those are the matters that go to the suitability of the officer, and the interests of the ADF. (emphasis added)

So if the Court is correct here, then there would be no problem with Major Gaynor expressing his views on these matters in a “polite and respectful” tone? One may, with respect, doubt that this is the case. In paras [10]-[12] of the decision the Full Court summarises the “offending” publications. True, one set of exchanges is described as “intemperate, vitriolic and personally offensive” (though the other party is also said to have behaved in these ways.) But other comments are described as follows, at [12]:

The respondent’s statements covered a number of topics, including expressing views that he would not let homosexual people teach his children; that it was wrong for the appellant to have granted permission for members of the ADF to march in uniform at the Sydney Mardi Gras; and a number of criticisms of the ADF’s support of transgender ADF members. The respondent also expressed views critical of government and ADF policy about the conflict in Afghanistan, linking the practice of Islam, historically and currently, with a culture of violence, which the respondent asserted posed a threat to Australia.

No mention is made here of “tone”. It seems to be assumed in recounting these views that they are intrinsically “offensive”. As I have noted previously, I am not to be taken as agreeing with all of Major Gaynor’s views. But they are matters of some import which at least warrant discussion.

In short, the question of whether the final part of the McCloy test is satisfied, that the regulation of speech here was “adequate in its balance” (see eg [108]), seems to be strongly debatable (as evidence by the finding of the trial judge to the opposite effect.) When weighting the genuine interests of the ADF in a “process of cultural change towards greater diversity and gender equality” (see [5]) for their members, are these weighty enough to require that no reserve member of the Force ever be able to publicly make his or her views known on matters of political controversy? It has to be said, in light of events noted above around the Mardis Gras, that there does indeed seem to be something of a double standard here, with members in active service in support of a clearly political agenda such as reform of the marriage laws being not only “tolerated” but “encouraged” to express that support in full uniform.

In this post, which is already too long, I will not analyse other administrative law claims which were made in the proceedings, but which also failed as they had at first instance. I just note that the Full Court deals very briefly with an argument based on s 116 of the Constitution, at [117]-[123]. It seems that on appeal the s 116 argument was directed to the rarely considered “religious test” clause. Presumably it was argued that by requiring that members of the ADF not make comments on some political matters connected with religion, there was an attempt to impose a qualification that an ADF member “not hold conservative Roman Catholic views” or something similar.

I tend to think that this was not a very strong argument (though it may well have been framed much more clearly than my impression gained from the Full Court comments). However, I think there was much more to be said about a challenge based on the s 116 prohibition of interference with “free exercise of religion”. Neither Buchanan J nor the Full Court properly engage with the main Australian authority on “free exercise”,  Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116, instead being content to cite a passing dictum from a case which was itself not about that issue. I commented on these matters in my post on the earlier proceedings and repeat that 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.

In conclusion, the somewhat confusing analysis conducted in this decision on the “balancing” of free speech rights, with the need for a disciplined and united defence force, demonstrates that there is much more work to be done in this area to achieve sound protection of both speech and belief rights in Australia. The court here seems to ready to condemn views which take the “wrong” position on political issues as obviously “intolerant”. If there is to be a sensible and moderate discussion of important social issues, we need to provide room for views expressed in a range of forums to be considered. Members of the defence force, especially where not currently in active service, need to be able to participate in these debates, and we should defend their right to do so.