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.

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Free speech and religious freedom even for ADF members

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.

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