The Full Federal Court, in an appeal against a decision of the Army to dismiss a major who refused to yield to instructions from his superior officers mitigate the public expression of his anti-gays views, has overturned the decision of the trial judge who had concluded that the Army’s policy which was relied upon by the Army to dismiss the officer and the decision itself contravened the implied freedom which has held to arise from the Australian Constitution to free speech.
The Army’s relevant policy was inter alia in the following terms
“..Defence personnel must not post material that is offensive towards any group or person based on any personal traits, attributes, beliefs or practices that exploit, objectify or are derogatory of gender, ethnicity or religion. Such behaviour involving social media may amount to conduct that could constitute an offence against provisions of the DFDA, the Public Service Act 1999 or amount to a breach of the APS Code of Conduct.”
He officer, a staunch Roman Catholic who had also stood as a political candidate in an election, had published comments about proposals to amend the Sex Discrimination Act 1984 (CW), which in the employee’s view had the potential to force the church to permit the hiring of openly homosexual teachers in its schools.
He had for example tweeted: “I wouldn’t let a gay person teach my children and I am not afraid to say it.”
The crunch came when the employee had an acrimonious public exchange on social media with a transgender officer on the staff of the Chief of Army, described by the Federal Court judge who heard the matter as doing credit to neither participant because of its “intemperate, vitriolic and personally offensive character”.
As a result the officer was issued with a notice to show cause why he should not be dismissed. About six months later, his employment was terminated. In a complicated legal process the officer’s challenges to the legality of the dismissal decision, and its fairness, were heard by a single judge of the Federal Court. See  FCA 1370.
The dismissed soldier had relied inter alia upon the argument that under sec 116 of the Australian Constitution, the Commonwealth government is prohibited from interfering with the free exercise of religion, or imposing any religious requirement as a test for holding public office.
The employee had argued that to the extent that the army’s processes derived from Commonwealth legislation, he could not be sanctioned for expressing his views, which were based on and supported by, according to his argument, his Roman Catholic (or any other) religion.
The dismissed employee had also relied on the findings of the High Court, notably in Theophanous v Herald & Weekly Times and Lange v Australian Broadcasting Corporation, that the Constitution contains an implied freedom of political expression, because the electoral process prescribed by the Constitution can only work as intended if people are free to express opinions about matters of political interest.
Upholding the employee’s argument about freedom of political expression, the primary judge decided that the army was unjustified in dismissing him.
On appeal by the Army to the Full Federal Court however it was held that the trial judge had overstated the nature of the “right” of political expression enjoyed by the employee.
The Full Court reversed the original decision, holding that that the army had acted lawfully when it issued a direct order to the employee to stop publishing offensive and homophobic views publicly and to remove such material from his social media sites.The Full Court determined that the army had a right to stop conduct by one of its officers which was damaging to the cohesion, morale, authority and reputation of the army and the ADF generally. Furthermore, the army was entitled to dismiss its employee for disobeying its direct orders.
“The purpose of extracting this is not to descend into the merits of the appellant’s decision, despite the repeated invitations in the respondent’s submissions for the Court to do just that. Rather it is to illustrate the kind of standard that was being set by the ADF, at the highest levels, and the content of that standard. Measured against the respondent’s statements, it is not difficult to conclude that it was open to the appellant 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.”
Chief of the Defence Force v Gaynor (2017) FCAFC 41 delivered 8 March 2017