Chief of Defence Force v Gaynor

In the case of Chief of Defence Force v Gaynor, the High Court considered the constitutionality of the termination of a military officer's commission in the Australian Defence Force (ADF) due to his political comments. The central issue was whether these comments were protected by the implied freedom of political communication under the Australian Constitution. The Court was also required to determine whether the termination of the officer's commission was an invalid exercise of power under the Defence Force (Personnel) Regulations 2002 (Cth). Additionally, the Court examined whether the termination was an invalid exercise of power under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and if section 116 of the Constitution, which guarantees freedom of religion, was engaged.

The High Court held that the primary judge had erred in applying the Lange test at the wrong level. The primary judge had set aside the termination of the respondent's commission, finding that his political comments were protected by the implied freedom of political communication. However, the Court found that the primary judge had incorrectly applied the Lange test, which is generally directed at the exercise of legislative power, rather than the individual exercise of statutory power. The Court emphasised that the implied freedom of political communication could be a relevant consideration in the exercise of a statutory power, but this had to be done in accordance with the latest expression of the nature and scope of the freedom in McCloy. The Court concluded that the primary judge's approach was erroneous, and the issue did not arise because the respondent had not articulated a clearly articulated ground of judicial review commensurate with the dicta in Wotton.

The Court allowed the appeal, set aside the orders of the primary judge, and ordered that the application for judicial review be dismissed, with costs. The Court's decision hinged on the proper application of the Lange test and the recognition that the implied freedom of political communication could be a relevant consideration in the exercise of statutory power, provided it was applied correctly.