Gaynor v Chief of the Defence Force (No 3)
[2015] FCA 1370
•4 December 2015
FEDERAL COURT OF AUSTRALIA
Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370
Citation: Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 Parties: BERNARD GAYNOR v CHIEF OF THE DEFENCE FORCE File number(s): NSD 692 of 2014 Judge(s): BUCHANAN J Date of judgment: 4 December 2015 Catchwords: DEFENCE AND WAR – applicant commissioned officer in Australian Defence Force – applicant had served overseas – applicant Army Reservist – applicant made comments on social media not in accordance with Australian Defence Force policies – comments regarded as “inappropriate” by the Australian Defence Force – applicant given show cause notice – applicant’s commission terminated – applicant pursued multiple review, Redress of Grievance, processes – termination date delayed – reviews undertaken of decision to terminate commission – decision to terminate commission upheld – applicant’s commission terminated
ADMINISTRATIVE LAW – applicant applied for judicial review against termination of commission as Army Reservist in the Australian Defence Force – applicant applied for judicial review of three “decisions” of the respondent – one “decision” not a decision for the purpose of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – broad claims under Administrative Decisions (Judicial Review) Act1977 (Cth) s 5 – respondent claimed the application to review two decisions was time-barred under Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11 – one decision held to be time-barred – time extended for the other decision, no prejudice to the respondent – applicant brought proceedings within 28 days of termination – subject to constitutional grounds no substance in any of the applicant’s challenges to the decision to terminate commission – implied freedom of political communication requires the decision to terminate be set aside – sections 5(1)(d), (e) and (j) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) set aside the decision to terminate
CONSTITUTIONAL LAW – applicant alleged comments on social media protected under the Constitution – applicant claimed protected by s 116 of the Constitution, freedom of religion – no basis to claim comments were protected through freedom of religion – no evidence applicant acting under religious compulsion – applicant claimed comments protected by implied freedom of political communication – Lange ((1997) 189 CLR 520) test applied – McCloy ([2015] HCA 34) applied – applicant’s comments on social media were political communication – applicant’s comments made whilst not on duty – respondent claimed any burden on freedom reasonably appropriate and adapted, or proportionate – respondent claimed legitimate end of maintaining efficacy, efficiency and morale of, and confidence in, the Australian Defence Force – decision to terminate not referrable to the fact the applicant identified himself at particular times as Army Reservist – decision to terminate the applicant’s commission based on the fact applicant expressed view publicly, while a member of the Australian Defence Force – respondent’s actions disproportionate to the power afforded by regulation 85 of the Defence Force (Personnel) Regulations 2002 (Cth) – termination set aside
Legislation: Constitution, s 116
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 3(3), 5, 5(1)(d), 5(1)(e), 5(1)(j), 5(2)(d), 11, 13, 13(1)
Defence Act 1903 (Cth), ss 8, 9, 9(2), 9A, 9A(1), 9A(2), 16, 50, 124(1)(a)
Defence Force Discipline Act 1982 (Cth), ss 3, 14, 27, 29, 60, 60(1)
Judiciary Act 1903 (Cth), s 39B
Sex Discrimination Act 1984 (Cth), ss 14, 38, 38(1)
Defence Force Regulations 1952 (Cth), regs 75, 82, 87, 91, 93
Defence (Personnel) Regulations 2002 (Cth), regs 6, 6(1)(g), 7, 82, 83, 84, 85, 85(1)(d), 85(1)(d)(ii), 85(4)(b)(ii), 85(1A), 85(1A)(b), 85(1A)(c), 85(2), 85(4), 85(5), 85(6), 119, 119(1)Cases cited: Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 187; (1983) 48 ALR 500
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
Buck v Bavone (1976) 135 CLR 110
C v Commonwealth of Australia [2015] FCAFC 113
Canwest Global Communications Corp v Australian Broadcasting Authority [1997] FCA 540
Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120
Coleman v Power (2004) 220 CLR 1
The Commonwealth v Welsh (1947) 74 CLR 245
Coutts v The Commonwealth (1985) 157 CLR 91
Graham v Deputy Chief of Air Force [2004] FCA 1377
King v Chief of Army [2012] ADFDAT 4; (2012) 269 FLR 452
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Marks v The Commonwealth (1964) 111 CLR 549
McCloy v State of New South Wales [2015] HCA 34; (2015) 89 ALJR 857
Millar v Bornholt (2009) 177 FCR 67
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Shand v Chief of the Army [1998] FCA 265
Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp [1997] FCA 578
Unions NSW v State of New South Wales (2013) 252 CLR 530
Wotton v State of Queensland (2012) 246 CLR 1Date of hearing: 17, 18 and 19 August 2015 Date of last submissions: 18 August 2015 (Respondent)
26 August 2015 (Applicant)Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 292 Counsel for the Applicant: Mr P King Solicitor for the Applicant: Robert Balzola & Associates Counsel for the Respondent: Mr J Kirk SC with Mr D Robertson Solicitor for the Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 692 of 2014
BETWEEN: BERNARD GAYNOR
ApplicantAND: CHIEF OF THE DEFENCE FORCE
Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
4 DECEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The decision of the Chief of the Defence Force on 10 December 2013, that the service of the applicant in the Australian Defence Force be terminated, is set aside.
2.Any application by the respondent, that an order different from Order 4 below should be made, must be made on or before 15 December 2015 and, if made, will be listed for directions at 9.30 am on Friday 18 December 2015.
3.If no application by the respondent is made in accordance with Order 2 above, Order 4 shall take effect and Order 2 will lapse.
4.The respondent is to pay the applicant’s costs, as taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 692 of 2014
BETWEEN: BERNARD GAYNOR
ApplicantAND: CHIEF OF THE DEFENCE FORCE
Respondent
JUDGE:
BUCHANAN J
DATE:
4 DECEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This judgment deals with an application for judicial review of decisions by which the applicant’s commission as a Major in the Australian Army Reserve was terminated by the Chief of the Defence Force (“CDF”).
The applicant’s commission with the Army Reserve was terminated by CDF on 10 December 2013. After a later final rejection by CDF of a “Redress of Grievance”, the applicant’s service with the Australian Defence Force (“ADF”) ceased on 11 July 2014.
The right of review engaged by the applicant is given by the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). In aid of its particular provisions (to which reference will be made in due course) two constitutional arguments were advanced which relied upon provisions contained, or to be implied, in the Australian Constitution concerning freedom of religion and protection of political communication.
The reasons which follow explain why I would reject all of the challenges based only on the particular provisions of the ADJR Act, but I uphold the argument concerning protection of political communication. That protection, operating together with specific provisions of the ADJR Act, mandates that relief be granted to the applicant.
I propose, in the first instance, to address the applicant’s case, and the reasons for the termination of his commission, without regard to the constitutional issues and upon the basis that the only limitations upon the power of CDF (and other officers) were those arising from the immediate statutory sources for their actions, and for the authority which they exercised or to which they referred. I will deal separately and independently with the constitutional arguments.
The foundation of the proceedings
The applicant commenced proceedings in this Court on 8 August 2014. Despite some uncertainties arising from the way in which he pleaded his case (initially and by later amendment), it was made clear in proceedings on 11 December 2014 that the applicant’s case consisted of claims to relief under the ADJR Act supported by the constitutional arguments. That provides the legal and practical framework against which the evidence must be assessed.
The applicant set out, in that framework, to challenge three asserted “decisions” to which, he contended, the ADJR Act applied.
The first was the decision by CDF dated 10 December 2013 to terminate the applicant’s commission and service (“the Termination Decision”). The second was a decision on 30 June 2014 by CDF to finally reject the applicant’s Redress of Grievance (which had earlier been rejected by the applicant’s Commanding Officer and a delegate of the Chief of Army) (“the Redress Decision”). The third “decision” challenged was an earlier report dated 24 January 2013, prepared for the applicant’s Commanding Officer, which that officer endorsed with remarks of his own (“the Quick Assessment Report”).
The respondent contended that the challenges to the Termination Decision and the Quick Assessment Report are time-barred. Section 11 of the ADJR Act requires a challenge to a decision (to which the ADJR Act applies) to be made within 28 days or such further time as the Court allows. I will not accept the respondent’s challenge to the Termination Decision based on any limitation arising from s 11 of the ADJR Act. It was reasonable for the applicant to use, and exhaust, his opportunities for internal review and challenge before resorting to litigation. The proceedings were commenced within the 28 days after termination of the applicant’s appointment took effect, and I see no prejudice to the respondent if I extend time for a challenge to the Termination Decision.
For reasons given later, I will not extend time for a challenge to the Quick Assessment Report.
Background
The applicant has strong views which he attributes to the teachings and doctrines of the Roman Catholic Church. As they relate to the events which led to the termination of his commission, those views were expressed as an antipathy to overt tolerance or support of homosexuality or transgender behaviour as well as statements critical of adherents of Islam. There were three issues in particular, with respect to the first aspect of his personal views, which provoked public statements by the applicant which ultimately led to the termination of his commission.
Before I identify those matters in a general way, it will be useful to identify the applicant’s background and (briefly only) his passage through the military hierarchy in the years which preceded the events which led to the termination of his commission.
The applicant enlisted in the Australian Army Reserve on 14 June 1997. The following year he applied to the Australian Defence Force Academy and was appointed as an Officer Cadet in the Australian Regular Army (“the Army”) in January 1999. In December 2002, he graduated from the Royal Military College of Australia, Duntroon.
The applicant served in Iraq in 2006-7, 2008-9 and 2009 and also briefly in Afghanistan in 2006. He was awarded the United States of America Meritorious Service Medal in October 2009. His general competence is not in issue. He transferred to the Australian Army Reserve in July 2011 and was promoted to the rank of Major in January 2013.
As a member of the Army Reserve the applicant was part of the Australian Intelligence Corps (“AUSTINT Corps”) and was posted to the Defence Intelligence Training Centre (“DIntTc”). His Commanding Officer was Lieutenant Colonel Buxton (“CO DIntTc”).
Before the applicant transferred to the Army Reserve he became involved in the establishment of a political party in around mid-2010, named “The Queensland Party”. In 2011, The Queensland Party merged with “Katter’s Australian Party” and the applicant became the National General Secretary of that political party. According to the applicant’s evidence he resigned that position on 1 January 2013 and nominated to be endorsed as a Katter’s Australian Party Senate candidate in Queensland at the next Federal elections due in 2013.
On 20 January 2013, the applicant launched a webpage, Twitter page and Facebook page to promote his candidature. It was the publication of statements on those social media which, shortly thereafter, brought him into conflict with his superiors in the Army and in the ADF.
With that information I may return to outline, at this stage, the three issues which were, it seems, at the heart of the decision to terminate the applicant’s commission.
The first issue arose in connection with the establishment, on 21 November 2012, of a Senate committee of enquiry into an “exposure draft” of a bill to consolidate Commonwealth anti‑discrimination legislation. Debate ensued about provisions of the Sex Discrimination Act 1984 (Cth) (“the SD Act”). There were proposals to extend the categories protected from discrimination to “sexual orientation” and “gender identity”, as well as the then existing categories of “sex, marital status, pregnancy or potential pregnancy, breastfeeding or family responsibilities”. There was also debate about whether the exemption of religious educational institutions from aspects of the SD Act should be retained.
At that time, s 38(1) of the SD Act provided:
38Educational institutions established for religious purposes
(1)Nothing in paragraph 14(1)(a) or (b) or 14(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, marital status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.
The effect of some of the proposed amendments (which were later substantially enacted) had the potential, in the applicant’s view, to cause s 14 of the SD Act to compromise the position of Roman Catholic schools if the exemption in s 38 was also removed. On the applicant’s evidence, he became convinced that changes proposed by some groups to the anti‑discrimination laws “would limit the right to publicly oppose homosexual activity” and he was “also concerned about pressure applied by various homosexual groups to change the laws further to effectively force Christian schools to hire homosexual teachers”.
On 23 January 2013, the applicant tweeted on his Twitter page:
I wouldn’t let a gay person teach my children and I am not afraid to say it
At the same time this statement was published on Twitter, the applicant’s newly established webpage identified him as having served in the Iraq War and contained a photo of him receiving his United States of America Meritorious Service Medal arising from that service. The applicant denied publishing any statement at that time referring to his then current Army Reserve status, but that soon became evident and, within a short time, the applicant began to publish the connection openly when he made further public statements.
I shall deal later with the more detailed course of events which followed within the ADF. The applicant’s Twitter statement quoted above, however, provoked media and other interest to which he contributed with a press release the following day.
The press release prominently identified the applicant as a nominee to be a Katter’s Australian Party candidate in Queensland for the Senate. The press release said, in part:
Julia Gillard and Tony Abbott would both support the right of parents to choose who teaches their children, says Katter’s Australian Party Queensland Senate nominee, Bernard Gaynor.
“The Prime Minister of Australia and Opposition Leader would both agree that parents should be able to choose who teaches their children,” Mr Gaynor said.
“I’m sure both of them would 100 per cent back the rights of parents if they had concerns over the values of teachers. This includes concerns over teachers who promote homosexual lifestyles, either actively or by example, to children.”
“This is not controversial. Any society with a basis in common sense would support parental responsibility.”
“Furthermore, considering both Tony Abbott and Julia Gillard oppose gay marriage it makes perfect sense that they would also be uncomfortable with teachers promoting a lifestyle that has serious negative health consequences and is opposed to the values of the majority of Australians.”
That day the applicant was suspended from membership of Katter’s Australian Party and from that time he was no longer a nominee to be a Senate candidate for that party. However, as will be seen, he continued to proclaim his personal, political, social and religious views in a variety of ways.
As I have said, I will refer in due course to the events which followed those publications. It suffices, at present, to indicate that the applicant was interviewed by Lt. Col. Buxton, counselled and instructed to make no further comment of a similar kind which might associate him with the ADF.
The second issue concerned permission by CDF on 11 November 2012 for members of the ADF to march in uniform at the Sydney Mardi Gras on 2 March 2013. A recommendation to CDF, on 1 November 2012, by a senior officer that this be approved informed CDF:
1.I am writing to provide you with background on the request for Australian Defence Force (ADF) members to wear uniform at the Sydney Mardi Gras parade, and to seek your approval for an Administrative Instruction to be prepared by the Chairperson of the Defence Gay, Lesbian, Bisexual, Transgender and Intersex Information Service (DEFGLIS), to be approved by yourself, for ADF members’ attendance at the Sydney Mardi Gras parade.
2.There are already a number of Australian uniformed organisations participating in the Sydney Mardi Gras parade including Federal and NSW State Police Forces, NSW Fire Brigade, NSW Rural Fire Service, NSW Ambulance Service, and the NSW State Emergency Service. By granting permission for ADF members to attend in uniform, the Department of Defence will join these other Australian uniformed agencies in support of their Lesbian, Gay, Bisexual and Transgender (LGBT) communities.
3.The Sydney Mardi Gras parade is Australia’s largest event for the LGBT community. The parade seeks to raise visibility of the LGBT communities, and promotes a sense of inclusiveness for members. A growing number of ADF members and their families and friends attend this parade each year, with attendance coordinated through DEFGLIS.
…
8.I recommend that you agree participation in the Sydney Mardi Gras parade be authorised on the condition that participating ADF members change out of uniform at the end of the parade in order to allow Defence members and employees to freely participate in post parade celebrations as individuals rather than as identified representatives of Defence.
The approval by CDF was in the following terms (addressed to the chair of Defence Lesbian, Gay, Bisexual, Transgender, and Intersex Information Service (“DEFGLIS”)):
I write with regard to your request on behalf of the Defence Gay, Lesbian, Bisexual, Transgender and Intersex Information Service (DEFGLIS) for ADF members in uniform to participate in the forthcoming Sydney Mardis Gras parade.
I have engaged with the Vice Chief of the Defence Force and Head People Capability on this issue and advise that the attendance of ADF members in uniform at the Sydney Mardi Gras parade is authorised with the following conditions.
The first condition is that ADF members participating in the parade do so in accordance with Service and Defence protocols, these include formed body marching according with Service traditions and customs.
The second condition is that you liaise with the parade organisers to ensure that participating ADF members are positioned near to the front of the parade and at the rear of the NSW Police.
The third condition is that participating ADF members change out of uniform at the end of the parade.
Since ADF members’ attendance at the parade is voluntary I confirm that Defence will not pay travel expenses to facilitate participation.
Finally, I ask that you prepare an Administrative Instruction for ADF member’s attendance at the parade. The draft Administrative Instruction should be discussed with the Vice Chief of Defence Force prior to obtaining my final authorisation. Warrant Officer 1 Lynne Foster, RSM - Ceremonials - ADF is available to assist in the preparation of this guidance.
On 21 December 2012, the Department of Defence issued a media release stating:
ADF participation in Mardi Gras
21 December 2012 │ Media ReleaseAustralian Defence Force members will march in uniform at the Sydney Mardi Gras in 2013.
Defence personnel have participated in the Mardi Gras since 2008 but the volunteer contingent of soldiers, sailors and airmen and airwomen will march as a formed body for the first time in the Mardi Gras parade on 2 March 2013.
The decision coincides with the 20th anniversary of the removal of the ban on homosexuals serving in the military and demonstrates the ADF’s desire to reflect the community it serves.
Diversity is a strength and asset for today’s employers, and Defence is no exception. Workplace inclusion for all ADF members is a high priority for the organisation as it undergoes cultural change through the Pathway to Change strategy.
Defence is working on a number of initiatives to further enhance and support diversity in the ADF workforce, including an Ambassador Network and Diversity Strategy.
In addition, Air Force has recently introduced diversity handbooks for lesbian, gay and bisexual members and commanders, and Defence will look to roll this out for the rest of the organisation.
Twenty years after the removal of the restrictions on homosexual members, Defence continues to support and improve diversity in the Australian Defence Force.
Media Contact:
Defence Media Operations: (02) …Commencing on 8 March 2013, the applicant issued a series of press releases, reflecting material published on his webpage, which criticised the decision, published his own association with the Army Reserve and complained about his earlier counselling. The initial press release included the following:
Press Release: Defence shows hypocrisy with gay officer
…
“Defence is bending over at every opportunity to help gay members but has hauled me over the coals for expressing my religious and political beliefs,” Mr Gaynor said.
“I never ever spoke in my capacity as a Reservist but the Army still called me into my unit and ordered me to stop my political activities if I wanted to remain in the Reserves, contrary to Defence policy.”
“Defence even publicly stated that it was taking legal advice over potential administrative action against me, simply because I said that I would not allow my children to be taught by a homosexual.”
“It is clear from this that Defence is happy to accommodate the views of gay members but is actively discriminatory against Christian members who make public comments about their faith, even if it is not in uniform and has nothing to do with Defence policy.”
“Well, now I’ve had enough. If other officers are allowed to speak about Defence policy while they are in uniform, with the protection of the Chief of Defence Force, I deserve the same protection, especially when I am now just a Reservist.”
“I am happy to say what others believe privately but won’t mention because they are smarter than me and won’t jeopardise their careers. Defence’s policy directions on sex-change operations, the Mardi Gras and women serving in front-line combat roles are wrong.”
“The decision to pay for sex change operations should be overturned. It does not enhance Defence’s ability to protect Australia and most people would describe it as a completely unnecessary ‘capability cut’.”
“No soldier wants to be led by a commander that has voluntarily decided to have his balls cut off. No amount of politically-correct propaganda will change this fact. Unfortunately, Defence is deliberately putting soldiers in an uncomfortable position.”
“Australians would be appalled if they knew their taxes were being wasted by Defence in this way. They would be even more shocked if they knew Defence’s policy allowed gender-benders access to females showers and change rooms.”
“I imagine most women would be uncomfortable changing in front of a confused man who had protected, free access to their bathroom. It is a recipe for disaster.”
“Furthermore, the decision to allow soldiers to march in the Mardi Gras was offensive to many, many Australians. If Defence is truly equitable, it will now allow members to wear their uniform to any activity that promotes natural marriage.”
“Finally, the decision to allow women to serve in front line combat positions is a joke. It is nothing more than the use of Defence to engineer radical social change in society.”
“Unfortunately, former general, Jim Molan, confirmed today that this is exactly what Defence is doing. He said on Adelaide radio that the Defence hierarchy are trying to change human nature. I can only thank Jim Molan for letting the cat out of the bag,” he said.
Mr Gaynor added that it was not surprising that the wars in Afghanistan and Iraq had largely failed when Western armies across the world were preoccupied with such radical social engineering and were so politically correct.
“I am an intelligence officer. Not once, in my 15 year career, have I ever seen a Koran in a intelligence detachment. Anytime I have suggested it might be worthwhile understanding why Islamic beliefs lead to violence I have been ridiculed and rebuked.”
“Defence believes Islam is a religion of peace. That is why it has been more concerned about building schools in Afghanistan than trying to change what is taught inside them.”
“It is also why Defence has been silent about the growing Islamic population in Australia while its own soldiers are dying fighting adherents of Islam in Afghanistan.”
On 14 March 2013, the applicant issued another press release in a similar vein which said, in part:
Defence’s gender-bending preoccupation comes at the cost of a real equity issue: fair indexation
First came the news that Defence was funding sex-change operations. Of course, this could not go ahead without the all-encompassing bureaucratic machine springing into action. Now commanders have official policy advising them that those fearlessly embarking on ‘gender reassignment surgery’ are to have access to their affirmed ablution facilities.
Defence, struggling to deal with negative publicity surrounding years of alleged sexual assault has now opened the door for males to shower in the ladies bathroom – whether they like it or not.
Then Defence gave approval for its proud uniform to be paraded through the streets of Sydney during the Mardi Gras, sharing the road with pimps, prostitutes and purveyors of moral decadence. Good call.
The supposedly apolitical Australian Defence Force is now marching to the beat of a very political tune, drummed up by those who demand gay marriage and take pleasure in ridiculing Christianity.
…
Here is some cheap advice for Defence hierarchy that might free up time and money to address a real equity issue: fair indexation of military pensions.
Stop wasting resources trying to recruit women. They are not as strong as men and generally don’t want to join. Focus on the target audience – young blokes. You’ll get more bang for your recruiting dollar.
Also, if someone wants to go from Molly to Mandy let them do it in their own time and at their own expense. And it will stop scaring the soldiers.
Ditto for those who wish to attend the Mardi Gras.
Finally, it would be useful for Defence hierarchy to publicly support efforts to fairly index military superannuation. It is an issue that not only affects retired soldiers but today’s serving military personnel.
If the Defence leadership is really committed to fairness, equity and mateship, it will sort out military superannuation and leave gender-bending affirmative action to fringe loony groups, like the Greens.
I don’t hold my breath though. If the last decade has taught us anything, it is that Defence is able to embark on military operations without knowing what the mission is, what the objectives are, or even who the enemy is.
Common sense is missing.
That is why I am sure the next time we hear anything from Defence leadership about an unfair playing field, it will have nothing to do with increasing pensions and everything to do with reducing physical fitness standards for women.
On 22 March 2013, the Deputy Chief of Army wrote to the applicant in the following terms:
It has come to my attention that recent comments made by you in the public domain, are in direct contravention of a number of Defence policies and potentially, wider Commonwealth regulations and laws. Specifically, I refer to your comments of 23 January, 8 March and 14 March 2013. Such comments run counter to the significant efforts made by the ADF over recent years to eliminate discrimination and to encourage a diverse, harmonious workplace that reflects contemporary Australian society.
In short, Army does not share your views, which are both offensive and divisive, and not in the interests of Army or our people. I am disappointed that a Commissioned Officer, or indeed any Army member, would express such blatant disregard for the values and ethos that underpin our organisation. As the Deputy Chief of Army, I have a responsibility to protect Army’s long term interests and it is from this basis that I am compelled to act.
Effective immediately, you are to cease posting material in the public domain that identifies you as an Army Officer and which directly seeks to, or can be reasonably expected to, breach Defence policy, contravene ADF values, or which is otherwise not in the interests of Army. Further, you are to remove any such material from your website and social media sites insofar as it can be linked, in any way, to your military service.
By linking your military service to your comments, not only have your actions brought Army into disrepute at a time when the ADF is progressing a number of major policy reforms in the areas of equity and diversity, but your failure to heed the counsel provided to you by your chain of command in response to your comment on 23 January 2013 indicates to me that your personal values are not in line with those of Army, or the wider ADF. It is not my intention to prevent you from having an opinion, but when that opinion is linked to your military service and is fundamentally inconsistent with Defence policy and values, you should reconsider your employment options. I offer to you that, under these circumstances, the appropriate course of action may be for you to tender your resignation.
(Emphasis added.)
The applicant then commenced a series of internal review procedures within the Defence Force. His thesis was that the decision to permit uniformed participation in the Sydney Mardi Gras was “unlawful” and that, in any event, he could not be restricted from publishing what he saw fit while not in uniform and not on duty. His complaints extended to the conduct of those who marched in the Sydney Mardi Gras on 2 March 2013, those who sought the permission to do so, his Commanding Officer, the Deputy Chief of Army and CDF himself. The detail of those complaints does not require examination in the present proceedings but I shall mention them again briefly later.
The third issue arose from an acrimonious public exchange on social media in May 2013 with a transgender officer on the staff of the Chief of Army. I shall refer to the exchange in due course. Its intemperate, vitriolic and personally offensive character did not do credit to either of the participants. On the applicant’s evidence, the other officer was “formally counselled for unacceptable behaviour” in September 2013. As I shall discuss, the applicant’s public contribution to this unseemly fracas figured, with the other two issues, in the decision ultimately made to terminate his commission.
Apart from the three issues I have mentioned, which arose from the applicant’s personal resistance to acceptance of homosexuality or other sexual preferences of which he disapproved, the applicant also published material strongly critical of Government and ADF policy with respect to the conflict in Afghanistan in which he made statements linking the practice of Islam, historically and currently, with a culture of violence which directly threatened Australia. Those publications also featured in the decision to terminate his commission.
The formal process of termination was commenced by a Notice to Show Cause issued by the Chief of Army on 30 May 2013 and concluded with the Termination Decision issued by CDF on 10 December 2013. The applicant invoked a “Redress of Grievance” (“ROG”) procedure (the nature of which I shall discuss further) against the decision of 10 December 2013. That ROG commenced with the applicant’s Commanding Officer and, at the applicant’s request, was progressively referred up the Army and ADF hierarchy as it was successively unsuccessful to, finally, CDF himself. CDF dismissed that ROG (there were many others which need no detailed discussion) by the Redress Decision on 30 June 2014.
The nature of military service
The most recent case in this Court to examine the nature of military service is C v Commonwealth of Australia [2015] FCAFC 113 which applied a well-established principle that, in Australia at least, military service is not based upon a contract of employment (see e.g. The Commonwealth v Welsh (1947) 74 CLR 245 per Dixon J at 268).
Originally, members of the armed services held their entitlements or offices at the pleasure of the Crown (see Marks v The Commonwealth (1964) 111 CLR 549; Coutts v The Commonwealth (1985) 157 CLR 91 (“Coutts”)). However, military service in Australia is no longer based only on the notion of Crown prerogative (see e.g. Coutts per Deane J at 108-109). That service is regulated also (and now decisively) by statute, but not by any of the statutes which deal with the relations of employers and employees. It is subject to its own statutory code, which has been progressively expanded.
Section 16 of the Defence Act 1903 (Cth) (“the Defence Act”) when that Act was first made, provided:
16. Officers shall hold their appointments during the pleasure of the Governor-General, but the commission of an officer shall not be cancelled without the holder thereof being notified in writing of any complaint or charge made and of any action proposed to be taken against him, nor without his being called upon to show cause in relation thereto. …
The position is now governed in much more detail by the Defence (Personnel) Regulations 2002 (Cth) (“the Personnel Regulations”) made under the Defence Act (see s 124(1)(a) of the Defence Act).
Termination of an officer’s commission
Regulation 6(1)(g) of the Personnel Regulations provides:
6 Service
(1)An officer serves in the Defence Force in accordance with the following requirements:
…
(g) the officer’s service in the Defence Force may be terminated;
…
Chapter 9 of the Personnel Regulations deals with “Completion of the service obligation” and makes provision, first, for retirement or completion of a period of service. Part 2 of Chapter 9 deals with “Compulsory termination of service”.
Division 1 of Part 2 (regs 82 and 83) deals with situations where a member of the ADF becomes a permanent resident in another country, and redundancy. In each case the Chief of a member’s service may terminate the member’s service in the ADF.
Regulation 84 in Division 2 of Part 2 provides that, in the case of an officer absent without leave for more than three months, the Governor-General may terminate the officer’s service.
Regulation 85 then deals with termination of the service of an officer for other reasons. A number of such reasons (including medical unfitness, incompetence etc) are identified. Relevantly, for present purposes, reg 85 provides:
85 Termination of service of officer for other reasons
(1)The service in the Defence Force of an officer may be terminated, in accordance with this regulation, for any of the following reasons:
…
(d)the Chief of the officer’s Service is satisfied that the retention of the officer is not in the interest of:
(i)the Defence Force; or
(ii)the Chief’s Service;
…
(1A)Without limiting paragraph (1)(d), the Chief of the officer’s Service may be satisfied for that paragraph for reasons relating to the officer’s:
(a)…
(b)behaviour; or
(c)conviction of an offence or a service offence.
(2)The Governor-General may give the officer a termination notice:
(a)stating that it is proposed to terminate the officer’s service in the Defence Force; and
(b)stating the reason for terminating the service; and
(c)setting out particulars of the facts and circumstances relating to the reason for terminating the service that is sufficient to allow the officer to prepare a statement of reasons why the service should not be terminated; and
(d)inviting the officer to give the Governor-General a written statement of reasons why the service should not be terminated; and
(e)specifying a period of at least 28 days after the date of the notice as the period in which the officer may give the statement of reasons.
…
(4) If:
(a)the officer gives the Governor-General a statement of reasons in the specified period; and
(b)having considered the statement, the Governor-General is of the opinion that the reason for terminating the officer’s service:
(i)has been established; and
(ii)has not been affected by a change in circumstances since the termination notice was given to the officer;
the Governor-General must terminate the officer’s service in the Defence Force.
(5)The Governor-General must not terminate the officer’s service under this regulation in any other circumstances.
(6)If a delegate gives a termination notice to an officer, the delegate must not himself or herself terminate the officer’s service under this regulation.
Regulation 119 allows the Governor-General to delegate powers to officers of the three services above a stated rank. Regulation 85(6) operates in those circumstances.
The relevant delegations, made under s 119(1) of the Personnel Regulations in 2012, were in evidence. Only the Chief of Army or CDF could issue a termination notice under reg 85(2) to a person holding office at the rank of Major. The other of those same persons could terminate that officer’s service under reg 85(4).
In the present case, on 30 May 2013 the applicant was given a termination notice by the Chief of Army. Under the regime established by reg 85(1)(d), the Chief of the applicant’s service was required to be satisfied that the retention of the applicant was not in the interest of the ADF or not in the interest of the Army. In the present case, the Chief of Army personally formed the required satisfaction under reg 85(1)(d) and (1A) and, as delegate of the Governor-General, gave the termination notice permitted by reg 85(2).
Regulation 85(6) had the effect, therefore, that the Chief of Army could not act as the delegate of the Governor-General under reg 85(4). As the functions under reg 85(2) and (4) could not be performed by the same delegate, once the Chief of Army issued a termination notice to the applicant only CDF could terminate the applicant’s commission.
In the Termination Decision, CDF stated that he was satisfied about the matters in reg 85(1)(d)(ii) and reg 85(4)(b)(ii) – namely, that the retention of the applicant was not in the interest of the Army and that there had been no relevant change of circumstances since the termination notice was given to the applicant.
Regulation 7 imposes some further requirements when determinations under the Personnel Regulations are required. It states:
7 Criteria
(1)This regulation applies to a person who is required to make a determination or decision under these Regulations.
…
(2)The person must have regard to the following matters when determining the matter or making the decision:
(a)the ability of the relevant Service to carry out operations that it is carrying out or may be required to carry out;
(b)the size and composition of the relevant Service;
(c)the organisational effectiveness of the relevant Service;
(d)the training of the relevant Service;
(e)the need to ensure the availability of an adequate supply of suitable officers and enlisted members in the relevant Service;
(f)the skills, experience and standards of behaviour and conduct required for the proper performance of duties in the relevant Service;
(g)the management of officers and enlisted members in the relevant Service;
(h)the career advancement needs of officers and enlisted members in the relevant Service.
(3)If the decision or determination relates to an individual, the person must consider whether, having regard to the individual’s past and present conduct, the individual is of good character.
Those matters were all addressed also in the Termination Decision made by CDF on 10 December 2013.
In Buck v Bavone (1976) 135 CLR 110, Gibbs J said (at 118-119):
… It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. …
Similar considerations apply to the “satisfaction” referred to in reg 85(1)(d) and (1A) and to the opinion referred to in reg 85(4).
In Shand v Chief of the Army [1998] FCA 265, Burchett J dealt with the circumstance of a soldier whose enlistment was terminated under a similar, earlier, regime. His Honour described the regime as follows (at 1):
Section 44(1) of the Defence Act 1903 provides for the discharge of soldiers by decision of the Chief of the Army (previously the Chief of the General Staff) for prescribed reasons. Reasons are prescribed by regulation 176(1) of the Australian Military Regulations, the making of which was empowered by s 124 of the Defence Act. Many reasons are prescribed, of which only that contained in paragraph (n) is directly in question in the present matter:
“The Chief of the Army is satisfied that the retention of the soldier in the Army is not in the interest of Australia or of the Army.”
Burchett J said (at 6):
Given the material before him, it was for the delegate to decide whether he was satisfied of the matter upon which a decision under the regulation had to turn, that is, “that the retention of the soldier in the Army is not in the interest of Australia or of the Army.” It is not, of course, any part of the Court’s function to reach that decision. Provided the decision was open to be made upon the material, the making of it was for the delegate. In my opinion, the decision was plainly open.
The regulation is framed in terms which make the test the satisfaction of the Chief of the Army, or of his delegate. Cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277.
The issue upon which satisfaction must be attained by the decision-maker is whether the retention of the soldier in the Army is not in the interest of Australia or of the Army. That raises broad questions of fact and of evaluation of the facts. Necessarily, there is a wide ambit within which the decision-maker was entitled to come to a personal view. Provided a soldier’s actions or attributes are capable of being seen as imposing an undesirable burden on the Army, or are capable of being seen as affecting the morale or well-being of other service personnel, or as in other ways affecting adversely the efficiency or the reputation of the Army, it would not be possible for the Court to find an error of law merely because (if it were the case) the Court might not itself have reached the same conclusion.
To similar effect, dealing with the regime established by the present Personnel Regulations, in Graham v Deputy Chief of Air Force [2004] FCA 1377, Heerey J said (at [39]):
39… The power to terminate when the Chief of Service is satisfied that the retention of the enlisted member is not in the interests of the Service is expressed in quite general terms. While sub-regs (2), (3) and (4) require the enlisted member to be given a fair opportunity to answer the alleged facts and circumstance which might give rise to the requisite satisfaction, the regulations say nothing of the kind of facts and circumstances which might exist in any particular case.
and (at [40]):
40… The Chief of Service or his or her delegate is in the best position to decide whether retention of a member is in the interests of that Service, especially having regard to the elements of trust, loyalty and confidence which are fundamental to military service. It would be quite impossible to specify in advance the infinite variety of circumstances which might cause the Chief to reach that state of satisfaction in relation to a particular individual. …
More recently, in Millar v Bornholt (2009) 177 FCR 67, Logan J referred to the need for:
73… a principled restraint on a court conducting judicial review lest the appearance be given that, in respect of this aspect of the making of value judgments in relation to the Defence Force, command has impermissibly passed from those to whom that task has been consigned by the Governor‑General under parliamentary authority to the Judiciary.
The last three judgments to which I have just referred concerned enlisted men or women, rather than officers. However, the principles referred to and applied in those three cases are no less important when the service of an officer has been terminated; indeed on one view, it is more important for the courts to show restraint in such a case.
In the present case, those statements of principle bind me as a matter of comity.
Command of the ADF
CDF is appointed under s 9 of the Defence Act and has command of the ADF. The Chief of Army is also appointed under s 9 of the Defence Act.
Sections 8 and 9(2) of the Defence Act provide:
8Powers of Minister in relation to Defence Force
The Minister shall have the general control and administration of the Defence Force, and the powers vested in the Chief of the Defence Force, the Chief of Navy, the Chief of Army and the Chief of Air Force by virtue of section 9, and the powers vested jointly in the Secretary and the Chief of the Defence Force by virtue of section 9A, shall be exercised subject to and in accordance with any directions of the Minister.
9 Command of Defence Force and arms of Defence Force
…
(2)Subject to section 8, the Chief of the Defence Force shall command the Defence Force, and the service chief of an arm of the Defence Force shall, under the Chief of the Defence Force, command the arm of the Defence Force of which he or she is service chief.
Section 9A of the Defence Act deals with “Administration of Defence Force” and specifies a role for the Secretary of the Department of Defence. Section 9A(1) and (2) provide:
9AAdministration of Defence Force
(1)Subject to section 8, the Secretary and the Chief of the Defence Force shall jointly have the administration of the Defence Force except with respect to:
(a)matters falling within the command of the Defence Force by the Chief of the Defence Force or the command of an arm of the Defence Force by the service chief of that arm of the Defence Force; or
(b)any other matter specified by the Minister.
(2)Instructions issued by or with the authority of the Secretary and the Chief of the Defence Force in pursuance of the powers vested in them jointly by virtue of subsection (1) shall be known as Defence Instructions (General).
In the present case it will be necessary to consider the terms and effect of some Defence Instructions (General) (“DI(G)”).
The ADF is a disciplined force. Commands (i.e. lawful commands) must be obeyed. There is separate mechanism for enforcement of those matters contained in the Defence Force Discipline Act 1982 (Cth) (“the Defence Discipline Act”) which creates a number of “service offences”, which are criminal in character. Section 14 of the Defence Discipline Act provides:
14Act or omission in execution of law etc.
A person is not liable to be convicted of a service offence by reason of an act or omission that:
(a) was in execution of the law; or
(b) was in obedience to:
(i)a lawful order; or
(ii)an unlawful order that the person did not know, and could not reasonably be expected to have known, was unlawful.
Amongst the service offences created are disobeying a lawful command and failing to comply with a general order. Sections 27 and 29 provide:
27Disobeying a lawful command
(1)A defence member is guilty of an offence if:
(a)a person gives the member a lawful command; and
(b)the person giving the command is a superior officer; and
(c)the member disobeys the command.
Maximum punishment: Imprisonment for 2 years.
(2)Strict liability applies to paragraphs (1)(b) and (c).
Note:For strict liability, see section 6.1 of the Criminal Code.
(3)It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, that the person who gave the command was a superior officer.
Note:The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.
(Emphasis in original.)
…
29 Failing to comply with a general order
(1)A person who is a defence member or a defence civilian is guilty of an offence if:
(a)a lawful general order applies to the person; and
(b)the person does not comply with the order.
Maximum punishment: Imprisonment for 12 months.
(2)An offence under subsection (1) is an offence of strict liability.
Note:For strict liability, see section 6.1 of the Criminal Code.
(3)It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, of the order.
Note:The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.
(Emphasis in original.)
The term “general order” is defined by s 3, as follows:
general order means:
(a)a Defence Instruction (General), a Defence Instruction (Navy), a Defence Instruction (Army) or a Defence Instruction (Air Force);
(b)any other order, instruction or directive issued by, or under the authority of, the Chief of the Defence Force or a service chief; or
(c)a general, standing, routine or daily order in force with respect to a part of the Defence Force.
However, there are important limits on the application of the Defence Discipline Act to members of the various Reserves which it is necessary to identify.
Members of the Army Reserve are not obliged to render continuous full time service except in certain circumstances referred to in s 50 of the Defence Act, none of which applied to the applicant at the relevant time.
The Defence Discipline Act applies to defence members and defence civilians. Section 27 (set out above) applies to a defence member and s 29 (also set out) applies to a defence member or a defence civilian. At the relevant times (i.e. when he published the various statements to which exception was taken), the applicant was neither a defence member nor a defence civilian. Section 3 of the Defence Discipline Act defines each of those terms as follows:
defence civilian means a person (other than a defence member) who:
(a)with the authority of an authorized officer, accompanies a part of the Defence Force that is:
(i)outside Australia; or
(ii)on operations against the enemy; and
(b)has consented, in writing, to subject himself or herself to Defence Force discipline while so accompanying that part of the Defence Force.
…
defence member means:
(a)a member of the Permanent Navy, the Regular Army or the Permanent Air Force; or
(b)a member of the Reserves who:
(i)is rendering continuous full-time service; or
(ii)is on duty or in uniform.
In particular, when he did each of the things which, in combination, led to the termination of his commission the applicant was not “on duty or in uniform”.
At one point in time, the applicant was charged with a service offence in relation to some of the public statements which were later taken into account when deciding to terminate his commission, but the charge did not proceed and it is clear that he had a good defence to it. Part of the applicant’s case is that similar immunity applied so far as reg 85 is concerned but that proposition is, so far as it goes in that simple form, untenable. Regulation 85 is not confined in its potential operation to consideration only of conduct whilst on duty or in uniform.
The fact that the applicant was not liable to criminal prosecution or punishment for his behaviour under the Defence Discipline Act has no bearing on the availability of the procedures under reg 85. If he had been convicted of a service offence that is a matter which might be taken into account under reg 85(1A)(c) but the absence or unavailability of such a conviction is otherwise beside the point.
Redress of Grievance procedures
Regulation 75 of the Defence Force Regulations 1952 (Cth) provides a detailed procedure for complaints by members of the ADF about certain decisions which affect them. The procedure extends to complaints about a termination decision under reg 85(4) of the Personnel Regulations, but not to a termination notice under reg 85(2) of the Personnel Regulations. A complaint must be made in writing and, in the first instance, to a member’s commanding officer. If not satisfied with the decision of a commanding officer, the member may refer it to the Chief of the relevant service under reg 82 of the Defence Force Regulations and then, if again not satisfied, to CDF under reg 87 of the Defence Force Regulations. Some delegations are permitted (reg 93 of the Defence Force Regulations).
In the present case, the applicant made such a complaint against the Termination Decision to his Commanding Officer, and then referred it to the Chief of Army (where it was considered by a delegate) and then to CDF. CDF’s rejection of the complaint on 30 June 2014 is the Redress Decision I referred to earlier.
Logan J examined the historical origins of the ROG procedure in Millar v Bornholt. His Honour described it (at [32]) as “one of the checks and balances within a disciplined armed force”. The applicant showed a propensity to use the procedure to make complaints about a variety of matters with which he was dissatisfied, but there is no doubt that it was a specific, and important, source of review in relation to the Termination Decision even if it resulted, finally, in further consideration of that issue by CDF himself. The importance of the separate existence of this right of review is the reason why I am satisfied I should not impose the time limit in the ADJR Act against the Termination Decision. I am a little surprised that the point was taken at all.
When the ROG against the Termination Decision reached CDF, at the applicant’s instigation, the applicant suggested that CDF was disqualified from dealing with the ROG and that it should be referred to the Governor-General for consideration. I am satisfied that this suggestion was misconceived. The procedure is an entirely statutory one. Although some limited delegations are possible they would not permit the ROG to be referred by CDF to the Governor-General. The only consequence of CDF refusing to deal with the ROG would have been delegation to an officer of the Army not below the rank of Brigadier. The delegate of the Chief of Army held that rank. Consideration of the ROG at this level in the ADF and Army hierarchy had, therefore, already occurred.
Defence Instructions and policies
Gay and lesbian members of the ADF have been permitted to serve openly for over 20 years, since 1992. DI(G) PERS 50-1 is a DI(G) made on 18 October 2001 which states the policy for the ADF about “Equity and Diversity in the Australian Defence Force”. Some of the statements within it are the following:
EQUITY AND DIVERSITY IN THE AUSTRALIAN DEFENCE FORCE
PURPOSE
1. The purpose of this instruction is to state the Defence policy on equity and diversity. All personnel are to comply with the principles of equity and diversity.
…
POLICY
3. The Australian Defence Force (ADF) has made a commitment to promote equity and diversity in the workplace and in its management practices. The aim of promoting equity and diversity is to enhance operational capability and effectiveness in order to achieve the Defence mission through the development of fair and inclusive workplaces.
…
5. Equity and diversity apply to all personnel, ADF and APS, as good management practice and Government policy.
…
PRINCIPLES OF EQUITY AND DIVERSITY
7. Equity and diversity encompass the concept of fair treatment and that everyone should be given the opportunity to make the most of their talents and abilities. An equitable and diverse environment will be achieved through the application of the following basic principles:
a.treating each other with respect and dignity;
b.recognising that all people are different and valuing differences;
c.using the different contributions that people can make to the team;
d.making judgments genuinely based on fairness and merit;
e.eliminating artificial, unfair and inappropriate barriers to workplace participation;
f.providing appropriate means to monitor and address discrimination and harassment;
g.providing opportunities for flexibility when meeting organisational requirements; and
h.consulting people on policies and decisions that affect them.
EQUITY AND DIVERSITY IN THE AUSTRALIAN DEFENCE FORCE
…
9. Diversity in the workplace means creating an inclusive environment that respects, values and utilises the contributions of people of different backgrounds, experiences and perspectives. Diversity relates to gender, age, language, ethnicity, cultural background, sexual orientation, religious belief and family responsibility. Diversity also refers to the ways we are different in other respects such as educational level, work experience, socio-economic background, personality profile, geographic location, marital status and whether or not one has carer responsibilities. Diversity seeks to capitalise on the diverse talents and skills of all personnel.
EQUITY AND LEADERSHIP
10. Equity is an important element of operational capability and good leadership practice. The Defence Personnel Executive has published guidance in the form of instructions and booklets for commanders, leaders, managers and policy makers. They provide the background information necessary to support a pro-active approach to the pursuit of equity in Defence.
…
ROLES AND RESPONSIBILITIES
…
17. Everyone in Defence has a right to be treated with respect, courtesy and without harassment. It is the responsibility of all personnel to provide a work environment free from unacceptable behaviour and to report equity and diversity issues to their immediate supervisor so that corrective action can be taken.
…
Whatever personal views may be held by individual members of the ADF it is apparent that this policy states a standard of behaviour which is expected from all those members.
DI(G) ADMIN 08-1 was issued on 5 October 2007. It deals with “Public comment and dissemination of official information by Defence personnel”. It states that it applies to “all Defence personnel”, a term which is defined to include all ADF members. In a summary caption prominently displayed before the particular, detailed, instructions are set out, there appears the following:
PUBLIC COMMENT AND DISSEMINATION OF OFFICIAL
INFORMATION BY DEFENCE PERSONNELDefence personnel must treat official information as confidential. Defence personnel must not provide public comment, official information or images to individuals or organisations external to Defence without adhering to the procedures detailed in this Instruction. Public comment and dissemination of official information includes, but is not limited to, media releases, interviews, briefings, speeches, comments at seminars and conferences, letters to editors, articles in journals or magazines, publication of books or papers and imagery as original self-contained works, video newsletters, ‘home videos’, documentaries, publication of information and imagery on the internet, mobile networks including SMS, email and attachments, and other electronic media, ‘blogs’, ‘chat rooms’, podcasts, text messaging and all forms of ‘new media’. It also includes discussion, personal opinion or correspondence with members of the public on official information. Official information is defined in annex A to this Instruction.
(Emphasis in original.)
The detailed instructions include:
SCOPE
1. This Instruction applies to all Defence personnel. For the purpose of this Instruction, this includes all Australian Defence Force (ADF) members, …
…
3. Defence personnel must comply with this Instruction. …
…
INTRODUCTION
…
8. While Defence encourages Defence personnel to engage with the public, the information they provide must be coordinated, agreed and authorised. …
9. To ensure that Defence’s reputation is not damaged by well-intentioned but ill-timed comments that disregard wider Defence issues, all public engagement is to be carefully managed. …
10. … Comments and communication that might once have been regarded as private or personal increasingly find their way into the public domain via media such as emails and blogs. Understanding this shift is critical if Defence personnel are to play a role in promoting and protecting the organisation.
11. … Defence personnel must remain aware of their obligations to protect sensitive and classified information and their responsibilities to promote and protect Defence, in both their official and their unofficial communication. …
…
PRINCIPLES
…
18. When making public or media comment, Defence personnel must distinguish carefully between personal and official views in order to avoid any mistaken perception that personal comment is in fact an official comment. In particular, Defence personnel must ensure that they preserve the apolitical standing of the Defence organisation and do nothing which might place in doubt the role of Defence in effectively implementing Australian Government policy.
…
20. … When engaging in private comment, online or electronic discourse and transmitting information or imagery either in Australia or overseas, all Defence personnel must consider the potential impact of that information reaching the public domain.
…
(Emphasis in original.)
It is well known that a series of public scandals over recent years have assailed the reputation of the ADF. Investigations ensued. Some were carried out by external enquirers; some were the subject of enquiry and report within the ADF and the Department of Defence. On 10 April 2012, CDF and the Secretary of the Department of Defence jointly published a document entitled “Pathway to Change: Evolving Defence Culture”. This document was described as a strategy for realising a programme of cultural change within the overall Australian Defence Organisation. Although not having the legal status of a DI(G), this document may be understood as an important, and public, statement of Defence policy. A few selected passages will sufficiently illustrate the tone:
Pathway to Change:
Evolving Defence Culture…
2 Defence’s rich history is a well from which we continue to draw
…
2.2Retaining our pride and our standing means making some fundamental changes
The first step to solving the problem is to accept that there is a problem.
In 2011 the Government called for, and Defence initiated, several independent Reviews to answer questions about the attitudes towards and treatment of women in Defence; our systems of accountability; grave misconduct perpetrated by some and implicitly condoned by others; and the causes of such behaviour.
The Reviews point to opportunities to improve our systems and processes and also evolve our cultures. These Reviews remind us that the Australian public has high expectations of our behaviour.
There are those who would say, ‘those incidents are about a few bad apples’. But we cannot afford to subscribe to such a view; for that would imply that they are unsurprising – even routine.
It is not an acceptable state for actions that affect the safety and wellbeing of our people, and compromise our capability, to be in anyway regarded as ‘normal’. We should be surprised, angered, embarrassed and saddened – every time there is a revelation about unconscionable behaviour by a member of the Defence community.
Our reaction should be, ‘how could that have happened?’ and not, ‘of course these things happen’.
We need to develop the instincts within Defence that always lead us towards the right judgements. Systems, processes and rules help, but we need to develop good habits of thinking and good reflexes in our actions so that we default to the most appropriate way of working with others and dealing with challenges.
…
3Leadership and accountability: change starts with leadership from the top and throughout
…
The Pathway to Change speaks to all in the organisation, and asks each individual to hold him or herself to account for their actions. However it has a particular message for anyone in any type of leadership position: you have a particular responsibility to model agreed values and behaviours, to do your utmost to ensure that those in your charge do likewise, and to take seriously any signs that there are problems that need to be addressed. Leaders will be held especially accountable for how they exercise their authority in this respect.
…
3.2Defence’s leadership will be more inclusive than in the past
Defence has made good progress in bringing more women into our organisation and providing opportunities to serve and progress in a variety of roles. Noticeable gaps remain however, in the representation of women across senior leadership positions. This has important implications for both our culture and our capability.
…
4Values and behaviours: Defence will re-consider its respective values and behaviours and draw together those we should hold in common
…
4.3Defence’s values and behaviours will infuse our education and training programs
…
Understanding of equity and diversity in our organisation requires special attention. The nature of warfare and its physiological demands in the past, has meant that men predominated in the armed forces. But we know that despite some physiological demands remaining constant, the character of warfare has changed and, as importantly, social norms have evolved dramatically.
The Review findings reveal worrying attitudes that we must reshape. First, we sometimes take group identity and loyalty too far so that it translates into an ‘us’ and ‘them’ mentality. Defence must be inclusive, we must recognise the strength that comes from collaboration and teamwork, and not division and exclusion. Second, evidence from the Review of the Treatment of Women at ADFA finds that a significant minority of people interviewed wrongly believe that Defence operates on a quota system for women, and this affects how they regard and relate to their peers in a negative way.
We need to be absolutely unambiguous: inclusivity and diversity are crucial to Defence’s ability to operate at peak performance and demonstrate maximum capability. The Pathway to Change will tackle unfair treatment. For example, in line with Review recommendations we will deliver unconscious bias training to the Senior Leadership Group. In responding to the particular concerns about incidents at ADFA, we will do a much better job of educating staff deployed there on how to support women and minorities better, including by identifying and addressing any issues speedily and appropriately.
…
9Implementation will be led from the top, with the cultural result being realised over five years
…
9.2Implementation will require up to three years of dedicated work, and we will feel the cultural effects over one to five years
Implementation will commence immediately, and where possible will be front-loaded so that we can achieve greater change sooner.
…
There seems little doubt that the authors of the document (who included CDF, General Hurley who terminated the applicant’s commission) were striving for a paradigm shift in attitudes. This was a clear example of a deliberate policy initiative which had moved beyond any question of debate about its essential premises and had entered an implementation stage. The applicant’s behaviour was, in due course, assessed for his co-operation with initiatives of this sort. Those are quintessentially policy questions where the principles to which I referred earlier must be applied. The assessments of compatibility with the interest of the Army which were brought to bear on the applicant’s conduct were judgments for the delegates of the Governor-General to make, not the courts.
Shortly after the publication of the Pathway to Change policy, on 23 July 2012, the Chief of Army published CA Directive 15/12 “Army Implementation Plan for the Removal of Gender Restrictions”, which commenced as follows:
1. Army’s combat capability and ability to meet Government directed outcomes is enhanced by the diversity of its people. A robust and agile Army therefore relies on every one of its people having the opportunity to contribute to their full potential. Gender diversity across all employment categories is therefore essential to maintain a competitive advantage now and into the future.
2. Current Government policy precludes the employment of women in Army roles that involve ‘direct combat duties’. On 27 Sep 11, the Minister for Defence announced that all roles would be open to women within five years. In order to implement this change, Army will establish a framework for the graduated integration of women into combat roles that nests with the Government’s five year plan …
and concluded:
19. Enabling the integration of women into combat roles is a positive step towards improving Army capability. Integrating women into combat roles will require cultural reform and strong leadership to ensure that women are afforded the opportunity to perform within those roles. Army is very proud of the contribution women provide, and removing gender restrictions will enhance the diversity of Army’s workforce, inherently increasing our competitive advantage and combat effectiveness.
DI(G) ADMIN 08-2 was issued on 16 January 2013, shortly before the first of the applicant’s publications. It dealt with “Use of social media by Defence personnel”. I am satisfied that this DI(G) applied to members of the Army Reserve when not on duty. So far as members of the ADF were concerned (i.e. apart from Defence civilians and others) the DI(G) was addressed to “Defence personnel”, a term defined, in part, to include “all Australian Defence Force members”.
Separately, the term “Defence member” was defined by reference to s 3 of the Defence Discipline Act, but that was clearly for a different purpose and was referable to those parts of the DI(G) where the term “Defence member” was used – e.g.:
POLICY STATEMENT
6. … it should be noted that section 60 of the DFDA provides that a Defence member is guilty of an offence if the member does an act, or omits to perform an act, that is likely to prejudice the, discipline of, or bring discredit on, the Defence Force.
More relevantly for present purposes, this DI(G) ADMIN 08-2 stated:
USE OF SOCIAL MEDIA BY DEFENCE PERSONNEL
INTRODUCTION
1. This policy provides guidance on the use of social media by Defence personnel for the purpose of public engagement and to regulate the use of social media by Defence personnel where such use poses a reputational risk to Defence.
Within the Defence context, social media is defined as:
Digital tools that enable communication and sharing across the internet and that allow for the creation of user-generated content.
…
POLICY STATEMENT
…
9. This policy covers all official communication using social media, as well as private activities in social media where an individual can be identified as being a Defence employee or member of the ADF.
10. All Defence personnel must comply with the mandatory requirements of this policy. A mandatory requirement of this policy is identified through the use of the word must.
11. The mandatory requirements of this Instruction constitute a general order to Defence members for the purposes of the DFDA. Non-compliance with any mandatory requirement may result in disciplinary action being taken in accordance with the DFDA.
…
COMPLIANCE
19. In line with section 60 of the DFDA and the Public Service provisions referred to in paragraphs 5., 6. and 7. above, 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.
…
(Emphasis in original.)
Although the last of these instructions refers to s 60 of the Defence Discipline Act, I am satisfied that it was not intended simply to engage, or repeat, those provisions. Section 60(1) of the Defence Discipline Act provides:
60Prejudicial conduct
(1)A defence member is guilty of an offence if the member does an act that is likely to prejudice the discipline of, or bring discredit on, the Defence Force.
Maximum punishment: Imprisonment for 3 months.
The instruction in [19] of DI(G) ADMIN 08-2 was clearly intended to operate consistently with this prohibition but not to be similarly confined. That is clear from [9] in the DI(G). As will be seen shortly, the applicant’s publications were immediately thought to infringe this DI(G), and he was instructed to desist, but to little avail.
Finally, after some of the applicant’s publications, but before others, on 13 March 2013 CDF and the Secretary of the Department of Defence jointly published “A Message from the Secretary and the Chief of the Defence Force”, which included the following:
…
‘Diversity’ is broader than the labels of gender, age, language, ethnicity, cultural background, disability, sexual orientation and religious beliefs; it is a way of thinking and an approach to delivering the best results. Through diversity we gain the varied perspectives needed to tackle complex problems and come up with innovative solutions. Recognising this Defence is committed to creating an inclusive environment which values, respects and draws on the diverse backgrounds, experiences, knowledge and skills of our people.
A robust and agile Defence organisation depends on every person in it having the opportunity to contribute fully. Everyone within Defence has a role to play in making this a reality. We must walk the talk and ensure that we encourage diversity at every level, every day.
Our day to day activities must promote a fair, equitable, supportive and inclusive working environment that enables all Defence people to perform at a high level and encourages them to stay with us longer.
…
It is expected that all leaders in Defence will champion diversity. To be champions for diversity, all leaders, commanders and managers will:
Ÿ advocate the important role of gender diversity in helping to increase organisational performance;
Ÿ be an exemplar of positive and visible change by acting as a role model for all staff in regard to diversity;
Ÿ regularly communicate the benefits of diversity and its role in organisational success across Defence;
Ÿ support initiatives that increase the representation of, and career pathways for, women in the Defence organisation; and
Ÿ assist in identifying and implementing targeted diversity initiatives.
In the context set by the regulatory framework, including the relevant instructions, and having regard to the published policies of the commanders of the ADF, and the Army, greater and more detailed attention can now be given to the course of events which led to the termination notice.
The applicant’s first publications – January 2013
I earlier set out a tweet by the applicant on 23 January 2013 and his media release on 24 January 2013. The applicant’s position about those matters involves a number of propositions, which were maintained, in large part, in relation to the events which followed.
One argument, with which I will deal later, is that these and other public comments were protected from any form of restriction because they were constitutionally protected. That is, either they amounted to the exercise of the applicant’s religion which was protected by s 116 of the Constitution or they were an exercise of a “right” to freedom of political communication which was protected by an implication arising from the Constitution (see e.g. Coleman v Power (2004) 220 CLR 1 (“Coleman”).
Contentions of this kind were relied on, expressly or impliedly, over the course of events to bolster an argument by the applicant, which was put to his superiors and repeated in this Court, that instructions that he should refrain from public comment were themselves unlawful, as was the permission granted by CDF for members of the ADF to march in the Sydney Mardi Gras.
A defence of this kind involves a high risk strategy. I assume it to have been a calculated course of defiance. A challenge to the lawfulness of the conduct of CDF, and those who gave direct instructions to the applicant about his conduct, leaves little room for misunderstanding about the level of co-operation of the applicant with the cultural changes announced over the previous few years. He commenced to openly and publically challenge and ridicule those changes, asserting a moral and legal right to do so, regardless of any instruction to the contrary.
In relation to the two publications, on 23 and 24 January 2013, the applicant also protested in the present proceedings that it was not he who published his ongoing connection with the ADF; rather it was the ADF itself in a comment about his publications with which I am concerned. His thesis was that as he was not on duty, not in uniform and had not mentioned his current status with the ADF, he could say what he wished and any instruction to the contrary was unlawful.
Part of this reasoning was mixed with a proposition that the applicant’s conduct whilst not on duty and not in uniform was not liable to prosecution under the Defence Discipline Act. That may be accepted for present purposes, but the present case is not concerned with matters arising under the Defence Discipline Act. As I earlier explained, the field of operation of the Defence Discipline Act does not exhaust or constrain the matters which may arise under reg 85 of the Personnel Regulations, or the grounds upon which an officer’s commission may be terminated by reason of reg 85(1)(d).
2.Diversity and Inclusion Statement of 13 Mar 13
[Annexures omitted.]
ANNEXURE C
Minute
Chief of the Defence Force
CDF/OUT/2013/1566
MAJ B.W GAYNOR
TERMINATION OF SERVICE DECISION
References:
A.Statement of Reasons – … MAJ B.W. Gaynor of dated 27 June 2013 with enclosures
B.Executive Summary to Response to CDF Minute Regarding NTSC of 22 September 2013 with enclosure
C.Notice to Show Cause for Termination of Appointment as an Officer in the Australian Army of 30 May 2013 with enclosures
D.Minute CDF/OUT/20131142 Notice to Show Cause for Termination of Appointment of 22 August 13 with enclosures
1. I have decided that your service in the Defence Force is to be terminated with effect 13 Jan 14, pursuant to Regulation 85(1)(d)(ii) of the Defence (Personnel) Regulations 2002 (the Regulations).
2. I have considered your Statement of Reasons of 27 Jun 13 (reference A) and subsequent additional material you provided on 22 Sep 13 (reference B). I am satisfied that the reason for terminating your service (that your retention is not in the interests of the Australian Army):
a.has been established, based on the facts and information contained in the termination notice issued by Chief of Army and dated 30 May 13 (reference C), and
b.has not been affected by a change in circumstances since that notice was given to you.
Findings of material fact
3. The Notice to Show Cause for Termination of Appointment as an Officer in the Australian Army (‘Termination Notice’) issued to you by the Chief of Army on 30 May 13 (reference C) alleged that your conduct while posted as an Instructor at the Defence Intelligence Training Centre has been unsatisfactory and unacceptable, in particular:
a.your conduct in making public comment and providing official information whilst a member of the Army was not in compliance with Defence policy;
b.your conduct did not cease after being ordered to do so on the basis that your public comment was inconsistent with Defence Policies; and
c.you did not remove material from social media sites and your website that links your comments to the Australian Army and Defence.
4. After receiving your response to reference A, I advised you (at reference D) that I intended to give greater weight to my view that your public comments demonstrate attitudes that are demeaning of, and demonstrate intolerance of, homosexual, transgender persons and women, and are contrary to the policies and cultural change currently being undertaken in the Australian Army and Australian Defence Force (ADF). Further, that your comments critical of ADF and government policy demonstrate a conflict of interest between your personal interests and your obligations to serve the Army that cannot be reconciled. I gave you an opportunity to address these matters in an additional submission to me, and you did so in reference B.
5. My letter to you conveyed that my concern was with the way you expressed your personal interests, and should not be interpreted, as you appear to intimate in your response, that Christian beliefs and military service are incompatible. I have carefully considered the facts and circumstances identified in the Termination Notice and its enclosures, and both of your submissions in response and have assessed your behaviour, not your religious beliefs.
6. I am satisfied that a significant amount of the material enclosed with the Termination Notice, being material from your personal web blog, twitter and facebook posts, is critical of the ADF and government policy and decisions, particularly the support offered to homosexual and transgender members of the ADF and the decision to permit women to serve in combat roles. I am satisfied that the manner in which your disagreement with those policy decisions is publicly expressed is generally intemperate, disrespectful and does not accord with the standard of behaviour expected of any Defence member, and particularly an Officer of your rank and experience.
7. I accept that you were not on duty, in uniform or performing any service for the Army at the time of your comments on these matters, however you were an active Army Reserve member, and on several occasions clearly identified yourself as such in the online material including in enclosures 2, 3 and 4 of the Termination Notice. I note that your duty status is significant for purposes such as consideration of proceedings under the Defence Force Discipline Act 1982, as you identify in your submissions to me. However, for the purposes of this decision pursuant to the Defence (Personnel) Regulations 2002, it is your behaviour generally which is at issue in deciding whether your retention is in the interests of the Australian Army.
8. The content of your online posts regarding these issues, as enclosed with the Termination Notice, is contrary to the policies and cultural change initiatives currently being implemented within Army and Defence and is inconsistent with the standards of behaviour expected of all Defence members. Your opinions are expressed in a way that is contrary to the standards of online public commentary expected of a serving ADF member, regardless of duty status. The manner in which you have publicly articulated your views on the support offered to homosexual and transgender members of the ADF and the decision to permit women to serve in combat roles demonstrates intolerance and disrespect for particular individuals and for ADF and government policy.
9. In making these findings, I distinguish between your holding of a personal opinion, the mere fact of which I do not consider necessarily inconsistent with the standards required of Defence members, and your conduct in expressing personal opinions publicly in an inappropriate and disrespectful manner, in circumstances that identify you as a member of the Australian Army Reserve. I consider that conduct in expressing personal opinions is inconsistent with expected standards of behaviour, particularly where it takes place in the public domain. I accept your submission that your statements are informed by your personal beliefs and your faith. However I do not accept your submission that administrative (and disciplinary) action commenced against you shows intolerance of your opinions and demeans the right of ADF members to practice their faith because such action is directed to your behaviour and the manner in which you have publicly expressed your beliefs, rather than the beliefs themselves.
10. I emphasise that this decision is not about beliefs or faith. It is about your personal conduct whilst a member of the Army Reserve. Defence recognises that different views exist, but demands tolerance and respect in order to preserve ADF capability. This includes the manner in which alternative views to existing ADF and government policy is expressed. Defence Instruction (General) 50-1 Equity and Diversity in the Australian Defence Force (reference C in reference C of this Statement of Reasons) establishes this as the standard of behaviour for all Defence members, notwithstanding duty status, as does the Diversity and Inclusion statement and current cultural reform initiatives. It is expected that leaders in the ADF support and implement this approach and that all members behave according to these standards.
11. I note the appropriateness of the manner in which you had publicly expressed views was brought to your attention by your Commanding Officer in his conversation with you on 6 February 2013 (see enclosure 3, attached to enclosure 1 to reference B). I also note that the former Deputy Chief of Army brought this standard and the responsibility of Officers to uphold Army values and ethos in their behaviour specifically to your attention on 22 March 2013 (enclosure 9 to reference C). I am satisfied that you did not subsequently modify your behaviour to reflect the standard of public behaviour expected of members of the Australian Army and especially of Officers, including by removing the online material as directed by the former Deputy Chief of Army.
12. You have raised concerns of double standards being applied in that a homosexual member of the ADF spoke publicly, and critically, of his treatment by Army without being punished. My decision in relation to that matter was made on information pertinent to the particular individual’s circumstances and it is not relevant to your case. Similarly, my decision with respect to your continued service in the Defence Force is made on the basis of the facts and circumstances particular to your conduct.
13. I accept that you have served in the Army since 1997 in both permanent and reserve capacities, have performed well on overseas deployments and at home and have been awarded the US Meritorious Service Medal. I have also considered additional factors that you have raised in references A and B. In particular, I accept that:
a.you are a competent officer in the Intelligence Corps and have particular skills in a language other than English (Arabic);
b.you have been reported well as an Intelligence Officer and you are currently posted to the Defence Intelligence Training Centre as an Army Reserve Officer;
c.you have interacted with male and female Defence members in a cordial and respectful manner in the workplace;
d.you have not, previously to the matters disclosed in the Termination Notice, been subject to an ‘equity and diversity complaint’ in the ADF;
e.you have not disclosed ‘official information’ in contravention of extant Defence instructions;
f.disciplinary action against you on the basis of the online material enclosed with the Termination Notice was discontinued by the Director of Military Prosecutions;
g.an Inquiry Officer appointed under the Defence (Inquiry) Regulations 1985 did not find that your conduct was in breach of DI(G)PERS 35-3 Reporting and Management of Unacceptable Behaviour;
h.the termination of your Reserve service in the Defence Force may have consequences for your future employment; and
i.you sincerely hope to continue your service.
14. I accept your submissions that disciplinary action against you on the basis of the material set out in the Termination Notice was discontinued and that an Inquiry Officer appointed to determine whether you had contravened DI(G) PERS 35-3 did not find that you had done so. However, I also note that, from the information you have placed before me, that the disciplinary proceedings were directed to your alleged contravention of the Defence Force Discipline Act 1982 and the Inquiry Officer inquiry to your formal compliance with DI(G) PERS 35-3 as a Defence member in the workplace. Both of these matters depended on your duty status at the time of your conduct. Neither was directed to the effect of your conduct holistically in terms of your obligations to serve and of the reputation of the Army and ADF. That, however, is the focus of the Termination Notice and the matter to which I directed your attention in my letter of 22 August. Therefore, I do not consider the outcomes of the disciplinary action or administrative inquiry relevant to my decision on your service.
15. I have considered your submissions regarding flaws in the Termination Notice and in relation to matters expressed in my subsequent letter to you. I have reviewed these carefully and am satisfied that the matters were sufficiently particularised so as to enable you to address adequately the allegations against you and that I am not compromised in making this decision.
Reasons for decision
16. I have concluded that your retention is not in the interests of the Australian Army. In particular:
a.your conduct as set out in the enclosures to the Termination Notice demonstrates behaviour repeatedly inconsistent with the standard set out in DI(G) PERS 50-1 Equity and Diversity in the Australian Defence Force, my Diversity and Inclusion statement, and current cultural reform initiatives;
b.the manner in which you publicly expressed your personal disagreement with Defence policy, particularly the support offered to homosexual and transgender members of the ADF and the decision to permit women to serve in combat roles, is significantly below that expected of an Officer in the Army, including a member of the Army Reserve;
c.you failed to modify your online behaviour when the inconsistency of your behaviour expressed in online postings with the standard expected of an Officer in the Australian Army was brought specifically to your attention;
d.the persistence of your conduct and your submissions in references A and B, demonstrate that you do not understand or are unable to exercise your responsibilities as an Officer and leader in the Australian Army, notwithstanding your rank and experience and the bringing of expected standards of behaviour to your attention by your chain of command on two separate occasions; and
e.your online conduct and behaviour, which you have refused to modify, is inconsistent with your continued service as a Major in the Army Reserve.
I have placed significant weight on these facts.
17. I have given weight to your status as a Reserve member. I note your view that you posted the material in a personal and civilian capacity, while you were not on duty, in uniform or performing any Reserve service, and that as a result you did not transgress Defence policy with respect to public comment or political activity. I accept you did not contravene extant instructions due to your duty status, but I have considered your submission from the point of view of the standards of behaviour expected of Defence members generally. On this basis, I consider your view outweighed by the fact that several of your posted comments critical of Defence and government policy, particularly regarding the support offered to homosexual and transgender members of the ADF and the decision to permit women to serve in combat roles, made mention of your service as a Reserve officer (Termination Notice enclosures 2, 3, 4, 7 – including entry of 8 Mar; and 8 – including entry of 22 Apr and 8 Mar). Once informed that the manner in which you had expressed your personal views did not accord with Army values, in particular by the former Deputy Chief of Army, you did not modify your behaviour.
18. I have considered your submission that the criticism of your conduct and the statements you have posted online about homosexuals shows intolerance of Catholicism, but as stated above, I do not consider this a question of faith. There is no evidence of direct or indirect discrimination against you on the basis of your religious beliefs. I note that you served in the Australian Regular Army for many years prior to your transfer to the Army Reserve and there is no evidence that your faith affected your ability to serve during this time, nor does it now. It is the manner and tone of your public comments that is affecting your ability to serve, particularly because some of your comments have been linked to your Reserve service. The result of your behaviour is an irreparable undermining of my confidence in your ability to uphold Army values and to be a leader in an organisation in which everyone is expected to respect diversity and demonstrate tolerance and respect, notwithstanding your personal beliefs.
19. I have given significant weight to your service history including your operational deployments and award of the US Meritorious Service Medal, and to your desire to continue your Army service. However the significance of this as a factor in determining whether your retention is in the interests of the Army is outweighed by your conduct in making repeated and intemperate online public comments critical of Defence and government policies and decisions, and of individual Defence members, including after being instructed on the standard of behaviour expected of you if you wished to continue as an Officer in the Army Reserve.
20. Pursuant to Regulation 7(2) of the Regulations, I do not consider that termination of your service will adversely affect the ability of the Army to carry out its operations, or its size and composition, notwithstanding that you are a well-trained and competent officer. However I do consider that your online behaviour while an ADF member has the capacity to affect recruitment and retention, and affect morale and discipline, because of the divisive and disrespectful nature of your comments regarding other serving members individually and as groups. I have given medium weight to this factor.
21. Given the size and scale of the Army, I do not consider that terminating your service will adversely affect the Army’s organisational effectiveness, personnel management or career advancement of other members. I have given little weight to these factors.
22. I accept that you have the skills and experience required for the proper performance of duties in the Army; however your behaviour as evidenced in the Termination Notice, particularly enclosures 1-8, is inconsistent with the standards of behaviour and conduct required for the proper performance of duty. I have given considerable weight to this factor.
23. Regulation 7(3) of the Regulations provides that I must also consider whether having regard to past and present conduct, you are of good character. In support of your good character I have taken into account your length of service, your service record, the fact that you have previously interacted in the workplace in a respectful and cordial manner and your submission that your comments are based on your strong Catholic faith and your view of its tenets. I consider that the tone and style of your public comments, and your failure to modify your public conduct when your shortcomings against expected standards of behaviour were brought specifically to your attention, as matters weighing against your good character.
24. Whilst your conduct is incompatible with continued service in the Defence Force, I have refrained from concluding that you are not of good character. This consideration on its own is not determinative of my overall finding, in which I consider the weight of evidence regarding your behaviour and the seriousness of your shortcomings against expected standards of behaviour to support my view that your retention is not in the interest of the Australian Army.
25. I have also given some weight to that additional information you have provided in your submissions relating to the impact of the termination of your service on your employment prospects and your desire to continue serving in the Australian Army. However, I do not consider that these factors constitute a change in circumstance that would affect my conclusion that your retention is not in the interest of the Australian Army. In particular, they do not excuse your behaviour, nor do they diminish the seriousness of your behavioural shortcomings having regard to the standard of behaviour expected of members of the Army both permanent and Reserve.
Conclusion
26. I have determined that your termination date will be 13 Jan 14. You are required to acknowledge this determination below. Should you not acknowledge the decision your appointment as an Officer in the Australian Army will be terminated on that date.
27. The Directorate of Reserve Officer Career Management – Army will administer the termination of your service.
[Signature]
D.J. HURLEY, AC, DSC
GEN
CDF
10 Dec 13
[Acknowledgement omitted.]
ANNEXURE D
[Department of Defence
Address]
CHIEF OF THE
DEFENCE FORCE
2014/1126066/1
DPG-VBR/OUT/2014/541
CDF/OUT/2014/714
Major B. Gaynor
[Address]
Dear Major Gaynor,
REDRESS OF GRIEVANCE—DETERMINATION
1. Your application for redress of grievance (ROG) concerning my decision to terminate your service in the Defence Force has been reviewed. I have determined that your application for redress should not be upheld. My reasons are explained in this letter.
2. I have considered your submissions regarding bias affecting my decision to terminate your service in the Defence Force, and affecting the processing of your application for redress of grievance regarding that decision. In particular, I have taken into account your request that, as a result of your submissions that I am tainted by actual or apprehended bias, I refer your application for redress of grievance to the Governor-General of Australia for decision, or else stay the termination of your service. I do not agree with your contention that I am unable to consider your application for redress of grievance with an open mind on the basis of previous engagement in policy decisions affecting the whole of the Australian Defence Force, noting that the termination decision of which you seek review is based only on your own behaviour.
3. I also note your submission that my correspondence with you on 22 August 2013 should be characterised as a new termination notice pursuant to regulation 85 of the Defence (Personnel) Regulations 2002, with the effect that my making a decision in the same matter breached the regulatory procedure. I do not agree that this is the proper characterisation of that correspondence, in which I invited you to make such further comment as you wished on the reasoning on which I proposed to rely in making a decision on your service, as a matter of ordinary construction. I am cognisant of the fact that this submission is unchanged from that made to the Chief of Army and that his delegate considered the submission unsubstantiated. Your referral to me raises no relevant and significant new information which would, in my view, justify revisiting that determination.
4. It is necessary that a decision be made on your application for redress of grievance regarding my decision to terminate your service. You have submitted that I am ‘so prejudiced in favour of that conclusion [termination] that [you] will not have been afforded a proper hearing in relation to all the evidence present here and elsewhere’. You add that, in your view, no reasonable observer can have confidence that I possess the ability to consider your application for redress objectively. You have contended that other senior Australian Defence Force (ADF) officers to whom I might refer your redress for review are also tainted by bias arising from the decision to permit uniformed personnel to march in the Sydney Gay and Lesbian Mardi Gras (‘the Mardi Gras’). You have also contended that other decision-makers, who have been called upon to review my decision on the termination of your service, are also tainted by bias. This is addressed by your referral to me.
5. Your proposed solution is that I recuse myself from determining your redress of grievance and refer it to the Governor-General for decision. I note that I am the final repository of authority to determine applications for redress of grievance for ADF officers concerning decisions affecting their military service prescribed in Part 15 of the Defence Force Regulations 1952. I do not agree that referral of a redress of grievance to the Governor-General is the appropriate solution, and further note that, even if such a referral were made, the Governor-General, by convention, acts on the advice of the executive. Such a referral would not therefore answer the objections you have raised to my determination of your redress of grievance. In the absence of a reasonable, alternative decision-maker untainted by the allegations you have raised, it is necessary that I proceed to determine your redress and therefore finalise the decision on your continued service in the Defence Force.
Review of decision to terminate your service in the Defence Force
6. You have raised a number of matters which you contend warrant revisiting my decision to terminate your service in the Defence Force. To the extent that your submissions concern generally applicable matters of policy, such as the appropriateness or otherwise of the participation of uniformed personnel in the Mardi Gras, they are beyond the scope of redress of grievance as prescribed in regulation 75 of the Defence Force Regulations 1952. Although outside the legislative framework for redress of grievance, I have noted your complaints about the lawfulness of this decision, and its allegedly discriminatory effect, have not been properly addressed.
7. I have considered the submissions you have made which are particular to the decision to terminate your service in the Defence Force on the basis of your behaviour in ‘expressing personal opinions publicly in an inappropriate and disrespectful manner, in circumstances that identify you as a member of the Australian Army Reserve’ (paragraph 9, Termination of Service Decision, 10 December 2013). In summary, you have submitted that my decision ‘ignores’ the fact that Defence policy applies to you only when in uniform or on duty; that it is based on conclusions that your views are ‘anti-homosexual,’ ‘anti-women’ and ‘anti‑transgender;’ and that it is based on a discriminatory approach to the public expression of your Catholic beliefs in Defence.
8. I note that these submissions were made in similar form in your responses to Chief of Army’s termination notice, dated 30 May 2013, and my correspondence with you on 22 August 2013. At that time, as set out in my Termination of Service Decision dated 10 December 2013, I decided that your service would be terminated not on the basis of your beliefs, but because of the manner in which you had publicly expressed them and the inconsistency of that behaviour with the standards expected of all Defence members, notwithstanding duty status (paragraphs 9-10).
9. Your submissions in the application for redress of grievance you have referred to me do not identify any credible, relevant and significant new information which would suggest that my decision that the reason for terminating your service in the Defence Force has been established, and that the reason had or has not been affected by a change in circumstances since the termination notice was issued by Chief of Army on 30 May 2013, is no longer sustainable. Therefore, there are no reasonable grounds raised in your referred redress of grievance to revisit my decision that your service be terminated because your retention is not in the interest of the Australian Army.
Other matters raised in your application for redress of grievance
10. You have submitted in the course of your application for redress of grievance that the issues and complaints you have raised have not been addressed, including through formal inquiry, and that ‘a Quick Assessment’ into Mardi Gras participation by ADF personnel found that Christianity had been vilified in the course of the event.
11. A Quick Assessment was conducted for the Commandant of the Defence Command Support Training Centre during April 2013 into a number of complaints you had raised regarding unacceptable behaviour, including by me, associated with ADF participation in the Mardi Gras. I am also cognisant of the fact that, in the course of his earlier determination of your redress of grievance, Brigadier Bornholt decided, at paragraphs 4-7 of his decision dated 31 May 2014, to refer nine complaints of unacceptable behaviour you had made to your Commanding Officer ‘to determine which have not been previously considered’. I am satisfied on this basis that there has been an adequate administrative response to the specific complaints of unacceptable behaviour you have raised. This aspect of your redress cannot be substantiated.
Conclusion
12. I have determined that the substantive aspects of your application for redress of grievance concerning my decision to terminate your service in the Defence Force, and other matters, cannot be substantiated. As a result, I have requested the Director of Reserve Officers Career Management give effect to my Termination of Service Decision of 10 December 2013 at the first available opportunity.
13. If you have a complaint about the associated administrative processes, the handling of your application for redress of grievance, or if you consider the process has been too slow, you can request the Defence Force Ombudsman (DFO) to investigate the matter. If you decide to pursue this option, you should contact the DFO and inform your Commanding Officer in writing of your actions.
Yours sincerely,
[Signature]
D.J. HURLEY, AC, DSC
General
Chief of the Defence Force
30 June 2014
9
11
8