Gaynor v Chief of the Defence Force (No 3)

In the case of Gaynor v Chief of the Defence Force (No 3), the applicant, a commissioned officer in the Australian Defence Force (ADF), challenged the termination of his commission due to his social media comments deemed inappropriate by the ADF. The applicant, a member of the Australian Army Reserve and a political party official, had expressed his views on homosexuality, transgender behaviour, and Islam, which were considered in breach of ADF policies. The applicant pursued multiple internal review processes, which resulted in the upholding of the termination decision, albeit with a delay in its implementation. The applicant then sought judicial review of the decision to terminate his commission under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The primary legal issues in this case were whether the applicant's social media comments were protected by the implied freedom of political communication under the Australian Constitution and whether the termination of the applicant's commission was a valid exercise of the power conferred by regulation 85 of the Defence Force (Personnel) Regulations 2002 (Cth). Additionally, the court had to determine whether the applicant's challenge to the termination decision was time-barred and whether any of the decisions to terminate his commission were invalid.

The Federal Court found that the applicant's comments on social media constituted political communication, as they were made while he was a member of the ADF and not on duty. The court applied the Lange test and determined that the termination decision was not proportionate to the power afforded by the relevant regulation. The court held that the burden on the applicant's freedom of political communication was unreasonable and not adapted or proportionate to the end of maintaining efficacy, efficiency, and morale of, and confidence in, the ADF. Consequently, the court set aside the decision to terminate the applicant's commission. The court also found that one of the decisions was not a decision for the purpose of the Administrative Decisions (Judicial Review) Act 1977 (Cth), and one decision was time-barred, while the time for challenging the other decision was extended, with no prejudice to the respondent.

The final orders of the court were that the decision of the Chief of the Defence Force to terminate the applicant's commission on 10 December 2013 was set aside. If the respondent wished to make an application for a different order, it had to be done by 15 December 2015 and listed for directions on 18 December 2015. If no such application was made, the respondent had to pay the applicant's costs, as taxed if not agreed.