Can a reserve member of the Armed Forces make controversial, religiously motivated, political comments on a private website contrary to Defence Force policy? Sadly, the answer provided by the recent decision in Chief of the Defence Force v Gaynor [2017] FCAFC 41 (8 March 2017) is, No, not without having their service terminated.
Major Gaynor had made a number of comments on his own website critical of support provided by the Australian Defence Force (ADF) for the Gay and Lesbian Mardi Gras held annually in Sydney. (This issue of course has re-emerged recently in connection with the 2017 event, with the Australian Christian Lobby and others being highly critical of a decision to allow ADF members to not only march in uniform in the highly political parade, but even to do so with a “redesigned” defence force badge impliedly expressing support for same sex marriage.) Major Gaynor had also criticised aspects of Islam and how Australia dealt with Muslim terrorism, and he had engaged in a public dispute with a high-profile transgender member of the ADF. But he had done all those things in his own time, and not while a serving active member of the Defence Force. Yet he was instructed not to make these comments, and terminated because he had not obeyed this instruction.
…the somewhat confusing analysis conducted in this decision on the “balancing” of free speech rights, with the need for a disciplined and united defence force, demonstrates that there is much more work to be done in this area to achieve sound protection of both speech and belief rights in Australia. The court here seems to ready to condemn views which take the “wrong” position on political issues as obviously “intolerant”. If there is to be a sensible and moderate discussion of important social issues, we need to provide room for views expressed in a range of forums to be considered. Members of the defence force, especially where not currently in active service, need to be able to participate in these debates, and we should defend their right to do so.
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