Implied freedom of political communication
222 Before turning to the law to be applied to the second constitutional argument it is worth noting the boundaries set in the arguments of the parties.
223 On the applicant's side, he has not argued that he had an absolute right of public comment which would extend to full time service in the Regular Army, or to service as a Reservist whilst on duty or whilst in uniform. Those are the circumstances in which the provisions, prohibitions and procedures prescribed by the Defence Discipline Act apply. The applicant accepted that in any of those circumstances he was directly subject to military discipline. It is unnecessary in the present case to say anything about the potential interaction of those provisions, prohibitions and procedures with the claimed implied freedom.
224 Conversely, although the respondent did not accept that all of the comments could be covered by the implied freedom it was accepted that some might be, although it was argued that the applicant's ability to make the comments was not "burdened" by the termination of his commission. The respondent submitted:
25. As to the first limb of the Lange test, the three "decisions" the subject of Mr Gaynor's application for judicial review were based largely on Mr Gaynor's expression of intemperate views which were not of a political character. Even insofar as the views related to political or government matters, the Respondent does not concede that the constitutional freedom is burdened in any material way. As discussed below, it was open to Mr Gaynor to express his views so long as he did so in a manner divorced from a connection with his role in the Defence Force. Given he could still then express views, there was no impact on the ability of members of the community to gain the benefit of his views in order to inform their choices, thus no burden on the constitutionally protected freedom. As noted above, the central question is not how an individual might want to construct a particular communication.
225 Thereafter, the respondent's argument focussed on the "second limb" of the test stated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ("Lange"). In that discussion, the respondent emphasised two matters.
226 One matter concerned when a claimed burden on political communication met the second Lange test. The respondent argued:
32. Here, the Court should find that the military, like government agencies and employers generally, may direct an officer (or employee) not to publicly criticise their chain of command or to act in a deleterious manner which would interfere with the military's operation, reputation and ability to function.
33. In the present case, the following considerations militate in favour of a finding that any burden on free communication by such a restriction (as imposed here) is reasonably appropriate and adapted, or proportionate, to the legitimate ends of maintaining efficacy, efficiency and morale of, and confidence in, the Defence Force:
(i) Defence personnel are required to serve the Government of the day without question (see eg ss 8, 9 and 9A of the Defence Act 1903 (Cth), and DIG(G) PERS 21-1 Political activities of Defence personnel). Whilst such personnel are entitled to hold, and no doubt do hold, their own political views, nothing they do should undermine the confidence of the Government of the day in their loyalty and willingness to obey (lawful) directions and orders.
(ii) The maintenance of discipline and the chain of command is essential to the ability of the Defence Force to operate. There have to be limits on the level of criticism officers can make of other members of the Defence Force, particular more senior officers - cf for example Mr Gaynor specifically responding to the Deputy Chief of Army's 22 March 2013 letter directly in press releases: Gaynor Annexure A124.
(iii) Defence Force personnel must not do anything which would bring the Defence Force and its members into disrepute or danger. For example, Mr Gaynor made comments regarding Australia's involvement in Afghanistan and Iraq to the effect that the Defence Force's missions have been hampered by its failure to understand that Islam is a violent religion (CDF, Document 31). Such comments - when understood to be made by a current officer of the Australian Army Reserve - could provoke, or be employed to justify, attacks on Australian personnel involved in those operations.
(iv) The repeated intemperate online comments critical of Defence Force and government policies, and on decisions of individual Defence Force officers, as well as comments about particular homosexual and transgender Defence Force members, have the capacity to affect "recruitment and retention, and affect morale and discipline, because of the divisive and disrespectful nature of the comments" (as stated at [20] of the Termination Decision).
227 The second matter was that one vice in the applicant's comments, and the particular circumstance that took them beyond any constitutional protection, was that when making the comments he identified himself as a member of the ADF. Thus, the respondent argued:
34. Furthermore, any burdens placed on Mr Gaynor's freedom to communicate about political and governmental matters was not very restrictive relative to Mr Gaynor's position as an officer of the Defence Force. At no time did any Defence Force policy or any discretionary decision or order by a Defence Force officer prohibit Mr Gaynor from expressing opinions publicly, or restrict him from expressing opinions about a particular subject-matter publicly. Rather, the following restrictions applied:
(i) Clause 10 of DI(G) PERS 21-1 Political activities of Defence personnel permitted Defence personnel to engage in a wide range of political activities, provided that the person did not identify themselves as part of Defence or identify any part of Defence with any particular activity.
(ii) In the counselling session following the Quick Assessment, LTCOL Buxton requested that Mr Gaynor comply with DI(G) ADMIN 08-2 Use of social media by Defence personnel, to refrain from posting offensive material. LTCOL Buxton did not order Mr Gaynor to refrain from all public communications or refrain from communications about particular subject-matter.
(iii) Similarly, in his 22 March 2013 letter to Mr Gaynor, MAJGEN Campbell directed Mr Gaynor to cease posting material, and to remove any material already posted, that identified Mr Gaynor as an Army officer.
(iv) In the Termination Decision, the CDF expressly acknowledged Mr Gaynor's right to hold and express opinions, but found that Mr Gaynor had expressed "personal opinions publicly in an inappropriate and disrespectful manner, in circumstances that identify you as a member of the Australian Army Reserves" (at [9]).
35. The sanctions imposed upon Mr Gaynor were by reason of the tone of the public comments (intemperate and disrespectful), and the fact that Mr Gaynor identified himself as an officer in the Army Reserve when making the public comments, combined with his disobedience of directions. They were not imposed because of the subject matter of the comments.
36. Furthermore, if Mr Gaynor wished to communicate in any way that he saw fit, he could avoid the restrictions placed on him by the Defence Force by not identifying himself as a member of the Defence Force in his public comments and publications (including on his website). If he was unable to do so, then it was open to him to resign his commission as an officer; upon the acceptance of his resignation, he would have enjoyed the same liberties to communicate on political and governmental matters as civilians. He had been given clear warning and directions. He chose to ignore them.
228 I shall return to those issues, but first the legal framework in which to assess them must be identified.
229 The Constitution does not state any protection for political, or any other, communication. Freedom of political communication is an implication which the High Court has drawn from the terms and structure of the Constitution. The limits of the implication are as important as its existence in many cases.
230 In Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 ("ACTV"), Mason CJ (at 139) referred to an implied "freedom of communication in relation to public affairs and political discussion" which was not confined to "communications between elected representatives and candidates for election on the one hand and the electorate on the other".
231 Brennan J (at 149) spoke of "that freedom of discussion of political and economic matters which is essential to sustain the system of representative government prescribed by the Constitution". His Honour explained (at 150) that the freedom was not a "personal right"; rather it was "an immunity consequent on a limitation of legislative power".
232 Gaudron J (at 212) said:
The notion of a free society governed in accordance with the principles of representative parliamentary democracy may entail freedom of movement, freedom of association and, perhaps, freedom of speech generally. But, so far as free elections are an indispensible feature of a society of that kind, it necessarily entails, at the very least, freedom of political discourse. And that discourse is not limited to communication between candidates and electors, but extends to communication between the members of society generally.
(Footnotes omitted.)
233 Her Honour went on (Deane and Toohey JJ agreeing at 169) to hold that the freedom extends to all political matters. Her Honour said (at 215):
… subject to what is said as to regulation, the power conferred by s. 51 does not extend to the making of laws that impair the free flow of information and ideas on matters falling within the area of political discourse.
234 In Lange, referring to what Mason CJ had said in ACTV, the High Court said (at 561-562):
However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end. Different formulae have been used by members of this Court in other cases to express the test whether the freedom provided by the Constitution has been infringed. Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality. In the context of the questions raised by the case stated, there is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted.
(Footnote omitted.)
and (at 567-568) said:
When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively "the system of government prescribed by the Constitution"). If the first question is answered "yes" and the second is answered "no", the law is invalid. …
(Footnotes omitted.)
235 Those passages state the two limbs of the "Lange test", which has been the subject of elaboration in later cases.
236 In Wotton, the High Court said (at [25]):
25 Two questions (the Lange questions) arise with respect to each statutory provision which the plaintiff puts in contention. The terms of the questions are settled. They were recently stated, and applied, by the whole Court in Hogan v Hinch as follows. The first question asks whether in its terms, operation or effect, the law effectively burdens freedom of communication about government or political matters. If this is answered affirmatively, the second question asks whether the law nevertheless is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government described in the passage from Aid/Watch set out above.
(Footnotes omitted.)
237 Another important statement was made in Lange which was referred to recently by the High Court. In Lange, the High Court said (at 571):
… this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. …
238 This statement was referred to as authoritative by the majority of the High Court in Unions NSW v State of New South Wales (2013) 252 CLR 530 at [26] ("Unions NSW"). That judgment went on (at [27]-[30]):
27 The statement in Lange set out above not only recognises that, generally speaking, political communication cannot be compartmentalised to either that respecting State or that respecting federal issues. It also implies that a free flow of communication between all interested persons is necessary to the maintenance of representative government.
28 In ACTV, Brennan J spoke of the need for there to be a free flow of political communication in order that electors can form judgments. Mason CJ observed that freedom of communication could not be understood as confined to communications between electors and elected representatives, candidates or parties. It cannot be so confined because the efficacy of representative government depends upon free communication between all persons and groups in the community. An elector's judgment on many issues will turn upon free public discussion, often in the media, of the views of all those interested.
29 In a passage from Archibald Cox's text, to which Mason CJ referred in ACTV, it was said that:
"Only by uninhibited publication can the flow of information be secured and the people informed … Only by freedom of speech … and of association can people build and assert political power."
Likewise, in Buckley v Valeo the United States Supreme Court spoke of the need to ensure the "unfettered interchange of ideas for the bringing about of political and social changes desired by the people".
30 Political communication may be undertaken legitimately to influence others to a political viewpoint. It is not simply a two-way affair between electors and government or candidates. There are many in the community who are not electors but who are governed and are affected by decisions of government. Whilst not suggesting that the freedom of political communication is a personal right or freedom, which it is not, it may be acknowledged that such persons and entities have a legitimate interest in governmental action and the direction of policy. The point to be made is that they, as well as electors, may seek to influence the ultimate choice of the people as to who should govern. They may do so directly or indirectly through the support of a party or a candidate who they consider best represents or expresses their viewpoint. In turn, political parties and candidates may seek to influence such persons or entities because it is understood that they will in turn contribute to the discourse about matters of politics and government.
(Footnotes omitted.)
239 Those statements must be seen and applied in the constitutional context referred to at [35]-[36]:
35 The first question posed by Lange is whether s 96D effectively burdens the freedom of political communication either in its terms, operation or effect. It requires consideration as to how the section affects the freedom generally.
36 In addressing this question, it is important to bear in mind that what the Constitution protects is not a personal right. A legislative prohibition or restriction on the freedom is not to be understood as affecting a person's right or freedom to engage in political communication, but as affecting communication on those subjects more generally. The freedom is to be understood as addressed to legislative power, not rights, and as effecting a restriction on that power. Thus the question is not whether a person is limited in the way that he or she can express himself or herself, although identification of that limiting effect may be necessary to an understanding of the operation of a statutory provision upon the freedom more generally. The central question is: how does the impugned law affect the freedom?
(Footnotes omitted.)
240 Most recently, the majority judgment in the High Court in McCloy v State of New South Wales [2015] HCA 34; (2015) 89 ALJR 857 ("McCloy"), provided the following distillation of the Lange tests at [2]:
[2] As explained in the reasons that follow, the question whether an impugned law infringes the freedom requires application of the following propositions derived from previous decisions of this Court and particularly Lange v Australian Broadcasting Corporation and Coleman v Power:
A. The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may "exercise a free and informed choice as electors". It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.
B. The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power:
1. Does the law effectively burden the freedom in its terms, operation or effect?
If "no", then the law does not exceed the implied limitation and the inquiry as to validity ends.
2. If "yes" to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as "compatibility testing".
The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.
If the answer to question 2 is "no", then the law exceeds the implied limitation and the inquiry as to validity ends.
3. If "yes" to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in these reasons as "proportionality testing" to determine whether the restriction which the provision imposes on the freedom is justified.
The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test - these are the inquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:
suitable - as having a rational connection to the purpose of the provision;
necessary - in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;
adequate in its balance - a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.
If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be "no" and the measure will exceed the implied limitation on legislative power.
(Emphasis in original.) (Footnotes omitted.)
241 The judgment emphasised (at [30]) that "the freedom is not a personal right" and (at [69]) that "the freedom is not absolute". It went on (at [79]-[83] and [87]):
[79] It is generally accepted that there are at least three stages to a test of proportionality. As stated in the introduction to these reasons, they are whether the statute is suitable, necessary, and adequate in its balance.
[80] Suitability is also referred to as "appropriateness" or "fit". Despite this language, it does not involve a value judgment about whether the legislature could have approached the matter in a different way. If the measure cannot contribute to the realisation of the statute's legitimate purpose, its use cannot be said to be reasonable. This stage of the test requires that there be a rational connection between the provision in question and the statute's legitimate purpose, such that the statute's purpose can be furthered. This was the approach followed in Unions NSW. It is an inquiry which logic requires.
[81] The second stage of the test - necessity - generally accords with the inquiry identified in Unions NSW as to the availability of other, equally effective, means of achieving the legislative object which have a less restrictive effect on the freedom and which are obvious and compelling. If such measures are available, the use of more restrictive measures is not reasonable and cannot be justified.
[82] It is important to recognise that the question of necessity does not deny that it is the role of the legislature to select the means by which a legitimate statutory purpose may be achieved. It is the role of the Court to ensure that the freedom is not burdened when it need not be. Once within the domain of selections which fulfil the legislative purpose with the least harm to the freedom, the decision to select the preferred means is the legislature's.
[83] The first two stages of the test for the proportionality, or reasonableness, of a legislative measure concern the relationship between the legitimate legislative purpose (ends) and the means employed to achieve it (means). Neither the importance of the legislative purpose nor the extent of the effect on the freedom are examined at these stages. The Lange test identifies the extent of the effect on the freedom as relevant, but does not say what, if anything, is to be balanced against the effect on the freedom in order to determine whether the measure is justified. The Lange test does not expressly identify assessment of the importance of the legislative purpose as a relevant factor.
…
[87] The purpose of and benefit sought to be achieved by legislative provisions assume relevance in the third stage of the test for proportionality. This stage, that of strict proportionality or balancing, is regarded by the courts of some legal systems as most important. It compares the positive effect of realising the law's proper purpose with the negative effect of the limits on constitutional rights or freedoms. It requires an "adequate congruence between the benefits gained by the law's policy and the harm it may cause", which is to say, a balance. Balancing is required because it is rare that the exercise of a right or freedom will be prohibited altogether. Only aspects of it will be restricted, so what is needed, to determine whether the extent of this restriction is reasonable, is a consideration of the importance of the purpose and the benefit sought to be achieved. …
242 In the present case, those concepts must be accommodated to the fact that reliance on the implied freedom arises principally as a suggested limitation on the extent of the legitimate discretion available under reg 85 of the Personnel Regulations.
243 Accordingly, in the present case, the question for examination is whether the authority exercised by CDF to terminate the applicant's commission was limited so as to avoid the instructions, policies and orders upon which CDF relied burdening the right of the applicant to communicate on political matters. The related question is whether any propensity to burden that right was reasonably appropriate and adapted to serve a legitimate end. In the present case that can be tested by examining the effect or outcomes of the exercise of power, namely, by considering whether termination of the applicant's commission gave effect to a legitimate end of the relevant kind.
244 In particular, it now needs to be considered whether the exercise of power gave effect to a legitimate end in the sense that the legitimate end was suitable, necessary and adequate in its balance.
245 Some of the features which might be examined in a legislative context are less easily applied in a case such as the present. Nevertheless, I will take it that the matter may be tested by examining the challenged decisions to see whether they are authorised by laws confined in their operation within the constitutional limits.
246 The first question is whether the statements and communications by the applicant were political in nature and part of political discourse. In in my view they were.
247 Within the ADF, and publically, the applicant's published statements were described as "inappropriate", "offensive", "unacceptable", "disrespectful", "intemperate", "anti-transgender", "anti-women", "homophobic", "inflammatory", "intolerant", "divisive" and "demeaning". However, as was pointed out in Coleman, the fact that statements are offensive or insulting does not take them outside the field of political discourse, which is frequently marked by offence or insult (see e.g. per McHugh J at [81]-[82], per Gummow and Hayne JJ at [197], per Kirby J at [239]).
248 The subject matter of the applicant's comments are ones upon which many people may differ for reasons of religion, morality, social conscience or practical politics. I do not accept the suggestion in the respondent's submissions that some matters fell outside the field of political discourse. They cannot be seen as falling outside, or even at the fringe of, political discourse. The better view, it seems to me, is that they were all within that field of discourse, even when directed at personal insult or condemnation, as in the case of the transgender officer. Even in that case, it appears to me that the applicant was attempting to make a public statement of a political kind.
249 It is then necessary to pay regard to the practical consequence, or effect, of the Termination Decision (see Lange at 567; Unions NSW at [36]).
250 The Termination Decision had the effect of sanctioning the applicant for his conduct. There can be no doubt that it was a disciplinary outcome, even if not one imposed under the regime in the Defence Discipline Act. It represented an adverse consequence for the applicant. That consequence was, in large part, the result of his refusal to desist from publishing comments of the kind identified above. The fact that the conduct also involved direct disobedience of orders does not sufficiently change matters, because the orders themselves were directed to the same end, namely to prevent further communications of the same kind. In my view, freedom of political communication was burdened by the imposition of the consequence for the applicant that his commission as an officer was terminated.
251 I am satisfied, therefore, that the first Lange test is satisfied and that the real focus of attention should be, as the respondent submitted, on the second limb of that test.
252 The respondent's argument involved two themes (reflected in paragraph 33 and paragraphs 34-36 set out earlier).
253 They were, first, that any burden imposed by CDF through reg 85 upon the applicant's freedom of communication was within the second Lange test because it was directed to the maintenance of discipline and the chain of command, the avoidance of danger to military personnel and the capacity to recruit and retain personnel.
254 In my respectful view, little weight can be given to those matters. They rested upon assumptions which were essentially speculative. There was no evidence that the applicant's comments had any effect contrary to those objectives, or that it was likely that they would do so. More importantly, the same may be said of any comment of the same kind from any source. It cannot seriously be suggested that a law would be valid if it prohibited public comment for that reason.
255 Therefore, the fact of the applicant's own membership of the ADF must be the element which would justify a restriction on his right of public comment. That is what the second line of argument was addressed to.
256 The second line of argument was that the only restriction imposed upon the applicant was that he not identify himself as a member of the ADF. To address this contention it will be necessary to return to the facts, to the various instructions and orders and to the Termination Decision.
257 One matter, however, should be addressed at the outset. The applicant always maintained that it was not he who published his current serving status at the time of his first tweet on 23 January 2013. I think that should be accepted, although it makes no difference to the strength of the respondent's argument because, shortly thereafter, any such reticence by the applicant was abandoned and he frequently referred to his connection with the ADF.
258 The contention is important for the applicant's argument because it provided the foundation for a suggestion that Lt. Col. Buxton's initial direction was misconceived and excessive and that (so it was argued) because the Quick Assessment Report and the resulting instruction was foundational to everything which followed, the Termination Decision could not be independently sustained.
259 I reject this argument. It ignores the facts. There is no doubt that the applicant, from early March 2013, abandoned any restraint on making known his connection with the ADF and his conduct must be assessed in that light.
260 Lt. Col. Buxton's instructions were based upon DI(G) ADMIN 08-2. As earlier discussed, that instruction under s 9A of the Defence Act, applies by its terms to all ADF personnel. Lt. Col. Buxton's instruction was that while the applicant remained an active Reservist "he was to make no further intemperate or inflammatory remarks on social media".
261 The order by the Deputy Chief of Army on 22 March 2013 was in part more limited and in part less restricted. The applicant was ordered to "cease posting material in the public domain that identifies you as an Army Officer" and "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" (my emphasis).
262 The termination notice referred to:
3. …
a. your conduct in making public comment and provision of official information whilst a member of the Army and/or 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 have not removed material from social media sites and your website that links your comments to the Australian Army and Defence Force.
263 The termination notice referred to material which identified the applicant as a member of the ADF, to him being an officer of field rank and to his published material being below the standard expected of an Army officer.
264 Paragraph 11 of the termination notice said, referring both to identification as a member of the ADF and to the applicant's personal contravention of ADF values:
11. You have continued to make public comment identifying yourself as an Army Officer or have purported to act in your capacity as a member of the Army Reserve which is reinforced by your photograph in Army uniform on your website and repeated public comments referring to your military service. After being ordered by the Deputy Chief of Army in writing to do so, you have failed to remove material from your website and social media sites that links your comments to your military service and which seeks to, or can be reasonably expected to breach Defence policy, contravene ADF values or which is otherwise not in the interests of Army. You have therefore failed to comply with the above order.
265 Importantly, paragraph 12 said:
12. Based on the above evidence, your retention as an officer is not in the interests of the Army.
266 The Termination Decision was clearly, and directly, based on the matters referred to in the termination notice. In addition, however, it was based also on the Minute from CDF of 22 August 2013. Paragraphs 4, 5, 7 and 8 of the Minute said:
4. It is not unlawful, in breach of Defence policy or unethical for you to simply publically refer to your service in the Army, nor for you to have opinions contrary to ADF or government policy. It does, however become inappropriate and objectionable in my view when as an Army Reserve member you make comments critical of Army and ADF policy, which are divisive and opposed to the culture that the Army, and the ADF, is striving to achieve.
5. You are a member of the Australian Army and the ADF. By virtue of your status as an Army Reserve member, whether or not you are actually on duty or in uniform, you are expected to adhere to professional standards of behaviour and conduct, such that when you are called upon to perform reserve service you are able to carry out your duties without interference. To that end you are expected to display behaviour and conduct consistent with any obligations you may have to the Army and to service in an organisation where equity, diversity, fairness and tolerance are absolute requirements.
…
7. Therefore I advise you that in considering reference A, rather than placing significant weight on whether or not you have technically breached references E and F, I intend to place greater weight on my view that:
a. your public comments (evidenced in reference A) demonstrate attitudes that are demeaning and demonstrate intolerance of homosexual persons, transgender persons, and women, and are contrary to the policies and cultural change currently being undertaken within the Army and Defence; and
b. your comments critical of ADF and Government policy (evidenced in reference A) demonstrate a conflict of interest between your personal interests and your obligations to serve the Army that cannot be reconciled.
8. I respect your religious beliefs and your right to have, and express, opinions contrary to ADF and Government policy. However your public articulation of these matters whilst a member of the Army Reserve, whether or not you are on duty, or in uniform, undermine my confidence in your ability to uphold the values of the Australian Army and your effectiveness as a leader in today's Army.
267 Those matters were not confined to statements by which the applicant identified himself as an ADF member. They were matters which proposed for the applicant's attention and response the contention that his public comments as such and his membership of the ADF as such were incompatible.
268 The Termination Decision proceeded upon the same general footing. That may be seen from the statements in paragraph 4 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" and in paragraph 7 that "it is your behaviour generally which is at issue in deciding whether your retention is in the interests of the Army". Paragraph 8 stated, without qualification:
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.
269 It is true that there are passages in the Termination Decision which refer to identification by the applicant as a member of the ADF, but the position is, in those instances, often mixed with a more general statement. Examples may be found in paragraphs 9, 11 and 18 as follows:
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. …
…
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. (my emphasis)
…
18. … 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. …
270 The reasons for decision in paragraph 16 appear to me to proceed, substantially, upon the same general basis of disapproval of the applicant's conduct as below the standard expected of him (whether he identified himself as an ADF member or not) and as impermissibly at variance with ADF policies and cultural reform initiatives - e.g.:
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-l 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;
…
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.
…
271 The statement by CDF in paragraph 18 that:
18. … 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.
does not appear to me to be one referring to, or referable to, the fact that the applicant identified himself at particular times and in particular ways as a member of the ADF.
272 Rather, it seems to me that the decision to terminate was based on the fact that the applicant expressed his views publicly while he was still a member of the ADF. That conclusion is reinforced by CDF's substantive concluding paragraph:
25. I have also given some weight to the 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.
273 This appears to me to postulate (I intend no criticism) a standard of behaviour involving conformity and compliance with stated ADF values and philosophies which did not depend on the terms of particular publications and statements. Although the applicant's public statements were the reason for consideration of his conduct, the expected standards of behaviour against which his conduct was measured did not turn on whether at particular times he had identified himself as a member of the ADF, but rather whether he was at those times a member of the ADF.
274 I, therefore, do not accept the respondent's second line of argument, or that termination of the applicant's commission turned on his identification of himself as a member of the Army Reserve.
275 There is no suggestion that the applicant published any official information in his public statements. However, there is no real doubt that his published statements infringed the prohibition in item 19 of DI(G) ADMIN 08-2, even if not s 60 of the Defence Discipline Act. But this was not the basis (certainly not the only basis) of the termination of his commission; it was just one element of the matters under consideration and, as CDF emphasised in his Minute of 22 August 2013, questions of "technical" breach of this DI(G), and of DI(G) ADMIN 08-1, were to be given less weight than CDF's conclusions that:
7. …
a. your public comments (evidenced in reference A) demonstrate attitudes that are demeaning and demonstrate intolerance of homosexual persons, transgender persons, and women, and are contrary to the policies and cultural change currently being undertaken within the Army and Defence; and
b. your comments critical of ADF and Government policy (evidenced in reference A) demonstrate a conflict of interest between your personal interests and your obligations to serve the Army that cannot be reconciled.
276 All of his comments were made while the applicant was not on duty, not in uniform and not doing anything connected with the ADF except criticising it and certain of its members. It is clear from the Quick Assessment Report that the applicant had made no particular contribution to his unit since November 2011 and was not really expected to do so again.
277 In my view, the applicant's commission was, in substance, terminated for two reasons. The first was that he made public comments critical of the ADF while a member of the ADF. Those comments were in contravention of Defence instructions but much more important to their assessment was their tone and content, which was viewed within the ADF, and by CDF, as wholly unacceptable. The second reason was the applicant's defiance of direct orders by his superiors, a circumstance which is anathema in military service.
278 I am not to be taken as indicating any criticism of either of those judgements, the persons who made them, the persons who share them or the military standards which sustain them.
279 However, in my view the circumstance that the comments were made in a personal capacity, unconnected with the ADF except by the ongoing formal circumstance of ADF membership, and that the comments were made in the form of communications about political matters which satisfy the first limb of the Lange test, raises for resolution whether the decision to terminate the applicant's commission exceeded the statutory authority under reg 85(4) of the Personnel Regulations because it was, in its effect, not reasonably appropriate and adapted to the legitimate end served by reg 85.
280 Consideration of that issue, against the facts which I have discussed, requires attention to the explanation given in McCloy of the stages of consideration of proportionality. I regard it as appropriate to ask whether a regulation (or other legislation or legislative instrument), which directly prohibited the applicant's conduct, would be valid if it was based on the same matters as the findings of CDF in the Termination Decision. In my view it would not.
281 That conclusion turns on the third element of the test distilled in McCloy.
282 I accept that there is a need for discipline, obedience to orders and adherence to standards in the ADF by its members. A restriction on public comment of the kind I am considering (i.e. termination of a commission) was a "suitable" response to infringement of those requirements.
283 I cannot conceive of another obvious and compelling means of achieving the objective in the face of conduct such as that of the applicant, which was defiant and intractable. I will accept that the response was therefore "necessary" in that sense.
284 However, in my view the response did not meet the third element of the test of proportionality stated in McCloy. It was not "adequate in its balance" having regard to the fact that the applicant's conduct involved the expression of political opinion, effectively as a private citizen. A contrary view would accept that ADF members have lost that freedom of political expression, even when not serving in any active capacity, nor likely to do so again.
285 In my view, the burden on the exercise by the applicant of his freedom of political communication was considerable by reason of its consequence, whatever might be said against the manner of its expression or its content. I cannot accept that the right to exercise that freedom was lost only because the applicant remained a member of the ADF.
286 I should add, for completeness, that my view about the second limb of the Lange test is the same, with or without the application of the refinements discussed in McCloy.
287 Membership of the ADF, while on service in one form or another, undoubtedly carries with it obligations of obedience to lawful commands, and all the rigour and restrictions of military service but it does not seem to me that it extinguishes either freedom of belief or, while free from military discipline, freedom of expression. It may be the case that members of a full time regular service are rarely (if ever) free to publicly express opinions against the policies of the ADF or the decisions of their superiors but the same cannot always be said about members of Reserves. Such persons are often not on duty. They are private citizens, in substance, when not on duty and not in uniform. Military discipline under the Defence Discipline Act does not apply to them. In my view, their freedom of political communication cannot be burdened at those times.
288 There may be other grounds upon which the applicant's commission may have been terminated. It does not appear as though the applicant was making a useful contribution to the ADF in other respects, or was likely to in the future. Termination may have been justified on some only of the grounds which CDF considered. I say nothing about those possibilities. My task is to review the grounds which were used, paying particular regard to the reasons for decision published on 10 December 2013.
289 When I do that, I conclude that the applicant's commission was terminated because of the publication of his private views about political matters. The fact that those publications were at variance with ADF or government policy, or were in terms of which some may strongly disapprove, or were critical of ADF policies or instructions, does not appear to me to be sufficiently connected with any legitimate legislative aim to displace the freedom of political communication implied in the Constitution.