An Australian Army General who was dismissed for making “offensive and divisive” statements about homosexuals, transgender people and Muslims has had his appeal against the decision overturned by the Federal Court.
In 2013, Reservists Major Bernard Gaynor was sacked by the Chief of the Defence Force after making comments on social media including one that said he did not want gay people teaching his children.
“I wouldn’t let a gay person teach my children and I am not afraid to say it,” a Twitter post from Gaynor read.
Mr. Gaynor was also embroiled in a public stoush with then high-profile transgender Army officer Cate McGregor and issued a series of press releases criticising the ADF’s participation in Mardi Gras.
“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,” Mr. Gaynor’s press release read.
“The supposedly apolitical ADF 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.
“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.”
Last year he won an appeal against his sacking, with Federal Court judge Robert Buchanan finding his comments — made online and in press releases — were protected by freedom of political communication laws.
But the Chief of the Defence Force, Air Chief Marshal Mark Binskin, launched an appeal, arguing political freedom of speech laws do not overrule ADF regulations that allow for an officer to be dismissed if his service is not in the interest of the ADF.
This week, the Full Federal Court, comprising judges Nye Perram, Debra Mortimer and Jacqueline Gleeson, found in the ADF’s favour.
The judges concluded that the appeal judges should not have analysed the termination decision which treated Gaynor as having a constitutional right to express himself on political matters that had been unduly infringed by the termination decisions.
In their judgment they stated, “Given that reservists are liable to be called up at any time and are in any event subject to the same disciplinary and hierarchical requirements, there is no basis to view their position any differently,” the judges’ findings state.
“The circumstances of the respondent’s comments are in our opinion aptly described as extreme, including his refusal to accept and abide by orders and directions given to him,” the judgment states.
“Any potential harm to the freedom of political communication is outweighed by the need to reserve … the ability to terminate the service of individuals whose conduct and behaviour places them in a category where their continued presence in the ADF is assessed to be sufficiently serious … to justify the considerable step of terminating the service of an officer.”
Bernard Gaynor said he would seek leave to appeal to the High Court.
“This decision sets a damaging precedent in relation to freedom of speech. It is a decision that must be challenged,” he said.
Last Updated on Mar 12, 2017