Dismissal and free speech: Full Federal Court considers implied right in employment context

Employers will often be aware of their usual obligations when it comes to terminating the employment of an employee. Procedural fairness, payment of outstanding entitlements, notice of termination and considerations of harshness are part and parcel of the termination process.

However, a recent full Federal Court decision has considered another prism to this — the role of the Constitution and the implied right to freedom of political communication it provides. Chief of the Defence Force v Gaynor [2017] FCAFC 41 considered this implied right in the context of the dismissal of an Army Reservist pursuant to the Defence (Personnel) Regulations 2002 (Cth). This decision has shed light on what the implied right means in the employment context and has implications for all statutory bodies whose power to terminate the employment of employees is derived from statute (or delegated legislation).

The implied right: Lange, Coleman and McCloy

The High Court first considered the implied right to freedom of political communication in Lange v Australian Broadcasting Corp (1997) 145 ALR 96 which involved a claim for defamation against the Australian Broadcasting Corporation.

In defending the claim, the ABC pleaded that the matter was published pursuant to its right to freedom of political communication under the Constitution. The High Court held that the Constitution does not grant a personal right to freedom of political communication that an individual can exercise. Rather, it prevents the executive or legislature exercising their functions in a way that curtails freedom of political communication. In this context, freedom of political communication is limited to what is necessary to protect a responsible and representative government. The High Court formulated the following test to determine whether legislative or executive action infringes the implied right:

• Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect (First Limb)?
• If so, is the burden reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of a constitutionally prescribed system of representative and responsible government (Second Limb).

The implied right was further considered in Coleman v Power (2004) 220 CLR 1. Coleman was charged under section 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld) with using threatening, abusive or insulting words for yelling in public: “This is Constable Brendan Power, a corrupt police officer.” When considering the Lange test, the majority reworded the Second Limb to read:

"Is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government."

The High Court again considered the implied right in McCloy v New South Wales (2015) 257 CLR 178. In that case, McCloy challenged the validity of a number of sections of the Election Funding, Expenditure and Disclosures Act 1981 (NSW), which together imposed caps on political donations in certain circumstances. The court elaborated on the Second Limb, stating that there were three stages to the Second Limb:

• Whether the law is suitable — that is, does it have a rational connection to the purpose of the provision?
• Whether the law is necessary — that is, there is not an obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom.
• Whether the law is adequate in its balance — a value judgment, within 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.

Gaynor v Chief of the Defence Force: first instance

Background

The test formulated in Lange, Coleman and McCloy was applied by the Federal Court at first instance in Gaynor v Chief of the Defence Force (No 3) (2015) 237 FCR 188. In this case, Mr Bernard Gaynor, an Army Reservist, had his service terminated by the Australian Defence Force (ADF) for various controversial comments he made on social media. This included comments which were critical of the ADF’s policies regarding gay, lesbian and transgender issues, Islam and women fighting on the front line.

These comments were made through a combination of Mr Gaynor’s Twitter and Facebook accounts and press releases (which were published by Mr Gaynor after he was counselled by the ADF and directed to discontinue making such comments). While Mr Gaynor did not initially refer to his then current Army Reserve status in the ADF when making these comments, the connection became evident as Mr Gaynor’s public comments continued.

Termination of service and challenge by Mr Gaynor

The ADF terminated Mr Gaynor’s service (pursuant to reg 85(1)(d) of the Regulations) four months after he began making the comments. According to the termination notice, the main reasons for Mr Gaynor’s termination of service were:

• publicly criticising ADF policy on Afghanistan, gay and transgender members and women serving in combat roles while identifying as an active Army Reservist;
• exhibiting behaviour contrary to ADF policies and cultural change initiatives; and
• continuing to make various public comments and representations after being instructed not to.

Mr Gaynor challenged the termination of his service arguing, among other things, that it breached his implied freedom of political communication.^[1]

Held

Finding in favour of Mr Gaynor, Buchanan J applied the test formulated in Lange, Coleman and McCloy to the ADF’s decision to terminate Mr Gaynor (rather than the legislative instrument pursuant to which the decision was made). His Honour formed the view that:

• the comments were “political in nature”, notwithstanding that they were “offensive” and “insulting”; and
• Mr Gaynor’s service was terminated as a result of making the political comments.

Accordingly, his Honour found that Mr Gaynor’s implied right to freedom of political communication had been “burdened” in the sense contemplated by the First Limb of the test.

Regarding the Second Limb, his Honour considered that, while the termination of Mr Gaynor’s service may have been “necessary” to ensure “adherence to ADF standards”, it was not “adequate in its balance” because the comments were made by Mr Gaynor in his capacity as a private citizen. His Honour expressed concern that a contrary view would permanently deny ADF members freedom of political expression.

His Honour concluded:

"The fact that [Mr Gaynor’s comments] 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."

Having made these findings, his Honour set aside the decision to terminate Mr Gaynor’s service.

On appeal to the Full Court

On appeal, the Full Court overturned Buchanan J’s findings, ruling that the ADF was entitled to terminate Mr Gaynor’s service, and that the overarching interests in the circumstances outweighed any potential harm to freedom of political communication. The basis of the ADF’s appeal was that Buchanan J had incorrectly applied the test formulated in Lange, Coleman and McCloy by focusing on the decision to terminate Mr Gaynor’s service, rather than the legislative instrument pursuant to which the decision was made. The ADF submitted that Buchanan J should have only considered whether reg 85(1)(d) contravened the implied freedom, and that the correct conclusion is that it does not.

The Full Court agreed with the ADF, finding that Buchanan J erred in the level at which he applied the test, which led his Honour to look at the “constitutional argument through an incorrect prism” - being, “whether [Mr Gaynor’s implied] right to freedom of political communication was impermissibly impaired by the termination decision.” On this point, the Full Court Stated:

"[A]lthough [Justice Buchanan] … recognised the point made in the authorities about the freedom of political communication being a limit on legislative power rather than an individual right, in the application of the Lange test, as refined and developed in Coleman and McCloy, the learned primary judge moved to an analysis of the termination decision which treated [Mr Gaynor] as having a constitutional right to express himself on political matters, which right had been unduly infringed (in his Honour’s view) by the termination decision. That was not the analysis the constitutional question called for."

The Full Court then correctly applied the test to reg 85(1)(d). Regarding the First Limb, the Full Court reasoned that the regulation is capable of burdening freedom of political communication because it exposes officers who communicate political views which are at odds with ADF interests to the risk of having their service terminated.

Turning to the Second Limb, the Full Court noted that reg 85(1)(d) was not intended to control public communications, but rather provided a disciplinary tool for preserving desirable membership within the ADF. This purpose, the Full Court considered, was rationally connected to preserving the integrity of the system of representative and responsible government. In this context, the “broad discretion” conferred by reg 85(1)(d) was “suitable, necessary, and adequate in balance”.

Allowing the ADF’s appeal, the Full Court concluded:

"Any restriction of the freedom of political communication likely to result from … reg 85(1)(d) … would be confined to extreme circumstances, where the conduct and behaviour of an officer is well beyond the bounds of what the ADF can be expected to tolerate in one of its officers … The circumstances of [Mr Gaynor’s] comments are, in our opinion, aptly described as extreme, including his refusal to accept and abide by orders and directions given to him. Any potential harm to the freedom of political communication is outweighed by the need to reserve to the repository of the power the ability to terminate the service of individuals whose conduct and behaviour … [is] sufficiently serious …

Therefore, while the scope of the power in reg 85(1)(d) was wide, in our opinion it was sufficiently confined by the objects and purposes of the statutory scheme in which it appears that it can properly be described as suitable, necessary, and adequate in balance with respect to any burden it imposes on the implied freedom."

Implications for statutory employers

The Full Court has confirmed that the right to freedom of political communication is not an individual right. Rather, the implied right acts as a limit on the exercise of legislative and executive power. With this in mind, statutory employers should be aware that a specific decision to terminate the employment of an employee pursuant to a legislative instrument cannot be challenged on the grounds that the specific decision offends an individual’s right to freedom of political communication. If the employee were to challenge the decision on the basis of the implied right, they would need to challenge the validity of the legislative instrument pursuant to which the decision to terminate the employment was made.

Implications for employees of statutory employers

While it is unlikely that many employees will be as forthright in openly criticising their employers as Mr Gaynor, employees should generally consider being circumspect in publicly voicing opinions that relate to their employment and may adversely affect their employer’s interests.

This article was first published in the Employment Law Bulletin, Vol 23 No 4, May 2017

^[1] This was done after Mr Gaynor exhausted all internal review avenues, by way of application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), as well as on constitutional grounds.^{Back to article}