A former Katter’s Australia Party political candidate who was let go by the Australian Defence Force for his comments about gay people, transgender people, and Islam, has had his termination set aside by the Federal Court on Friday, citing implied protection of political communication.

Australian Defence Force Reservist Bernard Gaynor was sacked by the Chief of the Defence Force in December 2013, following months of internal dispute between the disendorsed KAP candidate and the ADF over Gaynor’s political press releases regarding the ADF’s involvement in the Mardi Gras parade, transgender officer Cate McGregor serving in the ADF, and Defence’s approach to Islam.

“I wouldn’t let a gay person teach my children, and I am not afraid to say it,” Gaynor said in a January 2013 press release. After those comments, Gaynor was suspended as a member of Katter’s Australia Party, but Gaynor persisted. After the ADF allowed officers to march in the Mardi Gras parade in their uniforms, Gaynor issued a statement accusing the ADF of “hypocrisy” for telling him to stop his political activities if he wanted to remain in the Reserves:

“The decision to allow soldiers to march in the Mardi Gras was offensive to many, many Australians. If Defence is truly equitable, it will now allow members to wear their uniform to any activity that promotes natural marriage.”

Targeting transgender members of the ADF, Gaynor said in the same release that “no soldier wants to be led by a commander that has voluntarily decided to have his balls cut off”, and he also said that the decision to allow women to serve in front-line combat “is a joke” and Defence was being used to “engineer radical social change in society”.

In March 2013, the Deputy Chief of Army wrote to Gaynor telling him to cease posting the press releases and linking them to his military service, which could be seen as a breach of Defence policy.

“Such comments run counter to the significant efforts made by the ADF over recent years to eliminate discrimination to encourage a diverse, harmonious workplace that reflects contemporary Australian society.”

In May 2013, the Chief of Army issued a termination notice to Gaynor. Despite ruling in Gaynor’s favour, Justice John Buchanan was often critical of Gaynor in his decision. He noted that Gaynor had “no real appreciation” for why the Chief of Army sought his sacking:

“I must say, his pleas that it was he who was truly tolerant sit uneasily with the objective record which is constituted by his public statements.”

Buchanan said that, contrary to Gaynor’s complaints, it was not unlawful for ADF officers to march in uniform in the Mardi Gras parade.

“[Gaynor’s] attempts to promote his own views were in no sense assisted by his attempts to stigmatise as illegal the things he opposed.”

Gaynor’s attempt to have the decision overturned under the administrative decision review law was rejected, as was his argument that ADF rules were in breach of the constitution for limiting his ability to express his religion. Buchanan found that Gaynor’s decision to publish the press releases were “based upon some notion of what his legal rights were, coupled with a desire to vent his personal opinions”.

Where Gaynor was successful, however, was with regards to the implied constitutional freedom of political communication (political communication is not explicitly offered protection under the constitution). Buchanan found Gaynor’s comments were made in a personal capacity, unconnected from the ADF, despite his membership in the ADF. Buchanan said when Reservists were not on duty, military discipline did not apply to them, and their freedom of political communication should not be limited at those times. However, Buchanan noted that “it does not appear as though [Gaynor] was making a useful contribution to the ADF in other respects, or was likely to in the future,” so there might be termination available on other grounds.

Gaynor is not the only one to raise issues about ADF’s involvement in Mardi Gras — ADF is just one of many uniformed organisations participating in the parade, including New South Wales Police, fire and ambulance services. Although a number of religious organisations participate in the parade, a letter contained in a series documents released under freedom of information by the Department of Defence last month reveals the Religious Advisory Committee in the Defence Force complained in 2014 that Mardi Gras was “political in nature” and was “harmful or insulting to many religious members of the Defence Force”.

A spokesperson for the Department of Defence told Crikey the judgment was being “closely considered” and would not make a further comment until that consideration had been completed.

Peter Fray

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