Chief of the Defence Force v Gaynor [2017] FCAFC 41

FEDERAL COURT OF AUSTRALIA

Chief of the Defence Force v Gaynor [2017] FCAFC 41 Appeal from: Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370; 237 FCR 188

File number: NSD 1685 of 2015

Judges: PERRAM, MORTIMER AND GLEESON JJ

Date of judgment: 8 March 2017

Catchwords: CONSTITUTIONAL LAW – implied freedom of political communication – termination of respondent's commission in Australian Defence Force – regulation 85 of the Defence Force (Personnel) Regulations 2002 (Cth) – primary judge set aside termination because respondent's political comments protected by implied freedom of political communication – appeal allowed – primary judge erred in applying Lange test at wrong level – McCloy v State of New South Wales (2015) 89 ALJR 857 applied CONSTITUTIONAL LAW - s 116 of the Constitution – s 116 not engaged ADMINISTRATIVE LAW – primary judge found no administrative grounds made out – respondent contended primary judge erred in applying ss 5(1)(b), (f), (h), 5(2)(a), (b), (c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – primary judge correct to reject administrative law challenges

Legislation: Constitution, ss 61, 68, 116 Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1), (2), 16) Defence Act 1903 (Cth), ss 8, 9(1), (2), (5), 9A(1), (2), 16, 30, 31, 50(1)(b) 124 Defence Force Discipline Act 1982 (Cth), ss 3, 27 Defence Legislation Amendment (First Principles) Act 2015 (Cth) Defence (Personnel) Regulations 2002 (Cth), regs 6(1)(g), 7(2), (3), 85(1), (1A), (2), (4), (5), (6), 119 Defence Regulations 2016 (Cth), reg 24