Statement regarding Federal Court decision in Gaynor v Chief of Defence Force

On Friday I won my legal challenge against the former Chief of Defence Force (CDF), David Hurley, overturning his decision to terminate my appointment as an officer in the Army Reserve.

A brief background to this decision can be found here.

At the outset, I would like to thank my wife for her support throughout this three year battle. She has suffered more than anyone during this process and has endured stress, financial hardship and insults to her family without complaint. Her bravery inspires me every day and our seven children are fortunate indeed to have such a wonderful woman as their mother.

I would also like to thank my parents and wider family for their support and encouragement. My father is retiring from the Australian Army after 40 years of service in January. This victory is the best present one could provide for a man who has dedicated his life to serving Australia. It is a just reward for the great difficulties and unjust treatment he has faced silently since 2013.

I must thank the many thousands of Australians who have been watching this legal challenge with keen interest, particularly current and ex-serving members of the Australian Defence Force. Without their assistance and generosity, I simply could not have continued this challenge. This victory truly has been a team effort. I have received great joy to hear of the celebrations that have occurred across Australia following the Federal Court’s decision.

Great thanks go to my legal team, led by Robert Balzola. They have worked very hard and argued this case very well. I also thank the Defence legal officers who helped me respond at the outset to the initial notice to show cause, issued by the former Chief of Army, David Morrison.

I thank the Federal Court for its unemotional deliberation and consideration of this case.

Most importantly, I must thank God. Truly this victory is His. The words on the hat badge of the Australian Army chaplains best sum up this victory: In this sign conquer.

The legal effect of the Federal Court’s decision is that my service as an Army Reserve was officer was never terminated.

The Federal Court ruled that the termination decision was unlawful because it violated the implied constitutional right to express private political opinions.

This decision is an important win for freedom in Australia and one that all Australians will benefit from, regardless of their political views. It preserves the right for all Australians to express their political opinions as citizens of Australia.

I must make this point: politicised militaries and democracies do not mix well.

The truth is that my personal political beliefs only became a matter of interest to the hierarchy of the Australian Defence Force because it embarked on a program that supports certain politically correct views. It should come as no surprise that shortly after the former Chief of Defence Force allowed uniformed participation in a political event for the first time (the Sydney Gay and Lesbian Mardi Gras) that Defence also began a process of punishing officers who lawfully expressed private political views that were deemed ‘non-compliant’.

It should be of the greatest concern in our Western democratic society that the hierarchy of the Australian Defence Force attempted to curtail the right to individual freedom of speech. It remains greatly concerning that elements within the Australian Defence Force continues to use this institution for partisan and uniformed political activity in Australia.

I hope that the leadership of the Australian Defence Force will use this Federal Court decision to return to its pre-2013 policies. These policies prohibited Defence members from political activity or attendance at political events in their official capacities, but allowed all Defence members to express private views, join political parties and even run for office. These policies are still in force today, but they are ignored. I have only ever sought to uphold these policies.

I am now in the process of working with the Australian Army to ensure that administrative arrangements are taken to put the Federal Court’s decision into effect without delay. I am satisfied that this decision is being taken seriously and I do not intend to comment further on this process.

However, the Australian Defence Force now has 28 days to appeal this decision.

I hope it does not. The Australian Defence Force has protected freedom in this nation. It would be disappointing to see it mount a legal attack on the very freedoms that service men and women have died to protect.

Author: Bernard Gaynor

Bernard Gaynor is a married father of eight children. He has a background in military intelligence, Arabic language and culture and is an outspoken advocate of conservative and family values.

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