The Devil is in the detail

By Tom Atkinson

Over recent months, Israel Folau has dominated the headlines in Australia.

Folau’s Instagram posts outlining his views towards various subsets of society, most notably the gay community, have drawn a bold line right through the middle of Australian society. He has since been fired by Rugby Australia, and is seeking legal action to what he considers an infringement on his Rights to freedom of religion and free speech. Many agree, and many do not.

As with many social debates, the opposing sides find themselves with their flag firmly stuck in the ground and far away from the centre. So what has transpired here? Has Israel Folau been denied his right to religious freedom, or has he simply breached a code of conduct in a contractual agreement?

As I found out, the answer is complex and far from clear.

Now let’s outline the integral parts of the Folau conundrum. Freedom of speech, freedom of religion, anti-discrimination and contractual law.


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Freedom Of Speech

This is a central argument for Israel’s supposed unfair treatment, and whilst this particular debate centres more around religion, starting with this is most pertinent as it seems to constantly feature on our social landscape these days.

Freedom of speech does not exist in the way that many who use it as a fail-safe believe it does. Whilst civil discourse should be of the utmost importance, the view that an overarching “freedom of speech” law exists as a monopoly-like get-out-of-jail-free card is foolhardy.

In fact, its quite the opposite. There is no Commonwealth legislation enshrining a general right to freedom of expression.

Article 19 (2) of Australia’s Freedom of expression law states:

The right in article 19(2) protects freedom of expression in any medium, for example written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising. The right protects not only favourable information or ideas, but also unpopular ideas including those that may offend or shock (subject to limitations). Freedom of expression carries with it special responsibilities, and may be restricted on several grounds.


There are limitations on our freedom of speech in many ways. In the eyes of criminal law, speech is far from free. Verbal harassment, hate-speech and false and misleading advertising are all legal curbs on freedom of speech. The Australian commonwealth is not a domain where you say as you please, completely free of any ramification or scrutiny. A company can not use freedom of speech as a defence if they advertise a Bentley and send you a backpack. A person can not use it as a defence if they have made verbal threats of violence in a case of a No-Contact order. A religious leader can not hide behind it if they are calling for discrimination against others, or inciting violence.

It also exists on a corporate level. Try being sponsored by Coca Cola and McDonalds and posting about your love of KFC and Pepsi. There’s a reason why players in sporting World Cups can’t advertise certain products or wear jerseys and boots plastered with banners like a dodgy website. This would be breaching several codes of a formal contract, and after all this is what Israel Folau is accused of doing.


In my opinion I have no doubt that the officious and self-important QANTAS CEO Alan Joyce would’ve flexed his muscle by interjecting heavily in the matter, it comes at a time whereby Rugby Australia can ill-afford any financial setbacks. Qantas donates tens of millions of dollars to the organisation each year and would have a right to question why players escape sanction whilst contradicting the core values of both the Sponsor and Sponsored. It’s also important to remember that this was not a one of incident of a player expressing his religion and getting booted like a pub drunk. Israel was warned by his boss of the alleged breach and action was taken after several attempts of mediation. This process was confirmed by Israel himself, and he chose to stand his ground which left Rugby Australia with an option to enforce the termination of his contract. Which leads us nicely into the next point.



Folau’s Contractual Obligation


The key point for those who are not in support of Folau is that this was a breach of contract with his employer rather than a denial of religious freedom. The Unsportsmen’s unofficial legal council and friend of the show - Drew Hamilton, who is several dozen rungs above Dennis Denuto, clarified a few key points for us;

The legal contractual argument is straightforward;

  1. Israel Folau enjoys a contract of employment with Rugby Australia (RA)

  2. Essentially, he is a contracted employee with clearly understood obligations to his employer (RA);

  3. RA have a contract in place to protect their core values, one of which is inclusiveness;

  4. Israel Folau was warned to “stop that” as he risked breaching this agreement as the conduct is a clear breach of contract;

  5. Israel Folau continued to act in the way he did and as such RA were entitled to act on this breach of protect their brand/core values.

However, as our legal source went on to explain, the moot point comes in whether Rugby Australia has the right to dictate a player’s social media account.

The case of ComCare vs Banjeri was a reasonably similar case in terms of censoring government employees’ tweets. In that case, a woman working for the department of immigration made anonymous tweets criticising government practice. The department were tipped off and after an investigation, she was fired.

In the High Court ruling, it was deemed an unlawful dismissal under a certain wording of the contract which featured the phrase “at all times”. Basically, the government employee was expected to behave in such a manner relevant to her contractual obligations, at all times. An appeal is still ongoing, but this could open the door slightly for Folau to claim a similar unjust control of personal life has taken place.

As aforementioned, Folau did have attempts of mediation rather than an instant dismissal which could in turn hamper the ComCare vs Banjeri as a legal precedence.

But was Folau’s dismissal unjust, because he was simply espousing a religious view?

  





Freedom of Religion

This is where the conversation becomes incredibly nuanced.

Israel Folau certainly has a right to freely practice his religion. However, any religious beliefs should be balanced against the rights of others.

This includes the basic human right of being free from discrimination based on sexuality. Philip Ruddock led an inquiry into religious freedom in Australia in 2017, and this was one of the overarching messages. Any person practicing and spreading a religious message must consider human rights of non-religious people.

Having spent a large portion of the last few days combing through the Australian Human Rights Commission Reviews and Laws, I found that this appeared often. For example, under chapter 4.1 article 15 of the Human Rights Review it states;

Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

It could certainly be argued that Folau’s views are persecutory.

More specifically;

First, careful scrutiny must be given to any negative consequences that flow to an individual where a law impels them to seek to avoid an interference with the exercise of their right to freedom of religion. It would be a significant restriction that impels individuals to resign and seek new employment in order to continue to exercise their freedom of religion. That said, the jurisprudence also makes clear that each such instance must be considered in its own specific context, including with reference to the other human rights engaged.

It becomes an incredibly complex argument of whether Folau is simply upholding his religious beliefs, or infringing upon basic human rights of others.

In any case, interpretation exists once more. Would we be as lenient on religious freedom if he was a member of the Westboro Baptist Church, picketing dead children’s and soldier funerals? Anyone arguing that you may not dictate the extent to which someone can practice and preach their religion must say the same for a group like the Westboro Baptist Church. Yet amazingly, they are one of the most collectively despised groups in western society.

Additionally, there are many verses in the bible that if preached by anyone would be widely condemned. The argument that “he was just quoting a bible verse” is flimsy.

"See, the day of the Lord is coming — a cruel day, with wrath and fierce anger. . . . I will put an end to the arrogance of the haughty. . . . Their infants will be dashed to pieces before their eyes; their houses will be looted and their wives violated." (Isaiah 13:9–16 NIV)

Doesn’t quite command the same respect, does it?

I suspect there are many religious athletes in a multitude of codes across the earth who share Israel’s belief, yet choose not to jeopardise the human rights of others in doing so. This is key in the Folau outcome. He wasn’t sacked simply because he is a Christian, yet he still may have some legal grounds to claim so.


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The Sacking, and GoFundMe

Rugby Australia tried multiple times to appease Folau, and he escaped sanction for most of his religious posts. In the early days when he expressed his view about same-sex marriage in 2017, he then wrote an article for the website playersvoice.com.au

Folau was not reprimanded for his constant social media application, yet in the same article acknowledged that Rugby Australia had a business to run. He seemed to have some understanding that his views were controversial, and place Rugby Australia in a precarious position with the community. He also seems to recognise the unrest it could create with stakeholders who do not wish their company to align themselves with such rhetoric. He also states that if his position became untenable, that he would immediately walk away from the game. This is a stark contrast to the Folau we see now. He is mobilising for a fight in which he believes he is owed $10 million dollars in damages.

Folau continued his controversial public view unpunished until one day Rugby Australia had had enough. Even in the final mediation the organisation offered a compromise to Folau. Delete the posts and refrain from doing so in future and continue your contract as normal. He declined.

Folau was not fired for being Christian, he was given every opportunity to stay. He was asked to consider the extent of his public opinion which contradicted the organisations position, jeopardised sponsorship, violated human rights of others, and breached his contract. He was always free to continue his beliefs and sermons. He declined.

To top it all off, the man that was one of the wealthiest athletes in the country with a luxury property portfolio and flashy cars has asked the public to cough up for his court cost. Religion and free speech aside, this wreaks of a lack of decency. Folau is capitalising on the social divide, that seemed to be drawn with the Marriage equality plebiscite. As of now, he has a tick under $1M AUD thanks to a helping hand from the powerful Australian Christian Lobby.

All this despite 12 months ago writing an article where he effectively said he knew the risks and would walk away if he was damaging the game. If this is all for a divine cause, then surely Israel would be willing to sacrifice his material goods to fight for what he believes is right.

It couldn’t possibly be for another mansion or Lambo could it?

This case will get messier than a club rugby scrum as the days go on. What is a swarth of legal detail on many fronts, is set to intensify to a backdrop of social carnage. Watch this space.

Again, a special thank you to friend of The Unsportsmen - Drew Hamilton - for his excellent guidance in clarifying the legalities of the case and exposing all the moving parts of Folau’s case. Thank you Drew.

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