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How Might Folau’s Court Case Impact Religious Freedom?

Sacked Australian Rugby player Israel Folau decided earlier this month to begin legal proceedings against his former employer Rugby Australia. He has recently produced a YouTube video explaining his decision, and opened up a GoFundMe page to raise funds for his legal expenses (which has since been closed down by GoFundMe).

This high profile court case will likely have ramifications for religious freedom here in Australia. As such, TGCA spoke to Associate Professor Neil Foster to gain insight into this event. 


TGCA: Why exactly is Israel Folau taking his former employer to court?

I don’t have access to the court documents which have been filed, but based on news and other internet reports it seems that the situation is as follows: he seems to be making a claim under s 772 of the Fair Work Act 2009 (Cth) (“FWA”), which provides:

An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:..(f)…religion.

This provision was inserted into the Act to implement Australia’s obligations under some international conventions drafted by the ILO (the International Labour Organisation), referred to in s 771 of the FWA.

To repeat what I have previously said on my blog:

One obvious question is whether the termination here has been for the “reason” of Mr Folau’s religion. His exhortation was a paraphrase of a Bible verse, and accompanied by an encouragement to repent and seek salvation in Jesus Christ. But it might be claimed that the termination was not on the basis of his religion, but rather on the basis of his choosing to express his religion in a way which insulted or offended homosexual persons.

The question is a complex one. Being able to express one’s view on religious issues is a fundamental part of religious freedom under international law, although of course this right may be limited by other rights. But the international law limits on religious freedom are quite narrow, and (as has been noted by Professor Aroney from UQ Law School) the prohibition on “hate speech” in art 20 of the ICCPR would not be applicable in this case.

Under the FWA it only needs to be shown that “one” of the reasons for the termination of employment was religion. The question that may need to be resolved is the extent to which a religious employee should be allowed (on their own platform, and on their own time) to make comments motivated by their religious beliefs, without suffering the extreme penalty of termination. Note also that under FWA s 783, once it is alleged that religion was a reason for termination, the onus of proof that it was not lies on the employer.

The process requires him to attend a conciliation conference of some sort with the FWA, and then if that doesn’t lead to a resolution he can file a claim in the Federal Court.

Note that it is also possible that he may like to claim a breach of contract- the argument here would be that the contract says he will only be sanctioned in case of certain types of behaviour (such as “shar[ing] material on social media that condemns, vilifies or discriminates against people on the basis of their sexuality”) and he could try to argue that what he did, did not amount to those things.

TGCA: How likely is he to win?

I’m not sure. On the one hand his comments were clearly an expression of his religious beliefs, and shared in a private forum (in the sense that his own Instagram account is not said to somehow represent official views of RA). On the other hand it could be argued that as a high profile celebrity he should have been more careful. But I think it really is impossible to say.

TGCA: What are the ramifications for the rest of us if he does win?

A victory in his case would be helpful as sending a message that believers have the freedom to speak in accordance with their faith, even when saying something that offends. And perhaps in persuading employers that they should not try to rely on over-broad “codes of conduct”. Sure, if you are an LGBT support group, it is reasonable to ask your employees not to say things that may offend clients. But if this area is not a part of your “core business”, allow employees freedom to speak about their faith.

TGCA: What are the ramifications for the rest of us if he loses?

If he loses his case, it will in my view send a message to corporate Australia that they can require uniformity of opinion on controversial topics. It may lead to further restrictions on what Christians can say in public.

It was disturbing to see that one of the recent articles made a big deal about what Israel had said in a sermon to a small group of believers in his local church. Even if a copy was made available on the church Facebook page, it was by no means something which was intended to reach a large audience. Attacking sermons is a new low which is dangerous for the freedom to preach the gospel.

TGCA: How should Christians respond to this court case?

I think we should pray for the preservation of the right to speak openly about the Bible’s teaching. We should pray “for kings and all those in authority, that we may live peaceful and quiet lives in all godliness and holiness. 3 This is good, and pleases God our Savior, 4 who wants all people to be saved and to come to a knowledge of the truth.” (1 Tim 2:2-4).

TGCA: Is there anything Christians should keep in mind?

Like many other Christians, I would like to stay away from conflict. But I think this battle that Israel is involved in, is one that does have possible wider ramifications for the freedom of gospel preaching around Australia, and we should pray for him to have the courage and wise counsel as he navigates the process, and support him in his fight.


 


 

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