The Israel Folau saga has moved to a new territory with the player now appealing the decision to terminate his contract with Rugby Australia. The dispute will shortly come before a three-person conduct committee. It is unlikely the matter will end there as there will be, most probably, an appeal and ultimately protracted hearings in the courts.
The topics of religious discrimination, discrimination against gay people and the right of employees to express personal opinions on social media raise complicated and uncertain issues.
We do not have a bill of rights in this country. The implied freedom of political communication does not confer a personal right of action. In addition, the argument as to whether we should have a Religious Discrimination Act is highly politicised. All these factors muddy the waters.
In the past, however, it has been possible for commentators to point disapprovingly at the conduct of employees whose services were terminated for inappropriate email commentary. An SBS presenter, for example, had allegedly breached his employer’s code of conduct by accusing the Anzacs of criminal behaviour. His termination was asserted to be an appropriate response by the employer because the commentary “may be substantially inaccurate, in bad faith and deeply hurtful to most Australians”.
The position with Israel Folau is arguably different. He asserted on his Instagram account that “hell awaits” drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolators.
Clearly he speaks from a genuine and deeply held religious conviction. He is otherwise a person of exemplary character and his opinions, while plainly offensive to some, are more or less consistent with a point of view not uncommonly expressed in churches and mosques around Australia.
On the other hand, it will be argued that Folau is in breach of his employment contract or at least in breach of Rugby Australia’s code of conduct.
As to the first argument, it seems likely that there is no specific provision in his contract prohibiting him from expressing publicly his religious convictions. As to the second argument, its success will depend on whether he has brought the game into disrepute and whether he has breached his employer’s inclusion policy.
These are matters about which many commentators, examining the definitions, may draw different conclusions. Do his social media comments constitute harassment? Are they, according to the policy’s definition, “homophobic”?
The uncertainties do not end there. The code of conduct defines matters that label a breach as “high level”. These include that “the conduct may have caused offence to the general public’s sensibilities” … and that … “The conduct more than likely breaches Rugby Australia’s core values.”
These are very difficult concepts about which reasonable minds might differ. Even Rugby Australia’s inclusion policy is not without its difficulties. Clearly the intent is to whole-heartedly “include” the gay community in the rugby movement. But is its intention to “exclude” traditional Christian and other religious beliefs? The controversy threatens to become a legal and moral minefield.
There is an element of hypocrisy in the way in which this matter has developed. While Rugby Australia’s reaction can be well understood, it must be said that the threat of losing its major sponsor, and the financial consequences of this happening, are plainly an important factor in the decision to terminate Folau’s contract.
Moreover, as has been noted elsewhere, there is a certain irony in Qantas’ position. This is because its commercial interests are closely allied with partners from countries which overtly criminalise and punish gay people.
The controversy also threatens to divide team-mates.
Israel Folau’s place at the Rugby World Cup is at risk after last week’s controversial social media posts.
It is a reasonable inference to conclude that Rugby Australia has “gagged” other Waratah and Australian players who plainly would hold the same beliefs as Folau.
Israel Folau is a famous sportsman. Even if his services are terminated, his views will still be expressed in the public arena.
Inevitably the divisiveness of this issue among the general public is likely to endure.
– Anthony Whealy is a former NSW Supreme Court judge and ICAC assistant commissioner.