The High Court should rule on Folau.

The Rugby Australia Code of Conduct Panel has ruled that Israel Folau has committed a high-level breach of his contract potentially becoming the first major Australian sports star to be fired for expressing a religious belief.

Even though this hearing took much longer than anticipated, I hope that this is not the end of the game. The debate on competing rights is more important than just one person and needs to go to the High Court.

Rugby Australia argued that the Folau matter is not a matter of ‘Freedom of religion’. They claimed it to be a matter of breach of contract. To my mind this line of argument misses the whole point of whether having a restriction on the freedom of expressing one’s religion can or cannot validly be put in an employment contract in the first place.

Critically the panel has no legal authority to rule on whether it is legal or not to have a religious expression restriction in an employment contract in the first place.

The Folau case could determine if employers can put in our workplace contracts a restriction on all our religious views outside of work, not just Folau’s. Placing a contractual restriction on religious expression and then sacking someone in Australia for expressing that mainstream view, like the Christian teaching Folau expressed, is not something this country has accepted as a norm.

Many people have become quite passionate on the subject either because they believe strongly in the freedom of religion, or the freedom of speech, or because they believe in freedom from offence, or because they just want the Wallabies to do well at the World Cup.

Perhaps ironically, in the lead up to this decision, in my view some people have expressed views so strongly that they become potentially offensive in their defence of the freedom from offense.

Former Australian rugby Captain Peter Fitzsimons, writing in the Sydney Morning Herald, said:

“Folau can believe whatever he damn well pleases, including the illogical and offensive absurdity that the same omnipotent Lord who made some of his creations attracted to their own gender will also have them burn in the pits of hell for all eternity, for their trouble”

I can imagine that a good proportion of the 52% of Australians who at the last census said they were Christian could quite reasonably be offended at their religion being called “illogical and offensive”. Indeed, a Christian reading this in Tasmania, a State with wider laws than New South Wales where Fitzsimons and Folau live, might well make a formal complaint to the police as Section 19 of the Tasmanian Anti-Discrimination Act says:

“A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of … religious belief”.

Could Fitzsimmons be ridiculing a religion with this sentence? Perhaps yes.

The same Tasmanian legislation notes that one can’t ridicule based on sexual orientation either.

Folau argued that he was neither ridiculing nor inciting violence. He argues exactly the opposite. Folau argues that given his belief that the atheists, drunkards, thieves, homosexuals etc will go to hell, unless they repent is a call for them to repent precisely because he does not want them to go to hell. He argues his call is based both on love and the fundamental teachings of his religion.

I don’t share Folau’s beliefs in either God or that people like me will go to hell. I set my disagreement with Folau on these pages here. But I do accept his argument that his intentions were both good and entirely consistent with the teachings of his mainstream religion.

In international law there is a broad understanding of both freedom of religion and freedom of expression, and when these rights can be restricted. But there is no international law on freedom from offence, nor prohibitions on discrimination on the basis of sexual orientation. In some countries homosexuality is, wrongly, punished by death.

I do not agree with Falou’s views nor his religion. It is my opinion that Christian teaching is consistent with societal expectations at the time the bible was written. For me, I dismiss the views as out of date and irrelevant to me.

On the other hand, I am far more offended by the notion of people like Fitzsimons that employers have the right to restrict employee’s expression of their religion outside of the workplace.

To my mind it is not a far jump from the views of Fitzsimons to a job advertisement reading “Christians need not apply”. That is far more relevant and offensive to me than a, in my view, fictional god sending me to a fictional place.

In Australia the six states, two territories and the federal jurisdiction create nine different approaches to competing ‘rights’.

It is for this reason, for whatever reason you feel passionately about the subject, that it is time our highest court ruled on the issue. We have competing rights at play and in our system only a court can rule on competing rights.

This article was first published in The New Daily on May 8, 2019, here.

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