The Israel saga Folau moved to a new territory with the player now appealing to the decision to terminate his contract with Rugby Australia. The dispute will soon reach a three-person conduct committee. It is unlikely to end there, as there will probably be an appeal and, finally, lengthy court hearings.
Topics of religious discrimination, discrimination against gays, and the right of employees to express personal opinions in social media raise complicated and uncertain issues.
We do not have a rights list in this country. The implicit freedom of political communication does not confer a personal right of action. In addition, the argument about whether we should have a Religious Discrimination Act is highly politicized. All these factors confuse the waters.
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* Benji: Folau can not be allowed back
* John Hopoate defends the position of Folau
In the past, however, commentators may have objected with disapproval to the conduct of employees whose services were terminated by inappropriate e-mail comments. An SBS presenter, for example, allegedly violated his employer's code of conduct, accusing the Anzacs of criminal behavior. Its termination was affirmed as an appropriate response by the employer because the comment "may be substantially inaccurate, in bad faith and deeply detrimental to most Australians."
The position with Israel Folau is arguably different. He stated in his Instagram account that "hell expects" drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters.
Clearly he speaks of a genuine deep-rooted religious conviction. He is otherwise a person of exemplary character and his views, while clearly offensive to some, are more or less consistent with a view not uncommonly expressed in churches and mosques throughout Australia.
On the other hand, it will be argued that Folau is violating its employment contract or at least violating Rugby Australia's code of conduct.
As for the first argument, it seems likely that there is no specific provision in his contract that forbids him from publicly expressing his religious convictions. As for the second argument, his success will depend on whether he has discredited the game and whether he has violated the inclusion policy of his employer.
These are subjects on which many commentators, examining definitions, may draw different conclusions. Do your social media comments constitute harassment? Are they, according to the definition of politics, "homophobic"?
The uncertainties do not end there. The code of conduct defines issues that label a violation as "high level." These include that "conduct may have offended the sensibilities of the general public" … and that … "Conduct more than likely violates the core values of Rugby Australia."
These are very difficult concepts about which reasonable minds may differ. Even the inclusion policy of Rugby Australia is not without its difficulties. Clearly, the intention is to "include" the gay community wholeheartedly in the rugby movement. But is it intended to "exclude" traditional Christian beliefs and other religious beliefs? Controversy threatens to become a legal and moral undermining field.
There is an element of hypocrisy in the way this subject developed. Although Rugby Australia's reaction can be well understood, it must be said that the threat of losing its main sponsor and the financial consequences of this are clearly a major factor in the decision to terminate Folau's contract.
Moreover, as has been observed elsewhere, there is a certain irony in Qantas's position. This is because their business interests are closely linked to partners in countries that criminalize and openly punish gays.
The controversy also threatens to split teammates.
Israel Folau's place in the Rugby World Cup is at stake after controversial posts on social networks last week.
It is a reasonable inference to conclude that Rugby Australia has "gagged" other Waratah players and Australians who would clearly have the same beliefs as Folau.
Israel Folau is a famous sportswriter. Even if your services are closed, your opinions will still be expressed in the public arena.
Inevitably, the division of this issue among the general public is likely to endure.
– Anthony Whealy is a former Supreme Court Justice of NSW and assistant commissioner of ICAC.