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Israel Folau should be held accountable for his latest homophobic rant

Date: 17/04/2019

Rugby Australia has served a breach of contract notice on Israel Folau following his latest rant about homosexuals being destined for the fires of “hell”. Folau will have an opportunity to respond to the allegations by way of a code of conduct hearing, before a final decision is made. 

This could be seen as Rugby Australia going through the motions, as they have already made their position quite clear.  Last week Rugby Australia issued a statement: “As a Code, we have made it clear to Israel formally and repeatedly that any social media posts or commentary that is in any way disrespectful to people because of their sexuality will result in disciplinary action. In the absence of compelling mitigating factors, it is our intention to terminate his contract.”

The statement went on to say: “Whilst Israel is entitled to his religious beliefs, the way in which he has expressed these beliefs is inconsistent with the values of the sport. We want to make it clear he does not speak for the game with his recent social media posts”.

This is not the first time that Folau has expressed his personal views. Last April, in response to a question on Instagram “What was God’s plan for gay people??”, Folau replied “HELL... unless they repent for their sins and turn to God”.

Folau was not disciplined at the time and subsequently signed a new 4 year contract with Rugby Australia which is understood to have had specific prohibitions relating to his use of social media.

Whilst Rugby Australia has yet to formally make its decision, there has been significant public debate as to whether Folau should be entitled to express his personal views, and whether he is in fact being discriminated against on the grounds of his religious beliefs.

There is no doubt that Folau is genuine, and his religious convictions may also compel him to believe he should share his views, in the misguided belief that he may be able to save some poor homosexual souls.

In New Zealand, the right to freedom of expression is set out in the Bill of Rights Act 1990, which states that everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form.

The High Court has found that this fundamental freedom guarantees “everyone[the right] to express their thoughts, opinions and beliefs however unpopular, distasteful or contrary to the general opinion or to the particular opinion of others in the community”.

The Bill of Rights Act does impose some limitations on the rights and freedoms contained in the Act, but these are very restricted. In particular they are “subject only to such reasonable limits, prescribed by law as can be demonstrably justified in a free and democratic society”.

These limitations reflect that the rights and freedoms provided by the Bill of Rights Act do not exist in a vacuum and must take into account the public interest and the rights of others in the community. However, the Courts in New Zealand have consistently taken a very stringent approach to limiting these fundamental rights and freedoms.

Hate speech, and forms of communication that could cause harm to others are likely to come within the “reasonable limits” to freedom of expression. However, views that are obnoxious or offensive to others, such as Folau’s, are unlikely to reach this threshold.

Australia does not have a Bill of Rights Act but its constitution recognises freedom of religion. Further freedom of expression is a right that is recognised at international law, and accordingly the above principles are likely to apply in this context.

Based on this, Folau may well claim that his fundamental right to freedom of expression justifies his actions, and in turn means that Rugby Australia has acted unlawfully. However, this fails to take account of the fact that Folau is in a privileged position as a result of his role as an international rugby league star, and by virtue of the platform that this provides him. He is an influencer, and has access to a broad audience, precisely because of his position.

Further, Rugby Australia has social responsibilities as a national body with significant influence over the views and expectations of people in the community. It also has a brand and sponsorships to protect.  Folau, in turn, has obligations to Rugby Australia to safeguard its values and reputation, and not act in a way that might undermine these.

As far as the suggestion that Folau himself is being discriminated against because of his religious beliefs, this is not the case at all. It is not his beliefs that are at issue, but his need to share these with the world, despite previously being counselled not to.

Rugby Australia gave Folau a chance to learn from his actions in 2018, and to be “humble”, a virtue which he consistently preaches. Despite this, he has deliberately and repeatedly disregarded the reasonable direction of his employer and should now be held accountable.