Right: Israel Folau is one of the best-known names in rugby-mad Queensland - and it's no surprise to find the star has had an Ipswich street named after him
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Arguments against Rugby Australia terminating Israel Folau's contract
1. Israel Folau's comments are not homophobic
Those who defend Israel Folau's comments as not being homophobic note that they are not prompted by hatred or malice, but rather by concern and by his sincere religious beliefs. They also note that Folau has issued the same warning to other groups he believes are in danger of damnation.
Folau has argued that his social media warnings that homosexuals, among a large group of others, will go to hell unless they alter their behavior were not homophobic statements.
Folau has claimed that he has nothing but good intentions toward homosexuals. He wrote in an opinion piece published in Players Voice on April 16, 2018, 'Since my social media posts were publicised, it has been suggested that I am homophobic and bigoted and that I have a problem with gay people. This could not be further from the truth.
I fronted the cover of the Star Observer magazine to show my support for the Bingham Cup, which is an international gay rugby competition for both men and women. I believe in inclusion. In my heart, I know I do not have any phobia towards anyone.'
Folau has further explained, 'I believe that it is a loving gesture to share passages from the Bible with others. I do it all the time when people ask me questions about my faith or things relating to their lives, whether that's in-person or on my social media accounts.
Folau believes that his comments are a warning to people as to how they should live their lives in order to achieve salvation. He has stated, 'I think of it this way: you see someone who is about to walk into a hole and have the chance to save him. He might be determined to maintain his course and doesn't want to hear what you have to say. But if you don't tell him the truth, as unpopular as it might be, he is going to fall into that hole. What do you do?'
Folau has further claimed that his focus is not narrowly on homosexuality but on all sinners as defined within the Bible. He has stated, 'In this case, we are talking about sin as the Bible describes it, not just homosexuality, which I think has been lost on a lot of people.'
Folau's supporters have noted that he offers his warning not only to homosexuals but to a wide range of people whom he believes the Bible states are living in sin. As Martyn Iles, writing for the Australian Christian Lobby (ACL) has noted, 'Far from being homophobic, Israel Folau's social media post was very inclusive - drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists, and idolaters - is a list which includes everyone, affirming the Christian teaching that all are equal in our need of salvation.'
Folau has also acknowledged that he is himself a sinner and that all people need to reform in order to achieve salvation, Folau has stated, 'People's lives are not for me to judge. Only God can do that. I have sinned many times in my life. I take responsibility for those sins and ask for forgiveness through repentance daily.'
Folau's position has been defended by Associate Professor Neil Foster of the Newcastle University Law School who has stated, 'Mr Folau&did not express any hatred for homosexual persons, or for others caught up in what he (and the Bible) sees as sinful behaviour. He did not express any contempt for them, or ridicule of them. Far from automatically condemning them (to use one of the Rugby Australia code of conduct words), he said that they were loved by Jesus, could be saved and receive eternal life if they chose to turn away from [their] sin and come to him .'
2. Rugby Australia's Member Protection Policy should safeguard Folau's freedom of religious expression
Supporters of Israel Folau's right as a player within Rugby Australia to practice and express his religious beliefs maintain that this right is specifically safeguarded by Rugby Australia's Member Protection Policy.
Rugby Australia's preamble to its Member Protection Policy states, 'Rugby Australia aims to ensure all participants are treated with respect and dignity and that they are provided with a safe and enjoyable environment in which to play or to otherwise be involved in rugby.
The Rugby Australia Member Protection Policy outlines our commitment to eliminate discrimination, harassment, harm or risk of harm.
The Member Protection Policy and the Rugby Australia Code of Conduct are both in place to provide a safe, fair and inclusive Rugby environment&'
Within the Policy itself, the purpose of the Policy is stated as, 'This Member Protection Policy (Policy) aims to maintain ethical and informed decision making and responsible behaviours within rugby. It outlines our commitment to a person's right to be treated with respect and dignity and to be safe and protected from abuse. This Policy informs everyone involved in rugby of his or her legal and ethical rights and responsibilities and the standards of behaviour that are required.'
In terms of Rugby Australia's responsibilities as outlined under this Policy, one of them is stated as to 'Promptly deal with any breaches of or complaints made under this Policy in an impartial, sensitive, fair, timely and confidential manner'. Critics of Rugby Australia maintain that Rugby Australia has not met its obligations to Israel Folau as outlined under its Member Protection Policy.
While those who condemn Folau maintain his remarks regarding homosexuals have breached the non-discriminatory behaviour requirement of both this Policy and the players Code of Conduct; Folau's supporters maintain that the Members Protection Policy offers Folau protection based on his religious beliefs.
The Members Protection Policy offers players and others protection against unlawful discrimination. This is described as: 'Unlawful discrimination involves the less favourable treatment of a person on the basis of one or more of the personal characteristics protected by state or federal anti-discrimination laws.' Among the 'personal characteristics' protected by state or federal anti-discrimination laws and thus similarly protected by Rugby Australia's Members Protection Policy is 'religion, religious beliefs or activities.' Critics of Rugby Australia argue that not only is the organisation not offering Folau protection against religious-based discrimination, Rugby Australia is itself discriminating against Folau because of his religious beliefs.
It has also been noted that the manner in which Rugby Australia has acted against Folau breaches the requirement that complaints be investigated in an impartial, fair&and confidential manner.' One day after Folau's contentious Twitter posts, Rugby Australia announced 'In the absence of compelling mitigating factors, it is our intention to terminate his contract'. This public statement pre-empted any subsequent examination of the circumstances surrounding Folau's case and was echoed by the Australian Rugby League Commission (ARLC) which similarly declared it would not support Folau's registration to play NRL. The ARLC's chairman, Peter Beattie, stated, 'Israel Folau fails the NRL's inclusiveness culture which is a policy strongly supported by the ARLC. The ARLC therefore would not support his registration to play NRL.'
These pre-emptory judgements appear to ignore the impartial, fair and confidential deliberations that the Members Protection Policy requires. This was noted by Darren Cane in an opinion piece published in The Sydney Morning Herald on April 26, 2019. Cane observed, 'So will Folau be sacked?...The inescapable reality is that this is the singular outcome Rugby Australia is petitioning for; RA all but announced that exact fate before it became apparent there is a code of conduct process to follow.'
3. Rugby Australia should not be able to restrict an employee's freedom of religious expression
Those who object to Folau being threatened with the termination of his Rugby Australia contract argue that such a penalty exceeds the legitimate reach of an employment contract and contravenes the employee's right to freedom of religious expression.
The Opposition leader, Bill Shorten, has expressed concern regarding the extent to which employment contracts should be able to penalise someone for expressing religious views.
Mr Shorten has stated, 'It's a contractual negotiation at one level but I'm uneasy about where that debate's gone.' While acknowledging the potentially hurtful impact of Folau's comments, Mr Shorten further stated, 'I think Israel Folau is entitled to his views, and he shouldn't suffer an employment penalty for it. So, I'm uneasy about that part of it.'
Australia has ratified the International Covenant on Civil and Political Rights, which declares that everyone has the right to freedom of religion.
In 1998, the Australian Human Rights and Equal Opportunity Commission declared that in accordance with the international treaties and conventions to which Australia is a signatory, 'The freedom of religion and belief extends to the right to manifest one's religion or belief in worship, observance, practice and teaching.' The Australian Law Reform Commission has further stated, 'Freedom of religion is infringed when a law prevents individuals from exercising their religion.' Those who defend Folau's position argue that any contractual obligation that would prohibit Folau from expressing his religious views restricts his right to provide religious teaching.
Religious discrimination in the workplace is also prohibited by the Fair Work Act 2009 (Commonwealth), which prevents an employer taking adverse action against an employee or prospective employee because of a range of attributes including religion.
Those who endorse the above views argue that any supposed breach of contract committed by Folau against Rugby Australia should attract no penalty as Rugby Australia had no right to attempt to limit contractually Folau's expression of his religious beliefs.
In addition to those who dispute that Rugby Australia should be able to restrict Folau's freedom of religious expression, Rugby Australia's chief executive officer, Raelene Castle, has conceded Folau did not have a social media clause in his contract. That is, there is nothing within his contract that directly limits his capacity to express his religious views via social media.
4. Social equality for homosexual Australians should not restrict other Australians' freedom of religious expression
Supporters of Israel Folau's freedom of religious expression have argued that, in the apparent conflict between the rights of homosexual Australians and the rights of those holding certain religious beliefs, the feelings of the first group have taken precedence over the beliefs of the second.
On May 11, 2019, The Australian's Legal Affairs Editor, Chris Merritt, argued that religious freedom guaranteed under international laws and conventions is circumvented by Australian anti-discrimination and anti-vilification laws which protect potentially marginalized groups from actions or comments which could give them offence.
Merritt has stated, 'Folau&[was] doing no more than exercising rights under international law that are set down in the International Covenant on Civil and Political Rights. The question of whether [his religiously-based] statements caused offence is not something with which international law is concerned.
Yet in this country, gripped as it is by a perverse culture of victimhood, the hurt feelings of others trump everything.
In the rest of the world, there is no right to be free from offence, as was made clear by Jim Spigelman, a former chief justice of New South Wales, when he delivered the 2012 Human Rights Day address.'
Merritt quotes Spigelman, who stated, 'The freedom to offend is an integral component of freedom of speech. There is no right not to be offended.'
The Australian Christian Lobby (ACL) is also protesting what it believes is the progressive and increasing removal of individual Australians' right to freedom of religious expression. The Lobby's Managing Director, Martyn Iles, has stated, 'We have been seeing the creep of compelled speech and slow removal of freedom for people of faith for some time now& All Australians should know that they are free to express their beliefs which form part of their identity without fear of being unfairly censored or discriminated against& This marginalises and silences a large portion of Australians who believe that sin is real, hell is real, and salvation in Jesus Christ is the equal answer for all, regardless of our identity or background.'
On May 4, 2019, ABC News reported that letters had been sent to the Prime Minister, Scott Morrison, and the leader of the Opposition, Bill Shorten, from Australian leaders of the Presbyterian, Baptist, Seventh-Day Adventist and Apostolic churches, as well as several religious school leaders. The letters each began 'In recent years the protections to be accorded to religious freedom, and the related freedoms of conscience, speech and association, have come under increasing focus within Australia& We write to invite you to provide clarification on a range of key issues that are important to the preservation of these freedoms in our country.'
5. Terminating Folau's employment is too harsh a penalty to apply
Folau's supporters argue that sacking the player is too harsh a penalty to apply.
This point was made by Will Knight in an opinion piece published in The Roar on April 11, 2019. Knight stated, '[Folau's] language was in bad taste, and it should be criticised, especially as Folau is popular and influential to younger fans. But to sack him - and it was reported last night that RA boss Raelene Castle intends to do so in the absence of compelling mitigating factors - would be too heavy a punishment. After his controversial Gays to Hell social media post a year ago, Folau deserved censure from Rugby Australia& But let's take a breath and remember he hasn't been violent or incited others to be.'
Knight has suggested a range of punishments that he believes to be more appropriate than termination. He has stated, 'This time, he should cop a suspension& Give him some community service involving coaching a gay rugby team such as the Sydney-based Convicts& That would be more meaningful than say a straight three-month ban, and more powerful than a sacking. What's to say Folau's eyes can't be opened and he can change his views?'
This point has been expanded further by Wally Mason in an opinion piece published in The Australian of April 11, 2019. Mason stated, 'We live in a society that has moved on from the days when Folau's view of the world predominated. One of the hallmarks of our considerably more progressive and accepting society is free speech. If Folau wants to spout this sort of rubbish, good luck to him.
Engage with him by all means. Expose him, explain the pain he is causing to young people struggling with their sexuality and make it clear that you don't find what he is saying is acceptable&
But to call for his sacking or suggest that sponsors should withdraw their support for the Wallabies or the Waratahs suggests a lack of confidence in our values.'
It has also been noted that Rugby Australia players who have committed clearer and less mitigated breaches of the game's Code of Conduct have not been sacked. This point was made by Ben Treseder, on The Australian's Facebook page, on May 1, 2019. Mr Treseder stated, 'What I find interesting is the NRL have said he is not welcome yet we have players who have been to jail and been given second chances, players who have assaulted people on drunken rampages, players behaving badly yet Folau quoted the Bible??'
The same point was made by Peter Southam, in an opinion piece published in Mumbrella on May 9, 2019. Southam stated, 'In recent years, two Wallabies players have been fined and stood down for drug use and possession. One of them is a two-time offender. Neither was sacked. Apparently sniffing cocaine is not a high-level breach of contract. Israel Folau doesn't drink, doesn't take drugs and is a model player on and off the field.'