Israel Folau’s religious football: what comes next?

On 17 May 2019, news broke that Israel Folau, a professional Australian rugby player, had been dismissed by Rugby Australia over a controversial religious Instagram post last month. The post singled out gay people, among others, and suggested that they would go to hell should they not repent for their sins.

 

Rugby Australia’s decision followed the finding by an independent three-person panel that Mr Folau’s termination was justified on the basis that he had been given a warning by Rugby Australia in respect of this type of conduct previously.

While it remains open to Mr Folau to appeal this finding to a different panel, it has been reported that Mr Folau intends to instead pursue the matter in the Supreme Court of NSW, as he believes he has been persecuted on the basis of his religious beliefs.

What now?

Discrimination on the basis of religion is not currently unlawful under federal or NSW anti-discrimination law.

While some disputes involving allegations of religious discrimination have been the subject of litigation in recent years, this has been supplementary to allegations of racial discrimination against both Sikhs and Jews, as discrimination on the basis of race is unlawful.

As Mr Folau identifies as Christian, however, it appears unlikely that he will be able to link his faith to his ethnicity and bring a claim of discrimination in the Supreme Court on this basis.

Considering this, it appears more likely at this stage that, should the matter proceed to litigation, the case will centre on the argument of whether Mr Folau’s Instagram post amounted to a breach of an essential term that allowed Rugby Australia to lawfully tear up his contract.

A new protection against religious discrimination

The Ruddock Review on Religious Freedom (Ruddock Review) last year recommended that a federal religious discrimination law be enacted by Parliament.

Prior to the 2019 Federal election, the Liberal National Coalition accepted 15 of the 20 recommendations made by the Ruddock Review and indicated support for the enactment of a federal Religious Discrimination Act, which would render discrimination on the basis of religion unlawful.

The Coalition also committed to the appointment of a Freedom of Religion Commissioner to the Australian Human Rights Commission, whose office would likely be involved in complaints made under this proposed new legislation.

Given the return of the Coalition to Government following the election result of this past weekend, it is likely that this proposed response to the Ruddock Review will soon return to Parliament in the form of a Bill.

Takeaway

Mr Folau’s dispute with Rugby Australia serves as an example of the impact that the absence of religious discrimination protections currently have on discrimination disputes involving religion under Australian law.

Despite this, it appears likely that the law on religious discrimination is unlikely to stand still for long, particularly given the Liberal National Coalition’s political appetite for law reform in this area in the wake of the Ruddock Review.

Contributors

Ethan Aitchison Law Graduate