Those who follow public matters in Australia will remember the controversy in 2019 surrounding controversial comments made by celebrity rugby player Israel Folau. See here and here for my discussion of the legal issues around Mr Folau’s claim that he had been dismissed partly on account of his religious beliefs. That claim was later settled before proceeding to trial, in December 2019 .
In an interesting sequel, Mr Folau was then sued by Mr Gary Burns for “homosexual vilification” under the NSW Anti-Discrimination Act 1977. Mr Burns’ claim was rejected by the President of the Anti-Discrimination Board in April this year. Now his appeal against this decision to the NSW Civil and Administrative Tribunal has been dismissed, and the claim will go no further- see Burns v Folau  NSWCATAD 287 (18 November 2020).
The Commonwealth Government has released a second version of its draft legislation dealing with religious discrimination issues, for further comment before it is formally introduced into the Federal Parliament in the New Year. There are a number of important changes from the previous drafts which in my view make it a much better package of amendments. But there are areas for improvement.
I presented a paper at a continuing legal education seminar entitled “Freedom of Religion vs Freedom of Expression: Critical Legal Issues”. A copy can be downloaded here. And yes, it mentions issues raised by the case of Mr Israel Folau!
The following is my personal submission on the Government’s package of draft laws on Religious Freedom. The draft laws are available here, and submissions are still open, for those interested, until 5 pm Wednesday 2 October. My previous summary of the legislation can be found here.
The Commonwealth Attorney-General has released Exposure Drafts of a package of Federal Bills designed to improve religious freedom protections under Australian law, along with associated explanatory information. The legislation responds to the recommendations of the Ruddock Panel into Religious Freedom, released late in 2018. Public comment has been invited by 2 October, 2019.
The main item is the Religious Discrimination Bill 2019 (“RDB”), which broadly replicates the existing pattern of anti-discrimination laws enacted by the Commonwealth, but picking up for the first time at the Federal level the “protected characteristics” of “religious belief or activity”. Two ancillary Bills propose consequential amendments to other legislation, add some specific matters to be taken into account in objects clauses for other discrimination laws, and slightly amend or clarify the laws on charities and marriage.
The RDB is a lengthy document (68 clauses over 52 pages), with some complexities that will need to be unpacked. But I would like to offer a brief overview and an initial response, which will be followed up later by more detailed comments about particular issues. I can say, however, that it looks like being a worthwhile and helpful change which in general will further the cause of religious freedom (for both believers and non-believers) in Australia.
An important decision of the England and Wales Court of Appeal, The Queen (on the application of Ngole) -v- The University of Sheffield EWCA Civ 1127 (3 July 2019)has ruled that a social work student, Felix Ngole, should not have been dismissed from his course on the basis of comments he made on social media sharing the Bible’s view on homosexuality. The court says in its summary at para , point (10):
The mere expression of views on theological grounds (e.g. that ‘homosexuality is a sin’) does not necessarily connote that the person expressing such views will discriminate on such grounds.
The decision is a welcome one, which will hopefully provide guidance in similar situations.
In a previous post I commented on the events surrounding celebrity rugby player Israel Folau’s posting on social media of a meme stating that various groups of sinners, including “homosexuals”, were destined for hell unless they repented and put their trust in Jesus Christ. He was immediately threatened with dismissal by his employer, Rugby Australia (“RA”), a threat subsequently implemented through an internal tribunal finding that he was guilty of a high level breach of the RA “code of conduct”.
It seems an appropriate point to comment on recent developments and to clarify what it seems Mr Folau’s legal options are.
Celebrity rugby player Israel Folau is in a complicated legal position. He shared a “meme” on social media site Instagram recently, the text of which was: “Warning: Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolators: Hell Awaits You- Repent! Only Jesus Saves.” To this he added his own personal comment: “Those that are living in Sin will end up in Hell unless you repent. Jesus Christ loves you and is giving you time to turn away from your sin and come to him.” (The comment was similar to many other pictures shared on his account, many of which are Bible verses or exhortations to nominal Christians to follow Jesus Christ in deed as well as word.)