What is happening with Israel Folau? Part 1

You may notice that this article surrounds the topic of employment law. Many of you will know that I practice exclusively in criminal law. Plus, my regular articles are always on the topic of criminal law.

However, I’ve been asked so frequently about a recent non-criminal law issue that I’ve decided to write this month’s article about it. Traditionally, employment law isn’t very exciting. Although, this particular issue is so intriguing that people across the entire globe are carefully following it.

Who is Israel Folau?

Israel Folau is one of the most talented and exciting athletes Australia has ever produced. He’s currently 30 years old and first became popular across Australia through playing the sport of Rugby League. In this capacity, he went on to be regarded as one of the best players that sport had ever seen.

In 2013, he switched over to play Rugby Union. Once again he achieved widespread acclaim arising from his undisputed prowess. As of 2019, he was one of the highest-paid players in Australia, earning between $1 million and $2 million per year in fees and sponsorships. Simply put, he is a superstar in the Australian sporting industry and still has plenty of years ahead of him.

What did he do that was so controversial?

Folau grew up as a Mormon and his father is a pastor. He is a deeply religious person of the Christian faith and has credited his relationship with God as a reason for his athletic success. However, it is his public expression of his strong religious views that have attracted so much criticism. They have led to the dilemma that Folau is currently facing.

In 2017, the Turnbull government called a national postal survey on the question of changing Australian law to recognise same-sex marriage. Come September that same year, the Australian Rugby Union (ARU – the managing body of the sport of Rugby Union in Australia) declared the Wallabies (the Australian national team) in support of the change.

Responding to this, Folau announced his personal opposition a day later on Twitter. He wrote: “I love and respect all people for who they are and their opinions. But personally, I will not support gay marriage.” This prompted outrage from many, including those of course from the homosexual community. It also presented an issue for his work, his celebrity and, of course, in relation to employment law.

Folau’s religious views again became a subject of controversy in April 2018, when a follower of his Instagram account asked him what God’s “plan for homosexuals” was. He replied: “Hell.. unless they repent of their sins and turn to God.” This led to accusations that Folau was homophobic and religiously discriminatory against members of the gay community.

Condemnation of Folau’s comments

The Wallabies chief sponsor, QANTAS, condemned Folau’s comments. The organisation said that “We’ve made it clear to Rugby Australia that we find Folau’s comments very disappointing”. What is interesting is that the CEO of QANTAS Alan Joyce is a homosexual, and I’ll discuss the relevance of this more in the next article.

In response to Folau’s comments the CEO of the ARU, Raelene Castle, said that while they did not agree with Folau’s views he would not be sanctioned. While there was no action taken against Folau at the time, he was made aware that similar behaviour in future might lead to a different response.

That seemed to be the end of the saga until it reignited and completely blew up in April 2019. On 10 April 2019, in another Instagram post, Folau posted a screenshot of an image. It listed various groups, including “homosexuals, adulterers, liars, fornicators, thieves”, bearing the words, “WARNING: HELL AWAITS YOU. REPENT. ONLY JESUS SAVES”. The ARU immediately denounced the post as homophobic and the following day announced their intention to terminate Folau’s contract, as directly related to tenets of employment law.

Some division of opinion

Folau’s post and the actions of the ARU divided opinion amongst players and supporters. It ignited a human rights debate across Australia, with the ARU arguing its “inclusiveness” policy had been breached, and others calling for tolerance of the expression of religious views. I’ll go more in-depth about competing views in my next article.

Events unfolding

In May 2019, Folau was found guilty of breaching the ARU’s code of conduct. Also, later that month he lost a sponsorship deal with Asics (a large sporting goods and clothing company). On 17 May 2019, he was sacked by the ARU, ending his career in rugby union.

In June 2019, Folau commenced legal action against the ARU, claiming that he had been unfairly dismissed. Folau is seeking $10 million in lost earnings and damages. He is arguing that that is the amount that he will lose as a result of the ARU wrongly terminating his contract.

Where to now

The success or failure of Israel Folau’s claim against the ARU rests on one central, unresolved legal question. That is, just how far does somebody’s right to religious expression extend? This is a very intriguing and largely untested question that will not be easy for the courts to answer.

It is also likely to be one of the most fascinating court battles in the sphere of employment law that have ever been fought in Australia. Because it is such an interesting issue that media outlets across the world are watching with great enthusiasm. In my next article, I will analyse the arguments of both sides. This will include what the ARU is arguing and what Folau is arguing. I’m sure that it’ll lead to a lot of thought and debate amongst my readers.

Need help interpreting the law, understanding your rights or need more direct assistance? Contact us today to inquire in regard to legal counsel and representation. Cridland & Hua – Your Brisbane Criminal Defence Lawyers.


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