Legal hurdles on both sides: the Folau 'free speech' case explained

The Israel Folau matter is unlikely to be settled quickly or easily, this weekend’s code-of-conduct hearing being only the first in a range of potential legal avenues open to Rugby Australia and the Wallabies star.

Folau will challenge Rugby Australia’s decision to issue him with a "high-level" breach notice under the player code of conduct in response to his Instagram post that "hell awaits" homosexuals and others. Folau’s motivation for the post is said to be based on his religious beliefs.

A matter for God, contract law or freedom of speech? Israel Folau will state his case this weekend. Credit: AAP

Aside from the perfect storm of conflicting religious, corporate sponsorship and social issues, the matter also raises complex legal questions.

If the Rugby Australia panel finds against Folau, he will likely attempt to assert – via separate court proceedings – that the termination of his contract is unlawful, and, perhaps, that it amounts to discrimination on the basis of religious belief.

The panel will deal only with whether Folau has breached the code, which has specific provisions covering how players are expected to behave on and off the field, and expressly prohibits the use of social media "as a means to breach" any of these expectations.

It also refers to Rugby Australia's inclusion policy, which states that discrimination or harassment of any kind "has no place in Rugby’.

Ironically, while the policy’s clear focus is homophobia, it also refers – unsurprisingly – to religious discrimination.

The code is largely about protecting the reputation and credibility of the clubs, the rugby association and the game itself. It states: "Do not otherwise act in a way that may adversely affect or reflect on, or bring you, your team, club, Rugby Body or Rugby into disrepute or discredit. If you commit a criminal offence, this is likely to adversely reflect on you and your team, club, Rugby Body and Rugby."

However, aside from the example of criminal offences, the code does not specifically state what types of conduct will likely bring the game into "disrepute or discredit".

Of course, in the present case, there has been a serious backlash against Folau, suggesting he may be in breach of these provisions.

Facing off this weekend ... Rugby Australia CEO Raelene Castle and Israel Folau.Credit: AAP

The code suggests that the panel will consider breaches as either a high, mid or low-level. It does not spell out exactly what kind of breach falls into each category.

It does, however, give criteria to be considered in determining this. These include the degree to which the conduct causes "reputational damage" and the degree it would "more than likely breach [Rugby Australia’s] core values".

Similarly, if the panel finds a breach, several criteria determine how serious the penalty is, including "any … aggravating and/or mitigating factors".

While the application of these criteria will be for the panel to decide, Folau may try to argue that his religious beliefs are a mitigating factor.

But even if the panel decides his sacking is warranted under the code, Folau may bring a claim in the courts arguing Rugby Australia had no right to terminate his contract.

One issue will be whether the code is incorporated into his contractual obligations. The Daily Telegraph has reported that Folau refused to have a social media clause inserted into his contract. This will not matter if the code of conduct is picked up by his contract.

If it is not, Rugby Australia would still be able to establish that this can be implied – by showing, for example, that he was given clear notice of the policy. It has also said it "formally and repeatedly" warned him about compliance.

If Folau is found to have been in breach of his contract, the next issue will be whether the breach is sufficiently serious to justify termination.

But if a court finds Folau’s sacking is justified under the contract, the question remains as to whether it may amount to discrimination on religious grounds.

As has been noted elsewhere, he may challenge on this basis by lodging a complaint under anti-discrimination or human rights legislation, where it would be argued before a federal or state tribunal. Or, he might pursue a similar claim under the Fair Work Act.

Rugby Australia chief executive Raelene Castle has been careful to state that any disciplinary action taken against Folau would be an employment decision based on a breach of policy.

"At its core, this is an issue of the responsibilities that an employee owes to their employer and the commitments they make … to abide by their employer's policies … and adhere to their employer's values," Rugby Australia said.

Finally, there might be other grounds on which Folau could be in trouble for his comments. For example, the NSW Anti-Discrimination Act provides that: "It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group."

However, whether Folau has breached this would be a question for the NSW Civil and Administrative Tribunal, after a referral. Rugby Australia would not be able to determine this.

While we do have a "freedom of political communication" in Australia, this is not the same as a right to free speech, as in some other countries.

The freedom of communication applies to stop governments from passing laws that would restrict the ability of Australians to discuss political issues. It does not stop private bodies, such as Rugby Australia, from sacking people for comments they have made.

Giuseppe Carabetta is a senior lecturer in employment law at the University of Sydney Business School.