Rugby Australia might be too clever by half. By asking the Federal Circuit Court to rule on the “tone” of Israel Folau’s statements on social media, the sporting body has borrowed an argument that worked a treat when it was used against journalist Andrew Bolt.
Rugby Australia is attempting to justify Folau’s dismissal on the ground that he used the wrong tone while proselytising and caused offence. Give me a break.
In saner times, this would be laughed out of court.
But keep in mind that the Federal Court banned several articles by Bolt, a columnist for News Corp Australia, publisher of The Australian, in 2011 after judge Mordy Bromberg repeatedly expressed unhappiness about their tone.
The era of the judge as editor-in-chief has arrived, aided and abetted by the jurisprudence of offence — which underpins both cases.
The right not to be offended — which does not exist in international law — has already trumped the internationally recognised right to free speech.
It now threatens to trump the internationally recognised right to religious freedom.
MORE: Folau offered public apology | Janet Albrechtsen — ‘How can a wrong tone end a career?
Rugby Australia has invoked the jurisprudence of offence in its response to Folau’s claim when it says: “The tone and attributes of both posts were disrespectful to those in the LGBTIQ+ community.”
But the organisation’s own frank assessment means any victory on this basis is certain to increase demands to strengthen religious freedom.
Rugby Australia has filed a document in the Federal Circuit Court making it clear it believes the common law does not prevent employers from requiring employees to sign away their freedom to manifest their religion.
“Mr Folau’s principal argument appears to be that there is a general principle at common law prohibiting the making of a contract which restricts a person from manifesting their religion or belief or from imparting or sharing religious information and ideas,” the document says.
“Such a principle, if accepted, would constitute a radical extension of the common law and would cut against fundamental principles of freedom of contract.”
If Rugby Australia wins, employers will be free to manifest their own beliefs by restricting the conflicting beliefs of employees.
On matters of religion, those who want to work would be forced to accept that the boss is like the Pope — infallible.
If the courts fall for this, Scott Morrison will face renewed pressure to strengthen his religious discrimination bill and it will all be due to Rugby Australia’s refusal to accommodate diversity of belief.
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