Faith, freedom and the Folau factor

His sacking has supercharged the religious protection push but his legal fight may cloud the issue.

Israel Folau’s sacking has supercharged the push for religious protection, but his case has limited application.

Supercharged by the sacking of ­Israel Folau, the question of the protections to be given to religious freedom captivated the nation during the recent election. The issue is not going away, with Folau’s filing of proceedings in the Fair Work Commission this week anticipating a lengthy, media-­intoxicating court battle.

Well before the Folau furore, in response to a recommendation of the Ruddock review, the Morrison government committed to legislating a commonwealth religious discrimination act. The coincidence of that commitment with Folau v Rugby Australia will ensure that religious freedom will be a defining feature of the coming parliamentary term.

Even though Bill Shorten declared he was “uneasy” about Folau’s sacking, many leading Labor figures have accepted that the party’s treatment of religious freedom affected the election result. Chris Bowen has acknowledged that “people of faith no longer feel that progressive politics cares about them” and has urged Labor “to tackle this urgently”. Anthony Albanese now concedes that the ALP needs to reconnect with people of faith. Just how willing Labor is to support the religious freedom protections over which the government now has a mandate remains a critical test for whether the party can win back the support of religious believers.

However, despite all the heat and light, there has been little considered mapping of the precise legislative terrain over which our parliamentary representatives will now be traversing. Much will turn on the scope and content of these protections, and there are several options available, each of differing force and reach.

One option, which Mark Latham and Concetta Fierravanti-Wells have proposed, is a religious freedom act. While this has been mooted from a sense that an RDA is insufficient, the debate has largely proceeded in the absence of detail as to what the content of such an act would be, and the features that would distinguish it from the government’s commitment to an RDA.

If we look to similar models from other jurisdictions, an RFA could provide that existing laws have no effect if, on application, they are inconsistent with the act. To do this, an RFA could draw on the model of protection adopted in the US Religious Freedom Restoration Act, or that enshrined in the International Covenant on Civil and Political Rights, which Australia has ratified. Proponents argue the need for such an act follows from the recent conclusion of a parliamentary inquiry that “the ‘free exercise of religion’ under section 116 (of the Australian Constitution) has been interpreted narrowly by the High Court”.

Turning to the government’s actual commitment to an RDA, it surprises many to hear that, for the purposes of commonwealth law, only employees are protected against religious discrimination. This means that while Folau can file a claim under the Fair Work Act, consumers, businesses, students, professionals, patients and contractors can all be treated detrimentally on the basis of their ­religious commitments without consequence.

The Ruddock review was established during the same-sex marriage debate to inquire into the necessity of religious protections. It has been claimed that it found no evidence of a pressing threat to religious freedom in Australia. Read closely, its findings are not so simplistic. The panel cited examples of detriment that were so numerous as to enable it to identify “common themes”, including:

• Complaints of intolerance, bullying and coercion as a result of expressing religious beliefs in the workplace, at school or in public.

• Instances where people of faith experienced adverse consequences as a result of expressing views in favour of same-sex marriage or as a result of their sexual orientation or gender identity.

• Concerns from people of faith that they need to suppress their ­religious identities or views for fear of ostracism or reprisal.

• Instances of venues cancelling, or refusing to provide, bookings for religious institutions that wish to promote a traditional view of marriage.

Whether such detriments are to continue to be legally permitted is the concern that now falls for the consideration by our parliamentary representatives.

Although the government has not specifically indicated that the RDA would protect Folau, given the attention it has garnered, his matter provides an interesting case study into how such protections could be applied in operation.

First, pivotal to Folau’s claim is the fact that private parties cannot contract out of commonwealth anti-discrimination law, whether in the form of restrictive codes of conduct or otherwise. Although this is uncontested, the remaining questions raised in the Folau ­matter are unprecedented in Australian law.

They arise from a conflation of events — novel laws that impose restrictions on speech, and the advent of social media, where propositions may be made outside of the textured context of real human relationships. Whether or not one supports the manner in which Folau expressed his views, as Anglican bishop Michael Stead told The Australian: “If a rugby player can be sacked for doing nothing more than posting on his social media page what is essentially a summary of the Bible, then it’s a signal to the rest of us that we better keep our mouths shut.” It is important to note, however, that at one level Folau’s matter has limited application. Rugby Australia will succeed against Folau’s claim for religious discrimination under the existing protections to employees in the Fair Work Act if it can convince a court that the restrictions it has placed on Folau’s free speech and religious exercise are “inherent requirements” of the specific role he has taken on. At this level, Folau’s matter then turns on what is required of an elite rugby player. It will not tell us anything about the limitations that may be placed on a contract cleaner, or a gardener, or an office employee.

However, subject to a fight over the technical terms of his contract, the second ground on which Rugby Australia’s defence could succeed is if it can show that Folau actually engaged in vilification at law. In that respect, Folau’s matter has wide-ranging ramifications.

There is no Australian law that provides guidance on these specific points. A similar matter involving social media and religious expression arose in Britain in 2012. There, an employee who questioned on his Facebook page whether churches should be compelled to perform same-sex weddings was demoted and lost 40 per cent of his pay, all pursuant to a code of conduct. The High Court of Justice in England concluded that the code of conduct could not be used to restrict the employee’s free speech when it held: “The frank but lawful expression of religious or political views may frequently cause a degree of upset, and even offence, to those with deeply held contrary views, even where none is intended by the speaker. This is a necessary price to be paid for freedom of speech.”

At a more fundamental level, the Folau matter provides a fascinating insight into the growing expanse, also unmasked by the election result, between progressive elites and Scott Morrison’s heralded “quiet Australians”. To pose this distinction in David Goodhart’s terminology: the divide between the “Anywheres” — the urbane, university-educated, socially liberal, globalised elites — and the “Somewheres”, socially conservative people grounded in commitments to a specific community, family, faith or tradition.

Much like the trade union bosses who last week publicly defended Folau, whether they share his views or not, many rugby enthusiasts are unsettled about the fact that in modern Australia a high-profile rugby player could be sacked for expressing what are traditional Christian beliefs.

In Folau v Rugby Australia we are provided with a dramatic representation of these tensions — the “Somewheres” in the form of the rugby consumers (and many players) and a rugby organisation captured by the elite “Anywheres”.

Patrick Deneen has argued that in this dynamic we see an ancient, but perpetual, societal phenomenon identified by Aristotle — the contest between the ­oligarchs (the privileged few) and the populi (the great unwashed).

In a world before social media, Aristotle’s remedy for the tensions created by this inevitable distinction was a literal “middle class” whose presence would ameliorate tensions by creating the prospect of a real, tangible relationship, and thus greater understanding, between the two groups.

This sense that relationship leads to understanding drives the call for re-­engagement that Albanese now says is the task of the Labor Party. By comparison, the coalescence of social media with vilification law threatens the prospect of genuine dialogue — if a view cannot be ­uttered, it cannot be understood, and equally, it cannot be challenged. People are driven into enclaves of quiet dissent. As the election showed, the “quiet Australians” may not reveal their concerns to pollsters, or find a voice in the progressive media bubble, but they do speak at the ballot box.

One irony in this discussion is that it is religion that so often demonstrates an innate capacity to cut through social, educational, cultural and economic divides. There are few Australian institutions that habitually bring the Somewheres together with the Anywheres in the way that is characteristic of religious institutions. In Australian churches in particular, the Anywheres and the Somewheres meet regularly in the central authorising bodies, the synods, the convocations, the assemblies of the respective denominations. Augustine argued that, in their diversity, these institutions offered to the earthly republic a glimpse (however dim or flawed) of a true republic, bound together by common objects of love.

The Morrison government’s proposal of an RDA asserts that it is an injustice that commonwealth law currently permits Australians to be treated differently on the basis of their religion. It recognises that in multicultural Australia all faiths and none are equal in the eyes of the law. As the Ruddock panel recognised, “religious freedom is precious … it needs to be actively preserved”.

It is my hope that in the coming debate this recognition provides a touchstone around which religious communities and human rights advocates may communicate meaningfully, and a standard by which legislators may weigh any proposed ­protections.

Mark Fowler is a practising lawyer and an adjunct professor at the University of Notre Dame school of law in Sydney.