Australian Govt to introduce religious discrimination law in wake of Folau case

Originally published in The Christian Institute

Australian Prime Minister Scott Morrison says his Government is set to introduce new laws on religious liberty, following the case of Israel Folau.

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The sports star was fired by Rugby Australia in May for a social media post quoting the Bible which was deemed “homophobic”.

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At the G20 summit in Osaka, Japan, Morrison said the Government was “working very hard” on bringing forward a Religious Discrimination Act.

‘Cornerstone’
The Prime Minister, who attends a former Assemblies of God church in Sydney, said: “Religious freedom is one of the cornerstones of what we are as a country, and it’s important our laws reflect that”.

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“Now we’ve committed to put in place a Religious Discrimination Act, we’re going to do that. We’re working very hard on that right now.”

Israel Folau took his case to the Australia Fair Work Commission, saying that he was unfairly dismissed.

Religious Discrimination Act
Speaking about his case, Australia’s former Deputy Prime Minister Barnaby Joyce said he wants “laws to exempt religious beliefs from employment contracts”.

He stressed: “You can’t bring people’s faith beliefs into a contract. Your own views on who God is, where God is, or whether there’s a God should remain your own personal views and not part of any contractual obligation.”

According to the Sydney Morning Herald, Australia’s Attorney General is “expected” to introduce a Religious Discrimination Act to the Australian Parliament later this month.

Challenge
In April The Christian Institute wrote a letter challenging the Rugby Football Union (RFU) after English player Billy Vunipola was disciplined for expressing his Christian views.

Vunipola “liked” Folau’s social media message and also posted his view that sex should be reserved for opposite sex marriage.

Writing to the RFU, Institute Director Colin Hart said: “The belief that sex is only for marriage is a belief worthy of respect in a democratic society”.

He asked if the RFU could “confirm that it is willing to engage players who agree with this view about marriage”.

To date, the RFU have not responded to the Institute’s letter.

Meanwhile in an article in the Sydney Morning Herald, John Steenhof, writes that a decision on religious freedom handed down yesterday by Britain’s second-highest court will send chills down the collective spine of Rugby Australia. In contrast, Israel Folau and his team will be thanking God for divine providence that is akin to manna from heaven. In Ngole v the University of Sheffield, the English Court of Appeal has decided: “The mere expression of religious views about sin does not necessarily connote discrimination.”

Steenhof, who is managing director of Human Rights Law Alliance Limited, and independent sister organisation to the Australian Christian Lobby, writes on:

The factual similarities to Folau’s case are remarkable. Felix Ngole was a social work student at the University of Sheffield and a devout Christian. In 2014, he posted Bible verses about homosexuality on a public Facebook page as part of a political debate. Sheffield University accused Ngole of breaching a vague and broadly worded code of conduct.

Through a hearing and two committee appeals, various bureaucratic apparatchiks repeatedly incanted that quoting Bible verses constituted “views of a discriminatory nature” and breached professional guidelines.

As the British appeal court stated: “The university wrongly confused the expression of religious views with the notion of discrimination. 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.”This lines up almost exactly with Folau’s case. Throughout his four-year ordeal, Ngole advised that he would never compromise his Christian beliefs. Ultimately, Sheffield University expelled him. A judge in Britain’s High Court confirmed this decision.

However, the Court of Appeal disagreed and has found that the university discipline process was fundamentally flawed. The university took an entrenched position early on, adopted processes that lacked insight and imposed a sentence that lacked proportion.

This will be uncomfortable reading for Rugby Australia.

It’s not all bad news for the union. Decisions from Britain are not strictly binding on Australian courts, just instructive. Although difficult, the university might appeal to Britain’s Supreme Court.

There are also plenty of differences between the two cases for Rugby Australia’s crack legal team to agitate in an attempt to blunt its force of application to Folau. It’s what lawyers do best and Rugby Australia has good lawyers.

There are other notable implications from this British decision for the Folau case. Ngole’s case took four long years before he finally obtained his vindication. Many have criticised Folau for raising such a big war chest of legal fees. His fundraising efforts may be both prescient and proportionate given that he might face a similar long, hard and expensive legal battle.

The appeal court also took a distinctively different approach compared with the original judge. While the lower court judge gave a “full and meticulous” judgment that navigated a maze of dense common law principles and cases, the justices on appeal went to the heart of the matter.

This was about a failure of common sense. At the outset of the matter in 2014, the university had overreached and overreacted. It effectively purported to restrict Ngole from expressing his religious views in any public forum. The implication was that a professional should only express controversial religious views in absolute privacy.

The court rightly pointed out that, if correct, no Christian would be secure in any profession, let alone Muslims, Hindus or Buddhists. Further, Ngole’s expulsion was disproportionate, given that the posts were expressions of religious and moral views that were based on the Bible.

This decision may resonate with an Australian court considering the termination of Folau, given our antipodean commitment to the Australian “fair go” for everyone.

Rugby Australia chairman Cameron Clyne has already trapped Rugby Australia on the wrong side of the ruck with his injudicious media comments, and he has dragged sponsors with him.

It isn’t quite the end of the Ngole dispute. It’s being remitted for a hearing before a new “fitness to practice” panel before the University of Sheffield. The appeal court said it could not “finally determine whether the appellant would have resisted the possibility of tempering the expression of his views or would have refused to accept guidance which would resolve the problem. This requires new findings of fact. This case should, therefore, be remitted for a new hearing before a differently constituted FTP Panel.”

But the Ngole decision will sting like the opposition’s sprigs on the union’s back, adding to Folau’s pressure for an apology.

Folau and his team have reason to be buoyed by this decision. It is a season of miracles. Here is a timely success story of a devout Christian besting a censorious bureaucracy.