Professional rugby union player and devout Christian Israel Folau has made headlines in Australia and all over the world recently, after he was dismissed by Rugby Australia for posting homophobic tweets from his personal account.
Folau is taking his former employers to the Fair Work Commission, with his lawyers arguing that under Section 772 of the Fair Work Act, it is unlawful to terminate employment on the basis on religion. Rugby Australia maintains that his sacking is in line with a high-level breach of the Professional Players’ Code of Conduct, which strictly prohibits anti-gay social media posts.
This controversial case has highlighted the conflict between freedom of religion and freedom of speech in Australia, and points to some systemic flaws in Australia’s constitution to protect fundamental human rights. Article 18 of the International Covenant on Civil and Political Rights entitles an “inalienable freedom to manifest religion or belief, and may only be limited by laws which are deemed necessary to protect public safety, order, health, morals or the fundamental rights or freedoms of others.” Additionally, Article 20 (2) of the same covenant states that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence must be prohibited by law.” Therefore, the right to religious expression should not be absolute and should depend upon respect for the freedoms of others; except for the fatal flaw in the absence of a sexuality clause.
Australia is the sole democracy in the western world who has not enshrined any form of federal charter of human rights- freedoms enjoyed by citizens are those dictated by the constitution, as well as federal and state legislation. The right to religious expression is detailed in section 116 of the Constitution- this prohibits the Commonwealth from making any law which prohibits the free exercise of any religion, reports the Guardian. Various states have also enshrined this religious freedom into a Charter of Rights on a regional level, but again with no engrained right to free speech. There is legislation in existence which prohibits racial abuse, which exists due to the 1975 Racial Discrimination Act. Section 18C states that “a person may not offend, insult, humiliate or intimidate another person in public because of their race, colour or national or ethnic origin,” however this does not protect against homophobic speech. So in accordance to the law- Folau was well within his right to express his religious beliefs, despite their assault on members of the queer community.
This poses a variety of issues- firstly, why has Australia not enshrined protections against homophobia? Secondly, why has Australia not cemented freedom of speech in a charter of rights? No matter your opinion on Folau’s religious beliefs, international convention states that he should be free to express them on his personal social media without fear of losing his job.
The Israel Folau case is just one of many recently which have pointed to holes in free speech laws. The recent raids on ABC offices and the home of a News Corp journalist goes to show just how censored Australia really is. On a larger scale, the incrimination of people like Julian Assange, Edward Snowden and Chelsea Manning for their involvement with the WikiLeaks cases is another encroachment on the rights of journalists to disseminate information, and on the rights of whistleblowers to expose the truth- issues which stem from a blurry definition of free speech. The Folau cases also points at the lack of protection of homosexual people in the eyes of the law, and above all, highlights the pressing need for Australia to enshrine human rights in a bill or charter, before it ends up in another mess like this.