Australian rugby player Israel Folau is “known to have made one of the most incredible transitions to rugby”. Through his talent and success he has become a well-known influential public figure, with over 310,000 followers on Instagram. He played for the New South Wales Waratahs in the Super Rugby. His career, however, may come to an end after being slapped with a high-level code of conduct breach following his latest controversial social media post. The posts of “unacceptable” homophobic and transphobic social media comments posted are being investigated by the sport’s governing body. Rugby Australia announced their intention to void Folau’s contract and remove him permanently from the Australian national team. Is it fair that his career as a very talented, professional rugby player will come to an end for posting his opinion on social media? Does being a public figure restrict people from making posts about their opinion, by extension, impinging on their religious freedoms?


An opinion is defined in the Oxford dictionary as:

A view or judgement formed about something, not necessarily based on fact or knowledge”.

Before delving into the issue of opinion and freedom of religion, let’s look at how opinion relates to evidence used in Court.

The Opinion Rule is expressed in section 76 of the Evidence Act 1995 (NSW):

(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

There are a list of exceptions to this rule, two of which are the opinion of lay people (section 78) which states: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

The other useful exception to note here is that of opinions based on specialised knowledge, in other words, ‘expert opinion’ under section 79:

(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

If we take these rules of evidence and apply it hypothetically and in an abstract manner to Folau’s controversial comments, we could use the lay person exception to make a finding that his comments were admissible as evidence only as far as his reading of the Bible passage goes to his perception of it. More on this below. If the Court found that this account was unnecessary or not based on what he saw, heard, or otherwise perceived, then it would be inadmissible to attempt to prove the existence of what he is citing.


Folau, who is a devout Christian who has made 73 appearances for the Wallabies, posted on Instagram this month that “hell awaits” homosexuals. The image posted by Folau on Instagram, which has not been deleted, listed “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters,” reading underneath, “Hell awaits you.” After attending a church service on the Sunday, Folau made a statement that he would not apologise for the post which was widely condemned by the rugby community. Folau, captioned the image: “Those that are living in Sin will end up in Hell unless you repent. Jesus Christ loves you and is giving you time to turn away from your sin and come to him.” He also included several Bible verses in the caption. He says “I’ll stand on what the Bible says” and “I share it with love. I can see the other side of the coin where people’s reactions are the total opposite to how I’m sharing it.”

In a statement on its website, Rugby Australia wrote: “Rugby Australia is aware of a post made by Israel Folau on his Instagram account this afternoon. The content within the post is unacceptable. It does not represent the values of the sport and is disrespectful to the members of the Rugby community,” the statement continued. “The Rugby Australia Integrity Unit has been engaged on the matter tonight.”

His club Saracens issued a statement on Monday saying that he “made a serious error of judgment in publicly sharing his opinion, which is inconsistent with the values of the club and contravenes his contractual obligations. The player has been formally warned about his future conduct.”

Folau defended his hateful comments in a column for Players’ Voice, writing that accusations of homophobia “could not be further from the truth.” He was provided with a clear indication that his words were not appropriate nor were they welcome. It is argued that his opinions are objectively hateful and discriminatory. He continues to defend his beliefs and opinions. Rugby Australia Chief Executive Raelene Castle states that “we’ve had conversations with Izzy about presenting his views in a respectful way.” “He is walking the line, we will continue the dialogue.”


It is not unusual to see people posting their controversial opinions on social media, it has become a place where people believe that they have every right to be outspoken and share their opinions. The wider issue in this scenario is the fact that Falou is a public figure with access to millions of people who can read about or listen to his opinions. This should not be a limitation to what he posts. We appreciate that this post is unacceptable and offensive however we believe that a post made based on opinions and not facts should not result to a termination of his contract merely because he is a public figure with many followers on his social media accounts. We believe that everyone is entitled to their own opinions and should be able to express them whether a public figure or not. In saying that, we also appreciate that opinions and views should be presented in a polite and respectful manner. Falou has a lot of support in his favour and it is encouraged that rather than terminating his contract, he should be fined or suspended for his comments.


Further to this, the freedom of religion is expressly provided for in our Constitution under section 116 which states:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

As our technological and social media world continue to flourish and grow, the question of how to balance different rights may become more pressing. We have the freedom of religion as enshrined in our Constitution, anti-discrimination laws in place, but no express freedom of speech. A question of constitutional interpretation the High Court may have to answer for us very soon may be along the lines of ‘is our freedom to exercise religion, unlimited? Or, more concisely, can other freedoms such as the right to not be discriminated against, impede this religious freedom?’ Another very specific question which comes to mind is, ‘can we publish religious expressions, views, or opinions, that cause offence to minorities?’ Quite a controversial time we have ahead of us one might say.

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