The Israel Folau Saga Continues

, The Israel Folau Saga Continues

The Israel Folau Saga Continues

BACKGROUND

Since our last blog discussing the issues with the homophobic and otherwise discriminatory remarks posted on social media by former rugby star Israel Folau, Folau has lost his $5 million contract with Rugby Australia and has initiated proceedings against Rugby Australia and The Waratahs for unfair dismissal, seeking $10 million in damages. His four-year contract was terminated after being found guilty of a “high-level breach” of Rugby Australia’s code of conduct for posting on social media that hell awaits homosexuals and other groups.

LATEST SCANDAL

Folau has faced backlash for setting up a GoFundMe account, seeking $3 million in crowdfunding donations to pay for his legal costs. This fundraising page has since been shutdown by GoFundMe, with $750,000 in donations being returned. Nicola Britton, Australia’s regional manager for GoFundMe, stated the platform is “absolutely committed to the fight for equality for LGBTIQ people” and that Folau’s campaign had breached their terms of service. She further stated “while we welcome GoFundMes engaging in diverse civil debate, we do not tolerate the promotion of discrimination or exclusion”. This has sparked political debate in the media about whether there is a “threat to religious freedom” in Australia. This idea seems to create tensions rather than bring any useful conversation about the subject: we have the right to practice religion enshrined in our Constitution. What we do not have in our Constitution, is the express freedom of speech. By outlining the hierarchy of our fundamental rights and freedoms, one can see that the freedom of religion must be balanced against our anti-discrimination laws. Any freedom of expression gets placed underneath these on the hierarchy because it is only an implied right. When you place this hierarchy into the facts of the matter now, one can see that people in the LGBTIQ community have the right to not be discriminated against, over any right that Folau may have to express homophobic views online, even if he states they were based on religious views, because the freedom of speech comes second to the right against discrimination.

For more discussion on freedom of speech, check out our post here.

THE PROCEEDINGS

The issue in the proceedings will be whether Folau was unfairly dismissed and if he was discriminated against based on religion. Ultimately, this case should resolve whether Folau breached his contract and identify more carefully, the kind of control an employer can have over an employee.

NEW FUNDRAISER BY ACL

On Tuesday, charity ‘The Australian Christian Lobby’ (ACL) set up a fundraiser for Folau’s legal costs following the shutdown of the GoFundMe page. It has just today been paused since it reached $2.2 million in donations this morning from over 20,000 people. Folau has made the following statements in relation to the second fundraiser that was set up: “I am humbled by the support I have received from so many of you since Rugby Australia terminated my employment contract after I shared a religious message on social media” and “to those who have criticised me, I bear no ill will towards you. You have every right to express your own beliefs and opinions.”

The move by the ACL has brought new questions to the ongoing saga that is Folau’s legal battle. The ACL is a registered charity with the Australian Charities and Not-for-profit Commission (ACNC) and is subject to its reporting and governance rules. If raising funds to support Folau’s legal action falls outside of the ACL’s charitable purpose, it could risk losing its status as a registered charity, which would be a big blow as that status comes with many benefits. The managing director of the ACL, Martyn Iles, denies the fundraising for Folau campaign is in breach of its charitable purpose, saying this includes: “the advancement of the Christian religion and advocating for changes in law and public policy. It’s clear that Folau’s case is a matter of both religious freedom and legal advocacy.”

The ACNC was established in December 2012 and has three objectives:
  1. Maintain, protect and enhance public trust and confidence in the sector through increased accountability and transparency;
  2. Support and sustain a robust, vibrant, independent and innovative not-for-profit sector;
  3. Promote the reduction of unnecessary regulatory obligations on the sector.

Charities do not have to register with the ACNC but there are powerful incentives for them to do so. For example, income tax exemptions are only available for charities registered with the ACNC. Registration also confers a certain element of legitimacy on a charity and increases public confidence in its work.

In order to register with the ACNC, an entity must be not-for-profit and have a charitable purpose in the public benefit, such as advancing health, education, religion or culture. Once registered with the ACNC, charities must report annually on their activities and provide information about their finances. If a member of the public is concerned about a charity, they can lodge a complaint and the ACNC will investigate. The ACNC monitors the activities of charities to prevent misuse of the benefits available to them for uncharitable purposes. The ACNC investigates accusations that a charity has used funds or assets “for the private benefit of its members, or these have been stolen”. However, the ACNC cannot investigate complaints related to fundraising itself.

IS ACL BREACHING THIS?

The ACL’s main activities are focused on religion, education, research and advocacy, and civic work. It aims to “advance Christianity by seeing Christian principles and ethics influencing the way Australia is governed, does business and relates as a community.” Its decision to raise funds for Folau’s pending lawsuit raises concerns about the role of charities in assisting individuals to take legal action to protect their rights and freedoms.

THE AFFECT OF FOLAU’S PROCEEDINGS

The results of the pending case will surely shed some light on the priorities between differing rights, namely, freedom of religion, freedom of speech, and the extent to which an employer can control the actions of an employee. Already, debate has been sparked on the LGBTI+ rights and the laws against discrimination.

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