Folau case lies in questions that don’t have a legal answer

A cursory glance at the claim filed by Israel Folau in the Federal Circuit Court against Rugby Australia and the NSW Waratahs proves unexpectedly revealing. Whoever knew that Folau’s Christian name isn’t actually Israel, but Isileli?

Moreover, in the context of suggestions that Folau’s exact claims includes him seeking damages north of $10 million, his pleaded claim is admirably brief. Six numbered paragraphs of pleaded facts, set out on a single A4 page.

Israel Folau has taken Rugby Australia and the Waratahs to court for wrongful dismissal.Credit:Janie Barrett

In a way, perhaps it’s an indictment on the Australian legal system that Folau’s prayers for relief won’t end up before a judge, for another six months. Then again, a judge might not ever actually decide the case.

The proceedings could be resolved before the scheduled court date in February next year – either through mediation or otherwise. But you have to remember that Folau now has enough crowdfunded folding stuff at his disposal to pay the legal costs of each of the three litigants, including himself. In those circumstances, isn’t it kind of a ‘‘free hit’’ to run the case to its finality?

Folau's pleaded case is straightforward:

  • That he was employed by RA and the Waratahs pursuant to a fixed-term contract commencing on 1 January 2019, and ending on 30 November 2022
  • That he’s a devout Christian.
  • That he maintained social media accounts not to parlay his sporting fame for any commercial purpose, but instead to lawfully communicate religious content
  • That he maintained this channel of communication because of his faith, which itself forms the "very essence of his personhood".
  • That on or about 10 April 2019 Folau uploaded some "religious content" to his social media accounts, as per his "usual practice". THAT the act of Folau so using social media was a "manifestation of his religion". THAT his conduct in using social media on that day in question was "benign"; not justifying any" punitive action" being taken RA or the Waratahs.
  • That notwithstanding that it would be unjustifiably punitive to do so, RA and the Waratahs terminated Folau’s employment, and by doing so contravened s 772 of the Fair Work Act.
  • That in doing so, those organisations acted in a way which constitutes a breach of those organisations’ employment contract with Folau; relied on contractual terms which were unjust; and unreasonably restrained Folau’s professional rugby career.



It’s on that basis Folau seeks that he be reinstated to his former employment, compensation for lost earnings and other damages, an injunction preventing any repeat termination of his employment, and that his former employers pay a penalty of up to $63,000 (which Folau wants paid to him).

Now, section 772(1) of the FWA indeed says it’s unlawful for an employer to terminate an employee’s employment because of, or for reasons including, an employee’s religion. Which isn’t to be confused with saying that the termination was merely unfair. Rather, it’s unlawful; illegal even.

Those provisions didn’t become law in Australia just by accident. The FWA gives effect in Australia to International Labour Organisation Conventions 111 and 158, which were adopted in 1958 and 1982, and then ratified by Australia in 1973 and 1993. The ILO itself is an agency of the United Nations.

According to the ILO, such religious discrimination includes discrimination based on a person’s expression of their religious beliefs. Which makes sense, in that it would be farcical to protect someone from being discriminated against on the basis of religion, but then to insist that they must practice their faith in a soundproof place of worship.

Which gets us to this somewhat pertinent question: was Folau’s employment actually terminated by RA and the Waratahs for reasons including his religion, or not?

RA’s and the Waratahs’ core contention will inevitably be that it was not. Rather, they would say his employment ended because Folau committed a high-range breach of RA’s code of conduct for its players, the recommended sanction for which being termination.

It is debatable whether such an argument could hold water in circumstances where the very conduct determined to constitute a contravention of the code – Folau’s evangelising via Instagram – is Folau’s own summary of a passage from the Bible. Put simply, it’s a manufactured argument, to try to divorce the code of conduct breach from the issue of religion generally.

But that in itself raises another issue: for the purposes of the FWA and unlawful termination of employment, what exactly constitutes a ‘‘religion’’? That’s an important question, when you consider that it’d be obscene if anybody could purport to establish their own religion one day, and the next day say whatever they want with impunity, relying on an impervious ‘‘religious freedom’’ shield from adverse consequences.

For the last 20 years or so, tens of thousands of people in Australia have said on census forms that their religion is ‘‘Jedi’’. That doesn’t mean it’s actually a religion. Where’s the dividing line between a ‘‘religion’’ on the one hand, and a ‘‘cult’’ or ‘‘sect’’ on the other?

The Truth of Jesus Christ Church is headed by Folau’s father, Eni. Its modest congregation meets at Eni’s own house. Most of the worshippers are Folau’s relatives. According to some reports, worshippers are baptised in Eni’s backyard swimming pool.

The FWA doesn’t define what a ‘‘religion’’ is. Neither does Australia’s constitution.The High Court has, several times, grappled with the question of what does. In the Court’s judgment in the ‘‘Jehovah’s Witnesses Case’’ of 1943, the Chief Justice opined it would be ‘‘difficult, if not impossible’’ to devise a definition of religion.

Four decades later, the Court’s decision in the ‘‘Scientology Case’’ comprehensively analysed exactly what is meant by the term ‘‘religious institutions’’, from a taxation law perspective. The five justices who decided that case produced three different definitions as to exactly what qualifies as a ‘‘religion’’.

Folau will ultimately bear the burden of proving a number of matters. He must prove that The Truth of Jesus Christ Church indeed is a ‘‘religion’’ for the purpose of the FWA. The tests prescribed in the leading judgments of the High Court will be of paramount significance.

Second, Folau must next prove what the canons of conduct of his religion actually are.

Third, he must prove that the practising members of his religion congregate in the sincerely held, belief that people classified by that religion as liars, fornicators and drunks are destined for a seat beside Lucifer, lest they repent.

Then, Folau must prove that his notorious Instagram posts are a manifestation of sincerely held, common beliefs of his religion.

And then Folau must prove that his employment was terminated by RA and the Waratahs, for reasons including his religion.

It takes only minutes to review the facts pleaded by Israel Folau in his court filing. The agonising over the matters in dispute will take immeasurably longer.

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