News, Culture & Society

How Australia’s rejection of a religious freedom referendum in 1988 could doom Israel Folau in court

Israel Folau’s chances of winning a court battle to keep his job were possibly doomed seven months before the sacked Wallabies star was born.

In September 1988, less than 31 per cent of Australians voted in favour of a referendum question to strengthen religious freedom in the Constitution.

A Labor government led by Bob Hawke, the agnostic son of a church minister, asked the people if the states and territories should be stopped from banning ‘the free exercise of any religion’. 

 

Israel Folau’s chances of winning a court battle to keep his job were possibly doomed just seven months before the sacked Wallabies star was born (he is pictured right with wife Maria)

University of Sydney constitutional law expert Anne Twomey said the result three decades ago showed Australians were sceptical about changing the Constitution.

‘It is just an indication that the Australian people have been pretty wary about expanding the very limited rights we have in the Constitution,’ she told Daily Mail Australia on Friday.

Section 116 of the Constitution already bans the federal government from ‘imposing any religious observance, or for prohibiting the free exercise of any religion’.

It also says there shall be ‘no religious test’ to hold a Commonwealth position.

The Constitution, however, doesn’t cover private sector employment.

Professor George Williams, the dean of law at the University of New South Wales, said a Bill of Rights was needed to protect the likes of Folau from being sacked over their religious beliefs.

In September 1988, less than 31 per cent of Australians voted in favour of a referendum question to strengthen religious freedom in the Constitution. Bob Hawke (pictured right with wife Hazel and treasurer Paul Keating) asked the people if the states and territories should be stopped from banning 'the free exercise of any religion'

In September 1988, less than 31 per cent of Australians voted in favour of a referendum question to strengthen religious freedom in the Constitution. Bob Hawke (pictured right with wife Hazel and treasurer Paul Keating) asked the people if the states and territories should be stopped from banning ‘the free exercise of any religion’

‘Yes that is right, and indeed there are gaping holes as a result in the protection of many human rights in Australia,’ he told Daily Mail Australia.

‘In fact, Australia is now the only democratic nation in the world without a national Bill of Rights of some kind.’

Professor George Williams said a Bill of Rights was needed to protect religious freedom

Professor George Williams said a Bill of Rights was needed to protect religious freedom

Professor Williams said a Bill of Rights, to protect religious expression in the workplace, would need to be accompanied by specific laws targeting commercial employers.

‘It all depends on how it was drafted, and it would require the instrument to extend beyond government to the private sector,’ he said.

‘Many do not, and in that case you would also need separate legislation targeted at the private sector protective of religious freedom.’

While the rejection of the Constitutional Alteration (Rights and Freedoms) Act at a referendum 31 years ago is now a distant memory, the issue or religious freedom is still topical.

Folau and Rugby Australia appeared both a Fair Work Commission hearing on Friday.

Folau and Rugby Australia appeared both a Fair Work Commission hearing on Friday

Folau and Rugby Australia appeared both a Fair Work Commission hearing on Friday

They failed to reach a compromise, which means the case will now go before the Federal Court.

Rugby Australia sacked Folau last month from this $4million, four-year contract after he tweeted that ‘drunks, homosexuals, fornicators, adulterers, liars, fornicators, thieves, atheists and idolaters’ needed to repent for their sins or they would go to Hell.

The organisation’s chief executive Raelene Castle argued the message preached the sporting code’s drive to be more inclusive towards gays. 

Professor Anne Twomey said the Constitution wouldn't protect Israel Folau's job

Professor Anne Twomey said the Constitution wouldn’t protect Israel Folau’s job

Folau’s social media message, paraphrasing of a Biblical verse from Corinthians, in the New Testament, could potentially end up in the High Court, which decides constitutional matters.

However, Professor Twomey said Section 116 of the Constitution would be unlikely to help Folau challenge Rugby Australia’s decision to sack him.

‘It does not limit state laws or the common law or affect contracts that people may enter into,’ she said.

‘Nor does it give individuals personal rights regarding freedom of religion.’ 

Employment lawyer Josh Borstein, from class action litigator Maurice Blackburn, said Folau’s only hope was proving his employment contract breached existing anti-discrimination laws.

‘We see occasionally a case like we’re seeing with Israel Folau where an employee is relying on anti-discrimination law to say the contract has effectively been used to breach anti-discrimination provisions,’ he told Daily Mail Australia this week. 

Rugby Australia sacked Folau last month from this $4million, four-year contract after he tweeted that 'drunks, homosexuals, fornicators, adulterers, liars, fornicators, thieves, atheists and idolaters' needed to repent for their sins or they would go to Hell

Rugby Australia sacked Folau last month from this $4million, four-year contract after he tweeted that ‘drunks, homosexuals, fornicators, adulterers, liars, fornicators, thieves, atheists and idolaters’ needed to repent for their sins or they would go to Hell

Read more at DailyMail.co.uk


Comments are closed.