The Folau versus Rugby AU showdown has become a fixation for every corner of our society. There are as many opinions as there are keyboards, however, at the core of the issue there is a fundamental misunderstanding of the situation.
The concept of ‘freedom of speech’ has been inevitably thrust into the standoff. Why should an individual have to forego their religious freedoms? It isn’t fair, we all have the right to free speech right?
Well, not quite. Australians do not have a constitutional right to freedom of speech. Section 116 of the Constitution states that the Government is prohibited from interfering with the free exercise of religion or imposing any religious requirement as a test for holding public office. So that’s not going to help here either.
So, what do we have then? According to the High Court, we have an implied freedom of political communication, essential in the proper operation of a system of democratic representative government.
It is not a private right for each citizen, but rather a limit on state and federal legislation should they attempt to infringe too heavily on this implied freedom.
So, do you have the right to ‘free speech’? Not really, and definitely not in the sense most people would think they do.
Where does this leave Izzy?
Israel is an employee of a company, just like anyone else. He just gets paid a little bit more. There has been so much discussion of ‘free speech’ in the workplace in light of recent events.
However, employees don’t have free speech. Not just RA employees; all employees. Speech in the workplace is effectively set out by the contractual obligations of the employee, whether these are explicitly stated or implied.
While, admittedly, it is a morally complex issue for many, it seems as if it the courts have not found it complex in recent times. We can look to the Full Federal Court in Chief of the Defence Force v Gaynor (2017) as a very relevant point of reference.
In this case, an officer of the Army Reserve published personal opinions on various social media platforms criticising homosexuality in the ADF. The Full Federal Court dismissed his case and re-stated that there is no expressly created right for individuals in relation to freedom of speech, particularly when it comes to an employment relationship. The High Court too rejected the case.
During my brief interlude into professional rugby, I was asked to remove photos from my social media of shooting rifles on a farm, smoking cigars at a wedding and drinking a beer with my friends, all taken well before I had been contracted. These images, which many would consider quite normal, were also not in line with the beliefs of my employer.
While it is very enticing to launch into discussions of rights, religious freedoms and discrimination, please remember how employment agreements work. Israel is being paid to represent a company and their values. If his actions are contrary to those of this employer, then they are well within their rights to part ways with him.
There doesn’t need to be an explicit social media clause, as conduct is implied so heavily throughout the RUPA standard playing contract. Having said this, Raelene Castle also issued a formal letter outlining Israel’s social media responsibilities.
Make no mistake, once Israel is no longer under contract, he will be free to say and do what he wishes, unless it’s considered discriminatory. Another issue for another day.
Free speech is certainly an interesting concept and well worth widespread discussion, but it is not as relevant in this instance as many would like.
Think before you tweet.