Folau's prospects bolstered by landmark religious freedom ruling in Britain

Published in The Sydney Morning Herald on 04/07/2019

Britain’s second highest Court handed down a decision on religious freedom that will send chills down the collective spine of Rugby Australia. In contrast, Israel Folau and his team will be thanking God for divine providence that is akin to manna from heaven.

In Ngole v the University of Sheffield, the English Court of Appeal have decided: “The mere expression of religious views about sin does not necessarily connote discrimination.

The factual similarities to Folau’s case are remarkable. Felix Ngole was a social work student at the University of Sheffield and a devout Christian. In 2014, he posted Bible verses about homosexuality on a public Facebook page as part of a political debate. Sheffield University accused Ngole of breaching a vague and broadly worded code of conduct. Through a hearing and two committee appeals, various bureaucratic apparatchiks repeatedly incanted that quoting Bible verses constituted “views of a discriminatory nature” and breached professional guidelines.

As the British appeal court stated: “The University wrongly confused the expression of religious views with the notion of discrimination. The mere expression of views on theological grounds (e.g. that “homosexuality is a sin”) does not necessarily connote that the person expressing such views will discriminate on such grounds.” This lines up almost exactly with Folau’s case.

Throughout his four-year ordeal, Ngole advised that he would never compromise his Christian beliefs. Ultimately, Sheffield University expelled him. A judge in Britain’s High Court confirmed this decision.

However, the Court of Appeal disagreed and has found that the University discipline process was fundamentally flawed. The university took an entrenched position early on, adopted processes that lacked insight and imposed a sentence that lacked proportion. This will be uncomfortable reading for Rugby Australia.

It’s not all bad news for the Union. Decisions from Britain are not strictly binding on Australian Courts, just instructive. Although difficult, the University might appeal to the UK Supreme Court. There are also plenty of differences between the two cases for Rugby Australia’s crack legal team to agitate in an attempt to blunt its force of application to Folau. It’s what lawyers do best and Rugby Australia has good lawyers.

There are other notable implications from this British decision for the Folau case.

Ngole’s case took four long years before he finally obtained his vindication. Many have criticised Folau for raising such a big war chest of legal fees. His fundraising efforts may be both prescient and proportionate given that he might face a similar long, hard and expensive legal battle.

The appeal court also took a distinctively different approach compared to the original judge. While the lower court judge gave a “full and meticulous” judgment that navigated a maze of dense common law principles and cases, the justices on appeal went to the heart of the matter.

This was about a failure of common sense. At the outset of the matter in 2014, the University had overreached and overreacted. They effectively purported to restrict Ngole from expressing his religious views in any public forum. The implication was that a professional should only express controversial religious views in absolute privacy.

The Court rightly pointed out that, if correct, no Christian would be secure in any profession, let alone Muslims, Hindus or Bhuddists. Further, Ngole’s expulsion was disproportionate, given that the posts were expressions of religious and moral views that were based on the Bible. This decision may resonate with an Australian court considering the termination of Folau, given our antipodean commitment to the Australian “fair go” for everyone.

Rugby Australia chairman Cameron Clyne has already trapped Rugby Australia on the wrong side of the ruck this week with his injudicious media comments, and he has dragged sponsors with him.

It isn’t quite the end of the Ngole dispute. It’s being remitted for a hearing before a new “fitness to practice” panel before the University of Sheffield. The appeal court said it could not “finally determine whether the appellant would have resisted the possibility of tempering the expression of his views or would have refused to accept guidance which would resolve the problem. This requires new findings of fact. This case should, therefore, be remitted for a new hearing before a differently constituted FTP Panel.”

But the Ngole decision will sting like the opposition’s sprigs on the union’s back, adding to Folau’s pressure for an apology.

Folau and his team have reason to be buoyed by this decision. It is a season of miracles. Here is a timely success story of a devout Christian besting a censorious bureaucracy.

 

John Steenhof
Managing Director
Human Rights Law Alliance

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