Israel Folau would have case for unlawful contract termination under New Zealand law - Stephen Franks

Free Speech Coalition member and lawyer Stephen Franks believes New Zealand law wouldn't allow Israel Folau's rugby contract to be terminated as it has been in Australia.

In April, Folau posted a photo on Instagram which said all drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters would go to hell. 

His contract with Rugby Australia was subsequently terminated after he refused to remove the post and was found in breach of the organisation's professional players' code of conduct.

In June, Folau began a GoFundMe page to crowdfund money for "legal action", calling the termination of his contract "unlawful". The page raised over AUS$630,000 (NZ$664,051) before it was shut down on Monday afternoon. 

Franks believes if the same situation played out in New Zealand, Folau would have a case that the termination was illegal.

"I think the issue though for New Zealanders is that it probably would be unlawful for the rugby union to act in the way the Australian rugby union has and it would probably be unlawful for the crowdfunding agency to discriminate on the basis of Folau's religious belief," he told The AM Show on Tuesday. 

"I think New Zealand law would be against discriminating on the basis in which they have… If he ran his case under New Zealand law, I think he would win."

He said he didn't have an extensive knowledge of the Australian law and couldn't judge if Folau had a case there, but said Australians had typically taken a weaker stance on free speech issues than New Zealand.

But Franks said the rugby union had a right to only associate with people who reflected their values. Rugby Australia said after terminating Folau's contract that it wanted to stand by values of "inclusion".

"[Free speech] has been under attack by the rugby union and the sporting bodies in the sense that they have got someone expressing what is, up until recently, perfectly orthodox opinions and being closed down," Franks said.

"There is also freedom of association. Bodies shouldn't be obliged to associate with people they disapprove or sponsor views they disapprove of.

"You have, as always in these areas, a clash."

Franks said it was interesting that because Folau isn't "brandishing a spear and a grass skirt", people felt they could "dump on him".

"I think it's funny, the western world has been huge on cultural respect and cultural safety, he is expressing something that is a pretty deep part of his cultural, but just because he's not jumping around, brandishing a spear and a grass skirt, it seems perfectly permissible for everyone to dump on him.

"From the Free Speech Coalition would say, our tradition, our law, our democracy is built on meeting arguments and ideas that you don't like with argument, not using your power to ban it or say you can't say that."

GoFundMe shut Folau's page down as it believed it violated its terms of service. 

"We are absolutely committed to the fight for equality for LGBTIQ+ people and fostering an environment of inclusivity," the company said in a statement.

A spokesperson for Folau told the Sydney Morning Herald his camp believed the campaign was in line with GoFundMe's terms of service.

"The decision of GoFundMe to cancel Israel’s fundraising campaign to support his Legal Action Fund is very disappointing." 

"Unfortunately, GoFundMe has buckled to demands against the freedom of Australians to donate to his cause," the spokesperson told the Sydney Morning Herald.

The GoFundMe had been extremely controversial as people criticised Folau for asking for money while at the same time having a multi-million dollar property portfolio.

Former Wallaby Peter Fitzsimons told The AM Show on Tuesday that many Australians were "disgusted" by Folau's actions.

"The reaction to that has been very much, 'no mate' - that's been the vibe in Australia.

"We all know GoFundMe is used to help families of sick children and the like - people who need funds, because they need help from the community and the community helps them."


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