Israel Folau and A What Not to Do Guide to Mediation About Religious Speech

Dr Mitchell Landrigan, Adjunct Professor, Faculty of Law, University of Technology Sydney, gives us his thoughts about the strategy adopted in the Folau and Rugby Australia dispute.

Where there is a dispute, there where arguments are presented which would lead to his sacking. He ‹• ‘ϐŽ‹ –Ǥ—‰„›—•–”ƒŽ‹ƒƒ† (by lawyers) in a setting of legal said gays would go to hell. Israel Folau were (and still are) in ‘ϐŽ‹ –Ǥ dispute about Folau’s April 2019 Folau reportedly met in April Instagram post. The matter is Mediation between Folau and 2018 with Rugby Australia’s seemingly destined for the courts. Rugby Australia (possibly representatives, including Rugby ‡–ǡ ‘—”–•ƒ†“—ƒ•‹ǦŒ—†‹ ‹ƒŽ involving other stakeholders such Australia’s chief, Raelene Castle, tribunals are generally not effective as sponsors) could have given to discuss Rugby Australia’s ˆ‘”—•ˆ‘””‡•‘Ž˜‹‰ ‘ϐŽ‹ –ǤŠ‡› Folau an opportunity to explain concerns about the post. After are forums for deciding upon, and to affected parties (say members the meeting, Castle addressed a ruling on, points of law after judges of the LGBTIQ+ community) his press conference. While referring or tribunal members review facts perspective on his expression and, Ȃ’‘‹–‡†Ž›Ǧ–‘–Š‡‹’‘”–ƒ ‡‘ˆ and receive submissions from likewise, for affected parties to rugby players respectfully using lawyers. Their decisions are binary. explain to him the possibly hurtful social media, Castle announced that Rugby Australia’s own procedures effect of his speech on them. The Rugby Australia was proud of Folau directed the Folau dispute to a participants could have learnt from for standing up for his religious specialist tribunal hearing. A each other about the motivations beliefs. Castle also said that Folau tribunal of three found Folau for, and effects of, provocative had accepted at the meeting that to have committed a ‘high level and potentially hurtful religious he could have put a more ‘positive breach’ of the Code. That appears speech. It is, of course, possible spin’ on his Instagram message to be the full extent of any formal that no mediation would have and that he had acknowledged at dispute resolution about the limits been effective in resolving these the meeting that he could have of Folau’s religiously motivated differences because the parties conveyed the same message less speech. would under no circumstances be disrespectfully. prepared to explain their interests There are better (and cheaper) –‘‡ƒ Šƒ‘–Š‡”Ǥ ‘™‡˜‡”ǡ‹–‡”‡•–Ǧ It is not clear whether Castle methods of dispute resolution based dispute resolution seems understood the implication of than decisions by courts and to have not been given a chance. her describing Folau as being an tribunals. Consider, for example, It is as though Rugby Australia ineffective spinner of religious dispute resolution by mediation. A considered the Folau message to be beliefs. A man who believes in skilled mediator can help parties so polarising that Rugby Australia biblical inerrancy is unlikely to to articulate their ‘interests’ rather forgot how to engage in dispute react with pleasure to the notion than only their opposing ‘positions’. resolution other than via litigation. that he conveyed a biblical message ™‡ŽŽǦ ‘†— –‡†‡†‹ƒ–‹‘™‹–Šƒ ™‹–Š‹•—ˆϐ‹ ‹‡–Ǯ•’‹ǯǤ ‘Žƒ—•‘‘ skilled mediator (or more than one It is useful to provide some expressed his disappointment mediator, if considered necessary) background to the Folau saga. online about the message Castle can be a more effective method This starts on 4 April 2018. Upon conveyed at the press conference. of resolving disputes – and with tearing a hamstring, Folau wrote He disagreed with her version of Ž‘‰‡”Žƒ•–‹‰‘”‡„‡‡ϐ‹ ‹ƒŽ a biblically themed message on events. This apparent disparity ‡ˆˆ‡ –•Ǧ–Šƒƒ„‹ƒ”›–”‹„—ƒŽ Instagram about his ‘trials’. He of understanding between Folau ruling. Mediation can involve responded to an online question and Castle about the content of multiple parties, each expressing (addressed to himself) about what 2018 meeting suggests there was and, crucially, listening to, and happens to gay people. Folau’s no concerted effort by Rugby understanding, the perspectives message at the time was similar Australia to agree with Folau of others. It is the antithesis to the one he would post on and document at the conference ‘ˆ“—ƒ•‹ǦŒ—†‹ ‹ƒŽ’”‘ ‡‡†‹‰• Instagram on 10 April 2019, and what Rugby Australia would

Communications Law Bulletin Vol 38.2 ( June 2019) 15 communicate afterwards. It also is unclear why the tribunal chose It is not at all obvious how much likely pointed to future problems –‘’Žƒ ‡ƒ›•‹‰‹ϐ‹ ƒ–™‡‹‰Š–‘ consideration Rugby Australia in the relationship. Rugby Australia Folau’s lack of remorse, given that, gave to the concerns of some of nevertheless extended Folau’s in 2018, Castle had commended the parties with stakes in the playing contract for four years in Folau for holding steadfastly to his Israel Folau matter and how their late 2018, reportedly sans a social religious views. interests would be catered for by media clause. Ž‹–‹‰ƒ–‹‘ǤŠ‹•’‘‹–™ƒ•‘‡Ǧ In May 2019, Rugby Australia –‘‘Ǧ•—„–Ž›‡’Šƒ•‹•‡†„›•‡˜‡”ƒŽ Folau again posted a message announced that it would terminate mostly Polynesian Christian rugby on Instagram on 10 April 2019, Folau’s contract. In June 2019, players ostentatiously expressing condemning homosexuals to Folau launched a website to raise their religious solidarity with hell. It is not obvious what (if money to pay for the legal costs of ‘Žƒ—–Š”‘—‰Š‘Ǧϐ‹‡Ž†‰”‘—’ any) concern or event prompted his looming litigation with Rugby prayer after games during the Folau’s message. His post relegated Australia. This website (having 2019 season. Nor is it various classes of persons to ”‡’‘”–‡†Ž›”ƒ‹•‡†̈́͹ͷͲǡͲͲͲ‹ clear whether Rugby Australia ever hell, including homosexuals. The four days) was ‘taken down’ for sought to identify all the parties message could have been deeply allegedly breaching GoFundMe’s with possible interests in the Folau hurtful to members of the LGBTIQ+ terms of service; the site also dispute (including, a major sponsor community (if not necessarily appears to have been the subject of a women’s national sporting the atheists, who were included of a denial of service attack. team in a neighbouring country) in the extended catalogue of The Australian Christian Lobby and whether these parties might, sinners). Folau may, it should be offered to host an alternative if given a choice, prefer there to be said, have intended his message crowdsourcing site for Folau and some attempt by Rugby Australia at to be a positive one and to not be it pledged $100,000 towards his private mediation. merely condemnatory of gay and legal costs. In less than a day, its lesbian people: he urged such alternative crowdsourcing site It would seem that the interests of people to repent. This message had raised more than one million few if any stakeholders have been of repentance, however, connotes Australian dollars for Folau. preserved by Rugby Australia’s •‹ˆ—Ž‡••Ǥ˜‡‹ˆ’‘••‹„Ž›™‡ŽŽǦ “—ƒ•‹ǦŽ‹–‹‰ƒ–‹‘Ǥ ‹”•–ǡ–Š‡”‡ƒ”‡–Š‡ intentioned, this aspect of Folau’s In the meantime, Folau’s wife, ‡„‡”•ƒ†ƒˆϐ‹Ž‹ƒ–‡•‘ˆ—‰„› message may have exacerbated its Maria Folau, a netballer who Australia – the rugby clubs, teams offensiveness and hurtfulness. represents the New Zealand and players – who aim (or should national team Silver Ferns and aim) to be inclusive of all their Rugby Australia announced now plays for the Adelaide members, irrespective of members’ publicly, and swiftly, that Folau’s Thunderbirds, reposted her sexuality or beliefs. Folau’s sacking online comments breached the husband’s GoFundMe plea. This sends a strong message to the players’ Code of Conduct and that led to Netball Australia and Super clubs, teams and players (including it would seek to terminate Folau’s Netball issuing a joint statement his own former Waratahs and ˆ‘—”Ǧ›‡ƒ”‡’Ž‘›‡– ‘–”ƒ –Ǥ defending netball’s inclusiveness. Wallabies teammates), that – the Wallabies Netball South Australia shared homophobic expression will not head coach – lamented publicly, its views about Maria Folau’s be tolerated. But termination of and precipitously, that he would reposting of her husband’s plea, an employment contract after not be able to select Folau in the stating that, while Netball South a tribunal decision is a blunt national team. Within little more Australia did not endorse the Maria outcome. Those clubs, teams and than a month of the April 2019 Folau reposting, it did not believe players include members with Instagram post, Rugby Australia that Maria Folau’s endorsement of strong beliefs (such as some of the and Folau had appeared before her husband’s plea contravened Polynesian players). a specially convened Rugby any social media policy. ANZ, a Australia tribunal hearing, before sponsor of the Silver Ferns stated Some members may now three independent experts. The publicly that it did not support wonder about the limits of tribunal handed down its ruling. Maria Folau’s views. In response to any public expression of their It recommended that, because ǡ‡–„ƒŽŽ‡™‡ƒŽƒ† Žƒ”‹ϐ‹‡† own views. Rugby Australia ‘Žƒ—Šƒ† ‘‹––‡†ƒŠ‹‰ŠǦŽ‡˜‡Ž that it, too, valued diversity has not explained how people breach of the Code (and had shown and explained that it did not can respectfully express their no remorse or willingness to consider Maria Folau’s reposting religious views within a sphere of retract the post), the appropriate of her husband’s message to have tolerable provocativeness. Rugby action from Rugby Australia was breached any of its social media Australia has also, in my view, to terminate Folau’s contract. It policies. not provided the public with a

16 Communications Law Bulletin Vol 38.2 ( June 2019) compelling narrative to account in a team (or a player) courting negotiation – can bring parties for its sacking of Folau. It could controversy. , the together with the mutual objective have been no more complicated CEO, expressed this view pithily of resolving disputes. It is not than Rugby Australia explaining when he said ‘We don’t sponsor ‡ ‡••ƒ”‹Ž›ƒ‘‡Ǧ‘Ǧ‘‡ƒ –‹˜‹–›Ǣ that it does not support its paid something to get involved in mediations can involve multiple players publicly (cf privately) controversy. That’s not part of the stakeholders with divergent using religious speech to morally deal.’ perspectives. A skilled and denounce minorities such as experienced mediator (or, in some the LGBTIQ+ community and/ At one level, the tribunal cases, more than one mediator) or to publicly (cf privately) proceedings and the termination can help the parties to identify/ equate LGBTIQ+ people with of Folau’s contract would appear to express their interests and – drunks, adulterers, liars, thieves, have addressed sponsors’ concerns. critically – to understand the values fornicators and idolaters. Rugby Yet the outcome pursued by Rugby and passions of the others around Australia’s sacking of Folau will Australia has likely resulted in the the table. The process can be slow, also not deter him from publicly loss to the game, and possibly to and it requires patience. Yet is expressing similar views as an sport more generally, of a marquee has the real potential for parties unemployed – yet still famous – player. It is hard to conceive of who have seemingly intractably former sporting star. There is the how the termination of a player’s opposing ‘positions’ to understand potential for Rugby Australia’s contract over his speech could be the ‘interests’ of the others and to termination of Folau’s contract in the sponsors’ best interests. A work towards mutually acceptable, –‘–—” ‘Žƒ—‹–‘ƒ‘†‡”Ǧ†ƒ› better outcome would be that Folau Ž‘‰Ǧ–‡”‘—– ‘‡•Ǥ‡†‹ƒ–‹‘ martyr of bureaucratic opposition continued to play for the Wallabies table comprising Folau, sponsors, to free religious expression. It is of (or could be available to play for and representatives of the LGBTIQ+ note that the Anglican Archbishop them) with a mediated agreement community could have achieved of Sydney, Dr Glenn Davies, has in place about his social media a better outcome – a potentially declared Folau’s ‘right’ to religious posts which then, if he breached, more conciliatory one – than the ‡š’”‡••‹‘–‘„‡Ǯ˜‹Ž‹ϐ‹‡†ǯǤ ‘Žƒ—ǯ• could be enforced (perhaps after situation Rugby Australia now public following may continue to further mediation). All of which faces. As noted, the mediation grow. So may his frustration. could be achieved without a public may have failed. Perhaps the dispute about free expression at parties would have no desire or Secondly, there are the members a time when interest in rugby in willingness to listen to, or face, of the LGBTIQ+ community, who Australia is ebbing. each other. In this case, however, should – rightly – take strength regretfully, mediation as a form of from Rugby Australia’s strong On announcing the termination dispute resolution appears to have stance against potentially harmful, of Folau’s contract 10 days after not even been conceived of. even homophobic, statements from the decision of the independent ƒŠ‹‰ŠǦ’”‘ϐ‹Ž‡•’‘”–•ƒǤ‡–ǡ‡˜‡ tribunal, Castle advised that Rugby Australia was ‘left with … no choice These are the author’s (and only the some members of that community author’s) personal views may now wonder about the limits but to pursue a course of action of their own free expression and resulting in today’s outcome’. This they, like rugby’s sponsors, have statement is telling. It suggests ‘™Ž‘•––Š‡„‡‡ϐ‹–•‘ˆ™ƒ– Š‹‰ that Rugby Australia did not even a player who, at his best, is one of consider mediation to be an option. rugby’s great players. Mediation – a highly effective ˆ‘”‘ˆˆƒ ‹Ž‹–ƒ–‡†‹–‡”‡•–Ǧ„ƒ•‡† Thirdly, as suggested, there are the sponsors of Rugby Australia, including Qantas. The chief commercial interest of rugby sponsors (and of sports sponsors generally) is in the sponsored SAVE THE DATE party – the Wallabies or Folau as CAMLA AGM AND EOY DRINKS –Š‡ ƒ•‡ƒ›„‡Ǧ„”‹‰‹‰ƒ•— Š economic reward as possible for GILBERT + TOBIN the sponsor by winning matches or scoring tries. Or at least, trying to 28 NOVEMBER 2019 win games. It is a simple equation. A sponsor has no economic interest

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