Freedom and the Commissioner

There have been quite a few recent cases raising questions around free speech and freedom of the press. Here are some thoughts, not all final.

First up, the question, raised by the cases of Peter Ridd and Israel Folau of whether employers can discipline or sack workers for their views on a range of issues.

Ridd is an academic at JCU who has expressed (often in intemperate terms) the (wrong and harmful) view that the damage to the Great Barrier Reef from climate change has been exaggerated. JCU sacked him, but his dismissal was found by the Federal Circuit Court of Australia to be unlawful.

This was a straightforward finding under industrial law, which accords no special status to academics. But there are good reasons why universities should adhere to a stronger standard, embodied in the notion of academic freedom. As the NTEU vice-president Andrew Bonnell said it’s clear that JCU breached its commitment to academic freedom.

The Folau case is much trickier. In a sense Folau’s religious views aren’t that unusual. Most Christian denominations hold, at least officially, that all non-Christians and all Christians who hold heretical beliefs will go to hell[1], along with Christians who die in mortal sin, which accounts for nearly everybody. But, as Brian Houston of Hillsong Church (not someone I expected to quote with approval) points out, telling people they are going to hell is not helpful either for religious tolerance or to convert them to the truth as you may see it.

What makes this case difficult is that Folau’s job is, effectively, one of marketing the Australian Rugby League so that it can attract sponsors (notably, in this case, Qantas). Whether or not Folau has a case against the ARL, no one can force the sponsors to renew the contracts, or, for that matter, the fans to show up (I don’t know many rugby fans, so this may or may not be an issue).

As is almost invariably the case, former Freedom Commissioner and IPA alumnus Tim Wilson comes out of this looking bad. Back in 2015, there was a similar case in which Scott McIntyre, an SBS sports commentator, expressed views about Anzac Day that were offensive in their content and even more in the way they were expressed on Twitter Even though McIntyre had nothing like Folau’s public profile, he was sacked. Wilson then “Freedom Commissioner” wrote that, since McIntyre was not legally prevented from speaking, there was no free speech issue

SBS simply decided it didn’t want to be associated with him. No one is guaranteed a job. Employers are not compelled to put up with behaviour that harms their public reputation.”

Now, Wilson is defending Folau against ‘censorship‘, even though, on the views he has previously stated, there can be no question of censorship in the absence of government action.

I wasted a lot of time on Twitter a few years ago, trying to pin Wilson down on this very question. I can now discern his position: if you say something acceptable to conservatives, it’s free speech, otherwise you can take your chances with the boss.

fn1. Just to tie things up neatly, denying the existence of hell is a heresy.

46 thoughts on “Freedom and the Commissioner

  1. One of the Cappadocian Fathers, St. Gregory of Nyssa, cautiously suggested that at the end of time even Satan would be redeemed, along with all the souls in hell. This Universalist speculation was condemned by the Church (I’m not sure which one), but Gregory has not been de-sainted. Institutional Christianity has included a good many admirable men and women, as well as far too many bigots and fools.

  2. I think you mean the ARU or Rugby Australia as it is known now. Unfortunately Scott’s rant had his SBS motif wrapped fully around it whereas Israel’s social media has nothing. If you did not know he plays rugby then you would still be unwise.

    Actually telling people the pitfalls of hell is one of the main evangelical devices.If they understns what it entails and how you get there then one is very interested to understand how to avoid it.

  3. Hopefully, later tonight I am going to write a comment here about jury nullification trials. Because jury nullification trials tie together the subjects of freedom of speech, education, and religious observances. This will give anyone who is interested a chance to inform their local barrister (honestly I have no idea what that is I just remembered I have often heard the phase on Alfred Hitchcock flims many a time.), or their local attorney, or legal aid, or university law proffessor.
    I will also issue an Islamic Fatwa. It will be binding on all Muslim members of the Scenic Path.
    Some may argue that I lack the qualifications. I say that if there are any qulifiactions that I lack the systems administrator will inform me before hand.

  4. The Folau case is much trickier. In a sense Folau’s religious views aren’t that unusual. Most Christian denominations hold, at least officially, that all non-Christians and all Christians who hold heretical beliefs will go to hell[1], along with Christians who die in mortal sin, which accounts for nearly everybody.

    Saying homosexuals will burn in hell is even worse, in my view, than saying black people or Asians or whatever ethnic or racial group you choose will burn in hell. This is because, even though we’ve made great progress in gay rights over the past few decades, gay folk are still stigmatised, bashed, bullied in school and of course harassed by Christian bigots. The end result is depression, anxiety, low self-esteem and suicide. Folau is welcome to his vile attitudes but given his position as a high profile role model, his right to express his bigotry should not trump the rights of gay folk to life, liberty and the pursuit of happiness.

    Actually, if it was up to me, religiosity would be declared a mental illness and the afflicted would be forcibly treated /ironic sarc off

  5. People are obviously always going to have ‘problematic’ opinions, for a variety or reasons (immaturity, ignorance, desire to hurt/teach others I guess, help, and who knows what else). They may even hold them for only a brief moment.
    In the past these would have had to be put in a newspaper or broadcast on the radio or TV (and then those broadcasting would have been at least somewhat accountable, and the opinion would have reached a few at a certain point in time only.
    The social media have changed all of this of course and people can self publish any opinion that then is available to anyone interested. So the problem is not so much Folau (or his opinion) as is the fact that we don’t know how to deal with this new environment we find ourselves in. To complicate things, even many of the nation’s leaders express ‘problematic’ opinions, and have made the ‘us against them’ rethoric the norm. In the absence of higher moral standards, Folau is just more explicit (young and inexperienced and less hypocritical) in his views, compared to many ‘mainstream commentators’.

  6. Folau is “less hypocritical”? I don’t think so. Why is he playing football for money and not for the glory of God since he knows so much about what God wants.

    And is he casting stones? and Jesus said let him who is without sin cast the first stone..

    Shame

  7. Sportsmen and sportswomen are hugely influential role models, whether they like it or not. When someone like Folau expresses anti-gay bigotry on social media, that influences what happens in the schoolyard and it makes it much harder for young gay aspiring rugby players to take up the sport. Gay folk have been vilified for far too long. Folau was given one warning. In the circumstances, a private sector employer should, in my view, be able to fire him.

  8. Julie Thomas,

    My comments were not to defend Folau.
    As to casting stones, my point is (a minor point really) that the more seniour members of our society, who should know better (at least for their education and age level, and privilaged position in the society) regularly ‘cast stones’ of various kind (or send into people’s eyes), but in a way that does not attract attention, and yet is perhaps (I’d say definitely) even more harmful that Folau’s comments (various religious groups, the government refusing to acknowledge and help a variety of disadvantaged people for example, including homosexuals, until very recently). Folau may simply be a little behind on this.
    My point is that he’s likely young (I don’t know anything about his beckground) and that he needs advice/help perhaps (from the wiki page he seems to have been a supporter of homosexual people once).
    We’ve all had ‘problematic’ opinions at some point, but luckily most of us were not silly enough, or young enough, to share them on social media.

    I wish people would think about causes behind things as well, rather than simply attack and blame (as this always sets a bad precedent).
    This would be of benefit even to all those groups that Folau ‘insults’: Instead of a quick condemnation, we could see Folau and all these groups as part of ‘us’ and have a constructive discussion on how to help everyone (not only those we deem are ‘worthy’).

  9. So have constructive criticism for sure, but have a rule against dehumanizing people, no matter who they are. This may result in everyone being happier. Acknowledge ‘faulty’ opinion as faulty, rarher than claim the human behind it is evil (they are human, perhaps sick, and in need of help, they have their reasons). Basically treat others the way we’d like them to treat us if we made a mistake.

  10. First up, the question, raised by the cases of Peter Ridd and Israel Folau of whether employers can discipline or sack workers for their views on a range of issues.

    One possible answer to this, evidently (and not at all to my surprise), is ‘It depends on what the enterprise agreement (or the contract) says’.

    The judge in Peter Ridd’s case said that the decision turned on the correct interpretation of a clause in the enterprise agreement under which Peter Ridd was employed, and concluded that on a correct interpretation the University’s actions, including the dismissal of Peter Ridd, violated the enterprise agreement.

    It seems Israel Folau’s employment is not covered by an enterprise agreement but by an individual contract.

    A spokeswoman for The Workplace Employment Lawyers said RA can argue that Folau breached his contract by going against legally correct direction RA gave him.
    “‘Free speech’ in the workplace is qualified by employee’s obligations under their contract. In this case, it appears that Folau was told about RA’s policies and its expectations in relation to his conduct,” she said.
    “Given the history, and as Folau is a public figure, RA is likely to have grounds for taking disciplinary action which may include termination of his contract.”

    Perhaps the matter will come to court and there’ll be a ruling, but it may be different from the ruling in Peter Ridd’s case for the natural reason that the legal conditions of employment are different.

  11. “I wish people would think about causes behind things as well, rather than simply attack and blame (as this always sets a bad precedent).”

    Me too… AleD do you ‘feel’ attacked and blamed and if so can you explain what it was that triggered you to feel attacked and blamed? Could you recall the sequence of thoughts hormonal brain chemistry changes that resulted in you concluding that you were being attacked and blamed?

    And second thought…is there possibly a way that you could have or could in future construe my comments as something other rather than attacking and blaming you? Is it all about you AleD or are you indulging in that exercise called jumping to conclusions.

    But what do you think about Tim Wilson and his responsibilities as a politician to do the right thing. I don’t think Libertarians feel shame do they. Is it against their religion?

  12. Andrew, I already knew I was going to hell because a couple of Jehovah’s Witnesses told me so; there seemed to be no doubt in their minds that I could find redemption even if I paid for indulgences or confessed. They said those sort of things were not part of their religion.

    So I’ve had therapy and am living well despite being on Folau’s list.

    But Tim Wilson is so diplomatic isn’t he – feels no shame so he can wiggle out of actually stating his position on things like this …” “I’m more of an agnostic, but I prefer to say that I haven’t found God but I’m on a journey and I may one day find God.” from Wiki with the original article linked.

    A hard line Randist could not really find fault with that and yet it gives the middle aged elite liberal ladies in his electorate who adore him some hope that he will come to their church with his lovely partner.

  13. What I was hinting at is that people, ie society (I don’t mean you Julie) often try to cure symptoms rather than the illness.

  14. First up, the question, raised by the cases of Peter Ridd and Israel Folau of whether employers can discipline or sack workers for their views on a range of issues.

    The question of whether employers are in fact able to dismiss employees for the expression of opinions can be distinguished from the question of whether employers should ever be able to dismiss employees for the expression of opinions.

    I can’t think of any good justification for the suggestion that employers should never be able to dismiss employees for expressing their opinions; I am comfortable with the position that employers should sometimes have the power to dismiss employees for expressing their opinions.

    The question which has the most practical interest for me is whether employees should have greater protection against dismissal than they do currently, to which my answer is ‘Yes’, although the question of exactly how to give greater protection involves technical issues which I’m not sure I’m equipped to comment on.

  15. Phew AleD I am so relieved to hear that you didn’t feel attacked and that you like me are simply offering free advice to people, ie society about how to cure symptoms rather than the illness.

    What is the illness you are aiming to cure?

  16. J-D

    The question which has the most practical interest for me is whether employees should have greater protection against dismissal than they do currently, to which my answer is ‘Yes’ although the question of exactly how to give greater protection involves technical issues which I’m not sure I’m equipped to comment on.

    An amendment to the Fair Work Act would suffice. However the Fair Work Act already provides protection against unfair dismissal, dismissal in breach of the terms of a fair work instrument and remedies for a general protection dismissal. Moreover, the Fair Work Commission can order reinstatement.

  17. An amendment to the Fair Work Act would suffice.

    Well, sure, but the technical question I’m not sure I’m equipped to comment on is what amendment to the Fair Work Act? It’s a bit like saying that what’s needed to reduce malpractice in the banking industry is amendments to the laws that govern banking: yes, but what amendments?

    However the Fair Work Act already provides protection against unfair dismissal, dismissal in breach of the terms of a fair work instrument and remedies for a general protection dismissal.

    Again, sure, but saying that it provides protection is not the same as saying it provides sufficient protection: if I thought it provided sufficient protection I wouldn’t be suggesting that employees should have greater protection, now would I?

  18. AleD:

    As to casting stones, my point is (a minor point really) that the more seniour members of our society, who should know better (at least for their education and age level, and privilaged position in the society) regularly ‘cast stones’ of various kind (or send into people’s eyes), but in a way that does not attract attention, and yet is perhaps (I’d say definitely) even more harmful that Folau’s comments …

    Israel Folau has 350,000 instagram followers. He posted his anti-gay hate speech in instagram. I imagine most of them are young and impressionable folk who are still figuring out what they believe. Folau does occupy a privileged position as a role model, he is 30 years old and his education level is immaterial in terms of the damage done by his views.

    The suggestion that we shouldn’t bother with it too much because “people who should know better” are also casting stones is illogical and patronising and a tu quoque fallacy. It is illogical since if someone casts a stone and it attracts little or no attention, it is by definition comparatively unimportant. It is patronising because it assumes Folau is immature and/or incompetent. Surely that is an uncharitable view of Mr Folau.

    I think a fairer and more reasonable view is that Mr Folau is honestly living his faith, which is of the pentecostal Christian variety- Folau is with the Assemblies of God. The Assemblies of God believe homosexuality is a sin that leads to hell and they believe they are on a mission from God to save souls. They also talk-in-tongues, practice faith healing and exorcisms. By Australian standards that is a little extreme but by American standards it is ho-hum (25% of Americans identify as evangelicals).

    The question Western countries are currently struggling with is how best to accommodate freedom of speech and freedom of religion while protecting minorities and marginalised groups from the very real consequences of influential public figures expressing bigoted and demeaning opinions.

  19. J-D

    Again, sure, but saying that it provides protection is not the same as saying it provides sufficient protection: if I thought it provided sufficient protection I wouldn’t be suggesting that employees should have greater protection, now would I?

    OK, given that the Fair Work Act 2009 already provides for reinstatement, injunctions to prevent dismissal and compensation, what “greater protection” do you believe is warranted? Is it possible that you don’t actually know what protections are currently available in the Act? There is no shame in not knowing.

  20. “The question Western countries are currently struggling with is how best to accommodate freedom of speech and freedom of religion while protecting minorities and marginalised groups from the very real consequences of influential public figures expressing bigoted and demeaning opinions.”

    I would argue that the minority (white anglo christian male) is the group struggling to maintain market dominance – it is their freedom of religion and speech that seems to be the issue.

    In a ‘free’ market it’s those with the biggest (gun megaphone money) who tend to win.

  21. One tiny problem, Rog. Israel Folau and a great many reactionary Christians are not White anglo males, they belong to minority ethnicities whose ancestors were converted during colonisation or more recently by evangelical groups.

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