In September, extraordinary allegations were levelled against Hawthorn Hawks Football Club, on the back of an external review undertaken by the club. In a report by ABC, it was alleged that key figures, including the head coaches, at the AFL club demanded the separation of young First Nations players from their partners and pressured one couple to terminate a pregnancy for the sake of the player’s career.

According to one anonymous player, the national broadcaster reported, “[four-time premiership-winning former coach Alastair] Clarkson just leaned over me and demanded that I needed to get rid of my unborn child and my partner”.

“I was then manipulated and convinced to remove my SIM card from my phone, so there was no further contact between my family and me. They told me I’d be living with one of the other coaches from that night onwards,” the player said.

Barristers to lead review

Following that report, Lawyers Weekly wrote about the myriad legal implications from the allegations, including discrimination, bullying, safety and duty of care.

In early October, four barristers were appointed as an independent panel to examine the allegations made against the club. The panel will be led by Bernard Quinn KC, who is joined by barristers Jacqualyn Turfrey, Tim Goodwin and Julie Buxton. Ms Turfrey is a Palawa woman (Tasmania).

At the time, AFL general counsel Andrew Dillon said: “These are very serious allegations, and it is important that we have an independent panel that is able to hear the perspectives of all involved and to provide natural justice to those making the claims and those who have had claims made against them.

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“It is also vitally important that the panel is able to complete its work independently of the AFL.”

The panel members, Mr Dillon said, are “all eminently qualified barristers that will be able to provide their intellect and significant expertise to the process”.

‘Not an independent investigation’

In a statement issued by Marque Lawyers managing partner Michael Bradley and Professor Chelsea Watego of the QUT School of Public Health and Social Work, Amy**, a Gunditjmara and Bunitj woman, reported that the Hawthorn Cultural Safety Review had forced her to relive the trauma and that she is refusing to participate in the “unsafe process” of the new investigation.

Her stance, as outlined in the statement from Mr Bradley and Professor Watego, “is out of obligation not just to herself or her family, but to the First Nations players that follow, who vest their lives and trust in a game that has so little regard for them”.

The pair wrote: “Through us, Amy raised significant concerns regarding the investigation with the AFL and asked for major changes, only some of which were incorporated into the final terms of reference (ToR).

“Several fundamental concerns were ignored, and Amy was given only two days to consider the ToR before the AFL publicly launched the investigation, leaving her no choice but to not participate in the process. To underline the lack of real consultation, the final ToR released by the AFL are materially different from the version provided to Amy two days earlier.”

The process that the AFL has determined to pursue is not independent of it, Mr Bradley and Professor Watego continued.

“While we cast no aspersions on the nominated investigation panel members, the entire process will be conducted under the control of the AFL and for the AFL’s purposes. If the AFL is genuinely concerned to unearth and expose the full depth of racist mistreatment of First Nations players and their families by one or more of its clubs, then it should engage an external body with appropriate expertise, operating completely independently of the AFL, to conduct a wide-ranging inquiry into the systemic racist abuses that the revelations regarding Hawthorn have exposed,” they submitted.

“Instead, the AFL’s own lawyers are assisting the investigation panel and corresponding with parties on its behalf.

“A lawyer was also appointed to represent the players and families, without their first being asked what they wanted or any consideration of the diversity of their interests. The investigation report will be the property of the AFL, which will decide when and how it is released.”

Reasons for refusal to participate

Amy also suggests, via Mr Bradley and Professor Watego, that the investigation continues the pattern of abuse that it is supposed to be addressing.

“The investigation won’t respond to the findings of the Hawthorn Cultural Safety Review but rather interrogate whether the incidents of abuse even took place, which is a huge insult to the many First Nations players and family members who were brave enough to come forward to share and relive the trauma they experienced. The question the AFL should be asking itself is not ‘Did these things happen?’ but ‘How did these things happen on our watch?’,” the statement read.

Moreover, the statement continued, it is being rushed with a timetable that is “wholly unrealistic” and “places unacceptable pressure” on First Nations players and their families, many of whom are still grappling with severe trauma.

Further, it is “not culturally safe”, Mr Bradley and Professor Watego wrote.

“A core tenet of cultural safety is that it is determined by the recipients of care, rather than its providers. Nevertheless, [AFL chief executive Gill] McLachlan has declared the investigation will be conducted in a culturally safe environment when Amy’s specific concerns in this regard have been ignored,” they submitted.

AFL’s lack of ‘appropriate appetite’ for change

Ultimately, and “given the amount of labour that Amy has exhausted in a short time frame to instruct the AFL on how to improve the ToR relating to race, racialised and gendered stereotypes, cultural safety, trauma-informed care, victim-centred approaches etc., and the inadequacy of the AFL’s response”, Mr Bradley and Professor Watego concluded that they have little confidence in its capabilities. 

“Surely, someone could see what is wrong with the time frame,” they wrote.

“Surely someone should have noticed the absence of racism in the ToR before distributing a draft to First Nations players and their families. The very first step taken by the AFL in the investigation has been to demand production of all personal information, including medical records, held by Hawthorn in relation to the players and their families.

“There is no safety in this; no regard to or respect for privacy, no cultural sensitivity, only brutal intrusion upon the most intimate and traumatic experiences in the lives of the victims of Hawthorn’s mistreatment.”

The investigation clearly does not have, as its focus, “a desire to remedy, or even be responsive to, the trauma that First Nations players and their families say they experienced. It is the bodies, minds and believability of First Nations players and their families that will be scrutinised and the same racialising logics that enabled Hawthorn to engage in inappropriate conduct will be enlisted in the very process designed to investigate it. First Nations people remain cast as the problem to be solved in this whole affair.”

** Not her real name.