Families at centre of Hawthorn saga to take claims to human rights commission

Families at the centre of the Hawthorn racism saga are set to announce they will pursue claims in the Australian Human Rights Commission.

Legal counsel acting for the families, Leon Zwier, confirmed the group would pursue a claim through the human rights commission against the Hawthorn Football Club and former Hawks officials Alastair Clarkson, Chris Fagan and Jason Burt. The move could be announced publicly as soon as Wednesday.

Zwier represents the players and partners known by pseudonyms Ian, Liam and Jacqui, plus former Hawthorn champion Cyril Rioli and his wife, Shannyn Ah Sam-Rioli. It is unclear whether they all plan to be involved in the human rights commission case.

The AFL on Tuesday night reached an agreement with the families and apologised for past instances of racism in the game. Former Hawthorn officials Clarkson, Fagan and Burt were cleared of any wrongdoing under AFL rules, and have all strenuously denied allegations that they mistreated First Nations players and their partners at the Hawks between 2010 and 2016.

The investigation by the AFL’s independent panel, chaired by Bernard Quinn KC, was closed and the AFL released detailed measures to make clubs safer and more inclusive.

Families who are party to the AFL deal have agreed not to take further action against the league in the courts or AHRC, but there is nothing stopping them from making other claims against Hawthorn officials or the club itself.

The Australian Human Rights Commission can only confirm the lodging of a complaint with the consent of the parties to the complaint and do not comment on the progress of complaints unless there is agreement by relevant parties.

The process could involve conciliation but if that fails to achieve a resolution then action could be lodged in the Federal Court.

While the precise nature of the human rights commission claim is unclear, three sources familiar with the case said the families were not seeking a financial settlement, but wanted to engage in a mediation process and to have their stories heard and acknowledged.

Marque Lawyers managing partner, Michael Bradley, who is representing one of the members of a family involved in the Hawthorn review, said the AFL had achieved nothing in its settlement with those who agreed to participate in the investigation process.

Players and partners known by pseudonyms Ian, Liam and Jacqui made submissions to the AFL inquiry, but those with the pseudonyms of Zac and Kylie and Amy did not, their legal representatives questioning the investigating panel’s independence.

Bradley has guided Amy, a Gunditjmara and Bunitji woman, through the case, with Amy releasing a statement in November detailing what were described as “harrowing” claims she has made in the initial Hawthorn “cultural safety review”.

Bradley said on Wednesday the AFL had failed to achieve an appropriate resolution.

“I guess the AFL has achieved exactly what it set out to achieve. Nothing,” he told this masthead.

In November, Amy said she was in a relationship with a Hawthorn player when she alleges the club forced the man to leave her and tell her to have an abortion.

Bradley has maintained that Amy’s original decision not to take part in the investigation because of “unsafe” reasons had been the right call.

“Our client’s view is that the recent developments only reaffirm that she made the right decision to stay out of the AFL’s hopelessly compromised process. It has descended to farce, and she wants no part of it,” Bradley said earlier this month.

Lawyer Judy Courtin, acting for Zac and Kylie, has also slammed the investigative process, and said her client was preparing for civil action. Courtin was contacted for comment.

Hawthorn face a separate investigation and, depending upon the outcome of that investigation, possible AFL charges over how the Hawks’ 2022 “cultural safety review”, or Binmada Report, was commissioned and handled. The report was leaked to the ABC before those subject to the serious accusations had an opportunity to respond.

Clarkson, the four-time premiership coach, his former football boss Fagan, and former welfare manager Burt had strenuously denied all allegations in the original ABC story and had said they look forward to clearing their names. Clarkson, now the North Melbourne coach, has taken indefinite leave from his role for mental health reasons from the toll of the Hawthorn inquiry.

Brisbane coach Fagan on Tuesday night released a statement criticising the “farce of the process”, re-asserting his innocence and declaring that he, Clarkson and Burt had suffered a “travesty of justice”.

“I am conscious that this farce of a process cannot have been easy on those First Nations people who were complainants. Those whom I knew, I hold no grudges against and hold only a wish that whatever pain they are suffering can be healed over time,” Fagan said in a statement released by his lawyers.

“The combination of the AFL investigation, the ABC article that was published making very serious allegations against me, and the leaks that have occurred to the press, have amounted to a travesty of justice. It has caused tremendous hurt to me, those who care about me, and other people whom I know to be innocent of wrongdoing, such as Clarko and Jason Burt. These are fine men and they have been publicly shamed by false allegations.

“I have always categorically denied all of the allegations against me. The allegations are false. I am completely innocent. I have never deviated from that position as I knew from the beginning that the allegations were false. I have never had my chance to publicise my position on the allegations that the ABC chose to air publicly.”

Fagan said he remained bound by a confidentiality agreement but suggested that he recently had documents released to him by the inquiry which “support the categorical denials of the allegations against me that I have stated from the outset. I can also say that for my part, I would be completely happy for all of these documents to be made public.”

“I am not a party to the agreement between the complainants, the investigation panel and the AFL. But I stand vindicated by it.”

The Hawks review was sparked by an interview in The Age in April last year with Hawks champion Cyril Rioli and his wife, Shannyn Ah Sam-Rioli, in which they said they were poorly treated during Cyril’s playing career, and in which Shannyn said she was “belittled and humiliated”.

The couple did not feature in the ABC report but later joined the players and partners known by pseudonyms Ian, Liam and Jacqui in making submissions to the AFL inquiry.

AFL STATEMENT – HAWTHORN INDEPENDENT INVESTIGATION

(Released on Tuesday night)

The AFL today announced outcomes in relation to the Independent Panel Investigation into allegations of inappropriate conduct at the Hawthorn Football Club.

From the moment that the Hawthorn Football Club’s Binmada report was leaked without any opportunity for input from the persons against whom serious allegations were made, it has been a period of high distress for all parties.

The AFL wishes to reiterate and acknowledge the significant emotional toll it has taken on everyone affected by this complex and delicate situation - those who told their stories and those who stood accused - and the public nature of how it has played out since late September 2022.

With this backdrop, any investigation was going to be challenging. We believe strongly, as we did in setting up the Independent Investigation in October 2022, that the appointment of an independent panel is and was the best possible way to deal with these serious allegations. The AFL thanks panel Chairman Bernard Quinn KC and panel members Tim Goodwin, Jacqualyn Turfrey and Julie Buxton for their work over the last seven months.

The purpose of the Independent Panel Investigation was to investigate relevant matters and make recommendations to the AFL including as to whether any persons should be the subject of disciplinary action for breach of AFL Rules and the resolution today should be viewed through that lens.

The AFL is only able to impose sanctions for breaches of AFL Rules on persons subject to the AFL Rules and respects the right of the various parties to the Investigation (and those who decided not to participate) to pursue claims in other legal forums.  Today’s outcomes do not interfere with those rights.

Today the AFL, and the six complainants (“Complainants”) who took part in the process (“Parties”), with the endorsement of the Independent Panel including panel Chairman Bernard Quinn KC, have resolved as follows:

1. No adverse findings have been made in the Independent Investigation against any of the individuals against whom allegations have been made (“Individual Respondents”).
2. The Complainants wish to resolve all differences with the AFL.
3. As a result of this agreement, the Complainants do not wish to pursue the Independent Panel Investigation (which they wholeheartedly supported), or make any claims against the AFL in any other process (including the AHRC) or Court in relation to their allegations.
4. The Complainants agree that their allegations should not be further investigated by the Independent Panel.
5. The AFL has now terminated the Independent Panel Investigation with the consent of the Complainants with no charges to be brought against any Person subject to the AFL Rules as a result of the Independent Investigation.

The Parties make the following acknowledgements:

1. The AFL acknowledges each one of the Complainants feels hurt, pain and anguish following their time at the Hawthorn FC.
2. The Parties acknowledge that the manner in which their allegations were leaked to the media was not in any party’s best interests.
3. The Complainants acknowledge that the Independent Panel established by the AFL was a positive and constructive process for their allegations to be fully and fairly investigated in a culturally safe way and that they have only agreed to the termination of that process because of this agreement.

This agreement does not preclude the AFL from bringing a charge under AFL Rules against Hawthorn FC with respect to the commissioning and oversight of the Binmada Report.

The AFL greatly values all players and officials in our game and commits to working with all the clubs and all its people in continually improving the environments and ensuring they are welcoming, supportive and understanding of everyone who comes to our game.

There have been hundreds of Aboriginal and Torres Strait Islander players who have played our game and who have collectively played more than 25,000 games.

The AFL knows that during the long history of our game there have been instances of racism and that players have been marginalised, hurt or discriminated against because of their race and for that we say sorry.

The AFL further commits to devoting significantly increased resources to its continuous improvement model focussed on measures to combat racism and the improvement of cultural safety of First Nations players and their families in the AFL and AFLW.  We are wholeheartedly dedicated to meeting our obligations to make the game stronger and safer for all players, and we understand that requires us to continually address our structures and systems, and to this end, the AFL agrees to undertake a series of initiatives listed at the bottom of the statement.

Bernard Quinn KC, the Chairman of the Independent Panel said: “The panel supports the agreement and outcomes that have been announced today in connection with the investigation of the past several months and I can confirm that as part of the agreement the work of the Panel will cease.”

Finally, under the agreed terms for the resolution including the agreement of the Panel chairman to the immediate termination of the Independent Investigation, the AFL confirms that the Panel will not issue a report based on the information they have been provided to date.

AFL COMMITMENTS: The AFL continues to benefit greatly from the contributions of Aboriginal and Torres Strait Islander players and the increasing diversity of participants in our game whether it is players, staff, coaches, umpires, administrators, broadcasters, governance leaders, corporate partners and fans.

A number of steps have been taken over the years to improve our on and off-field environments, from the introduction of the Racial and Religious Vilification rule (now Peek rule) in 1995, to the introduction of the Aboriginal and Torres Strait Islander Council in 2015 to the mandating of Indigenous Player Development Managers at all 18 AFL clubs in 2022, but the AFL understands more needs to be done at all levels of the game to provide a safe and welcoming environment for all.

The AFL has committed to a series of initiatives designed to ensure everyone in our game from players on the ground to supporters in the stands have a role to play in ensuring football at every level provides an inclusive environment.

The AFL initiatives, some of which are well progressed and others which will be undertaken in the future, include:

GOVERNANCE AND STRATEGIC UNDERTAKINGS

1. Recommendation of Indigenous board representation across all 18 AFL Clubs and timeline established;
2. Plan to increase cultural diversity of AFL umpiring and officiating (tribunals) cohort and workforce;
3. Design and implement an Aboriginal and Torres Strait Islander employment and retention strategy for the AFL;
4. Ensure development of Risk management strategies and plans relating to cultural capability and related policies in Clubs;
5. Multicultural players – consider recommendations for these player cohorts specifically through a process as part of final recommendations of the Cultural Belonging and Inclusion Strategy;
6. Whistle-blower strategies – standardized education to assist understanding of these policies and how they work and in particular assist players to exercise their rights to make reports under those policies and more generally to seek support, ask questions and report concerns;
7. Multicultural players – consider recommendations for these player cohorts specifically through a process as part of final recommendations of the Cultural Belonging and Inclusion Strategy;
8. Player family engagement – establish a rules of engagement document to guide this work to establish some basic standards and principles to be observed and committed to.

TRAINING

1. Delivery of cultural safety and awareness training programs to AFLW / AFL Club, Player and AFL staff commenced – development of preferred providers list for cultural awareness.  Mandate cultural safety and awareness training (according to set timeline with deadlines) for all coaches (including assistant coaches) at AFLW/AFL level (and potentially other AFL and Club Officials and/or staff) with training to be completed to assure accreditation and therefore on entry into the Elite system and then undertaken periodically to maintain accreditation; 
2. Provide access to resources for cultural safety and awareness training to Community Leagues and Clubs. Training on vilification and discrimination to be available for community stakeholders in 2023;
3. Virtual information session from Facebook / Instagram to AFLW / AFL Players and Clubs on use of new features to protect against online abuse;
4. Ensure training and implementation of the Social and emotional well-being wheel that supports culturally appropriate and relevant well-being models for Aboriginal and Torres Strait Islander peoples as players and staff;
5. Aboriginal Mental Health First Aid Training for all relevant club staff beyond IPDM staff;
6. Player managers – improve cultural capability of player managers, including working with AFLPA to include as a requirement for accreditation.

COMMUNITY

1. Appointment of centralised racial vilification tribunal model for community football leagues and Clubs developed and implemented;
2. Support and collaborate with AFL and AFLW players on advocacy for community racism and inclusion issues.

PARTNERSHIPS 

1. Proposed strategic partnerships endorsed – spectator racism, social media, etc (partnerships include with eSafety Commissioner, working relationship with Meta, and signatory to the Australia Human Rights Commission guide to address spectator racism).

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