Jeff Kennett: Common sense has started to prevail in Hawthorn racism saga

Common sense has finally started to prevail in the Hawthorn racism saga and the Human Rights Commission’s decision will have enormous ramifications.

Common sense has at last started to prevail.

The Human Rights Commission has terminated a claim against the Hawthorn Football Club by past Indigenous players and their families because the parties could not come to an acceptable outcome for all parties.

Of course, the Indigenous players and their families now have a right to take their claims to the Federal Court if they so desire and it is their right.

This decision by the Human Rights Commission is correct and will have enormous ramifications not only for the AFL and its clubs, but also for all other sports and businesses, employers and employees.

The President of Hawthorn FC has publicly been trying to buy peace in his time by paying compensation to both sides, the complainants and those complained against, using members’ money.

The Board has finally rejected that approach, and the demands of the Indigenous players and families.

The Human Rights Commission has terminated a claim against the Hawthorn Football Club by past Indigenous players.

A brief history: claims were made publicly by one player and his wife alleging racism being directed towards him by some Hawthorn Club officials.

Hawthorn FC employed an independent group to ask all past and current Indigenous players and employees of their experiences at the Club.

A few other players expressed similar experiences.

That report only sought to gather information. The claims were not, nor could not be tested by the independent body as they were not qualified to do so.

The report was handed to the AFL and its Integrity Unit as required.

Before Hawthorn and the Integrity Unit could address the matters raised in the report it was leaked to the media. Not by Hawthorn.

Those who were accused of racism in the report were publicly named in the media.

Alastair Clarkson and Chris Fagan during their time at Hawthorn.

The AFL established an independent body to establish the truth of the claims. A body without any powers to call witnesses or to make a binding recommendation.

After many months and without delivering a report, it was disbanded by the AFL.

On the same day, the AFL declared there were no adverse findings against the three Hawthorn officials accused.

The Indigenous players and families then took the matter to the Human Rights Commission, who have now terminated their involvement.

Why is this decision today important? It might put an end to accusations being made by anyone, hoping to embarrass their employer into mediation, in the hope of gaining a financial settlement.

Where a claim of inappropriate behaviour is made, and the accused or the employer admits in whole or in part to the claim, a settlement through mediation makes sense.

Sometimes a matter will settle on a no admissions basis to avoid cost, but in this case those who allege wrongdoing are reported to want admissions that the Club and those complained against are not prepared to make, that is why the courts exist.

The Indigenous players and their families now have a right to take their claims to the Federal Court.

The Indigenous players and their families have every right to have their claims tested in the Federal Court if they wish to pursue the matter further, and I for one will accept the court’s ruling whatever it decides.

We are now witnessing claims being made about inappropriate racial comments that happened four decades ago. How can that be fair to all involved, with some at the time perhaps deceased, others not having a clear memory of the incident or incidents.

I think we must introduce a Statute of Limitations (SOL) of five years for racism claims. SOL’s exist, and are many and varied, for example for personal injuries are three years, from the date the cause of the action was discovered.

The statute should be proactive from the day any legislation is passed, not retrospective.

Finally, the recent Brittany Higgins/Lehrmann case which has just concluded “in all probability” against Lehrmann.

There is a message for all lawyers and legal firms given it is reported Lehrmann’s legal team took on the case on a no-win no-fees basis. If so, that legal firm must be out of pocket by hundreds of thousands of dollars. In future you might find many legal firms have second thoughts about taking on cases on this basis in the future. The publicity is no substitute for vast amounts of income lost and reputational damage.

As I said above when inappropriateness is conceded, settlement by agreement is fine. Where claims made are rejected, let the courts decide.

Let me conclude by saying I know the three Hawthorn officers accused of racism.

If called, I will be the first to stand in court to reject acts of racism by any of the three.

Inappropriate comments by today’s standards maybe, but racially delivered and intended, no.

It is time for society to stop giving in to claims that are not proven.

Have a good day.