They are slow learners at AFL headquarters.
But there are some clear signs of progress. Since the football community is a microcosm of our broader culture, these are reasons to be optimistic.
Adam Goodes’ Indigenous war cry has been immortalised by the Sydney Swans in a bronze sculpture at the club’s new home.Credit: Sydney Swans Football Club
When AFL champion Adam Goodes was hounded from the game in 2015, the unarguably racial element in the appalling way he was treated was widely denied by many of the media commentariat, some officials and much of the public.
When in 2017 Heritier Lumumba asserted he was subjected to regular racism at Collingwood, he was loudly and widely condemned for even complaining.
Now the laborious investigation into allegations of past racially based injustice at Hawthorn Football Club have gone nowhere in an uncomfortably long eight months. The lack of a satisfactory outcome for any of the people on either side of the dispute has left scars for not just the First Nations players and their families but the former Hawks coaching and ancillary staff.
Nobody is happy. When – not if – similar concerns are inevitably raised in the future, the lessons from this disappointing outcome will hopefully be applied.
When the Hawthorn complaints were first aired in Grand Final week 2022, the AFL bravely resisted the typical default reaction of lawyering up. Instead, and somewhat innovatively, the AFL put a toe in the mediation water, and invested in a hybrid alternate dispute resolution model.
While protecting the code and the brand from reputational damage was always the priority – it is the AFL after all – there was an undoubtedly sincere attempt to marry our mainstream litigious tradition with some aspects of Indigenous justice models.
Careful steps were taken from the start to include several senior Indigenous lawyers on the appointed investigatory panel, and their advice was sought about designing a tailored forum for dispute resolution where the acute cultural sensitivities of the First Nations families were embraced and accommodated.
Sadly, it is now clear that it did not work. Equally clear is that neither would a conventional legal response have suited this novel situation either.
Might a ‘restorative justice’ model, not a hybrid, have been a better option from the beginning? If so, how might it work?
Used regularly across Victoria for years now in the Koori Court, and based on Māori community court models in New Zealand, a restorative justice process prioritises listening and discussing over blaming.
Typically, a community elder sits alongside the presiding magistrate and contributes throughout the hearing. Disputants, the magistrate and a community elder are all seated together at a round table, and all parties listen while each side is asked to tell their story.
With minimal intervention by lawyers but guidance from the elder, everyone is required to hear – sometimes at length – about the harm caused and the damage done. It is not unusual for tears to be shared. Sustainable behavioural change and renewed relationships are the goal, rather than punishment or revenge.
Illustration:Credit: Matt Davidson
Not all disputes get resolved. There are no magic wands in the normal criminal nor civil courts, and ancient spirits do not suddenly appear in the Koori Court either. However, participants typically express gratitude and relief that they have at least been heard, that they had the opportunity to explain their grievance as well as express their feelings. That is an outcome itself.
The sceptics in the Department of Justice and Victoria Police have embraced the alternative system and subscribe to both the actual and potential benefits. It is not perfect, but better than conventional justice methods.
In a different but related context, within the political debate about both a Treaty with Indigenous Australians and about the Voice to Parliament, there is a consistent call for ‘truth telling’. It was exactly that values clash about the insistence on ‘truth telling’ that was at the core of the breakdown of the Hawthorn mediation.
Some participants saw ‘truth-telling’ as an assertion of formal corroborated and documented evidence, and proven facts, as would be admissible as evidence in a court of law. Others saw ‘truth-telling’ as the expression of a deeply felt belief, whether provable or not. These are not reconcilable within the Western legal tradition; a fact is not a belief and vice-versa. Hence, the impasse.
Understandably, the ex-Hawthorn [now North Melbourne] coach Alistair Clarkson and his former deputy, now Brisbane Lions coach Chris Fagan are deeply troubled at any suggestion that they harbour racist attitudes or behaviours. They, and Jason Burt (who was also at the centre of the allegations), have always denied wrongdoing and said they looked forward to clearing their name. The AFL’s investigation, of course, was terminated last week making no adverse findings against the trio.
Likewise, the families and ex-players are still embittered and are reportedly set to pursue their grievances in the Human Rights and Equal Opportunity Commission, which ironically operates through a mediation model, even though that failed with the AFL.
Our Westminster-based legal code is slowly accommodating other traditions – witness the protracted struggle to recognise native title instead of the fiction of ‘terra nullius’ that was eventually asserted with the High Court Mabo decision in 1992.
After hundreds of years of either ignoring or actively suppressing our Indigenous culture, we are slowly embracing and respecting its place in contemporary Australia.
The AFL’s search for a dispute resolution model that can resolve racial tension in the game is mirrored across the entire community. It is a challenge for us all, not just those in charge of professional sport.
