The lawyer for a woman at the centre of the Hawthorn cultural safety review says his client will not participate in the AFL's investigation, citing concerns about its lack of independence and respect for First Nations participants and his client "refusing to consent to the silencing tactics of the AFL".
On Wednesday, Marque Lawyers managing partner Michael Bradley and Professor Chelsea Watego of QUT's school of public health and social work, issued a four-page statement on behalf of "Amy" (not her real name), the former partner of a First Nations Hawthorn player whose experiences were among those outlined in the Hawthorn review.
The statement outlined five key reasons why Amy is refusing to participate in what Mr Bradley labelled the AFL's "self-proclaimed 'independent' investigation":
- Its lack of independence
- That it "continues the pattern of abuse it is supposedly addressing"
- That it has been unduly rushed
- That it is not "culturally safe", as the AFL claims
- That "the AFL does not have the appropriate appetite, expertise or strategy to effectively address the matters raised in the Hawthorn Cultural Safety Review".
Their statement said Amy's stance came "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".
"In refusing to participate in this unsafe process (the AFL Investigation), Amy is refusing to consent to the silencing tactics of the AFL."
Their statement quotes Amy as saying: "I could either stay numb and silent, or I could find my voice and play my part in the struggle to try and create safety and protection for our young ones who would inevitably face these systems" and "It's a little hard to speak up when it feels like your voice box has been pulled out of your throat".
The statement also claimed that Amy's "significant concerns" about the investigative process were largely ignored by the AFL and that she and other First Nations participants were given only two days to consider the AFL's terms of reference before the AFL publicly launched the investigation, "leaving her no choice but to not participate in the process".
Their statement included two of Amy's recent artworks, which Mr Bradley said, explained the toll of suffering experienced by Hawthorn families and their feelings of powerlessness.
'It is not an independent investigation'
A primary concern expressed by Mr Bradley and Professor Watego is the lack of a truly independent investigative process that the AFL had promised when the allegations from the Hawthorn families were first aired.
"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," the statement said.
"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.
"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."
'The scene is set to discredit the findings'
Mr Bradley and Professor Watego's statement claimed the AFL's handling of the matter "continues the pattern of abuse it is supposedly addressing" and reduces the experiences of First Nations players and their families to "a simple question of contested facts".
"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 statement said.
"The question the AFL should be asking itself is not 'Did these things happen?' but 'How did these things happen on our watch?'"
They strongly rebutted AFL chief executive Gillon McLachlan's claim that the matter was brought to the AFL by Hawthorn at the request of the families, saying "this investigation has been imposed on the players and their families, placing pressure on them at a time of deep distress".
"The investigation will include an examination of Phil Egan's review and its appropriateness, yet our request that it also examine both Hawthorn and the AFL's response to the review has been ignored. The scene is set to discredit the findings of the Hawthorn Cultural Safety Review and dismiss or downplay the testimonies of First Nations players and their families."
Their statement also revealed that the AFL's terms of reference for the investigation had speculated that the testimonies of First Nations people might be "inaccurate or unreliable" due to "cultural differences".
"While this makes hyper-visible the cultural otherness of First Nations players, so as to diminish their reliability as witnesses, it makes no reference to the matter of race and gender and the invariable power imbalance at play in the assessment of evidence," the statement said.
"In fact, until Amy pointed it out, 'racist behaviour' and 'racialised and/or gendered stereotyping' weren't even mentioned in the [terms of reference]. It is absurd that an investigation, launched in response to a leaked report into the racism experienced by First Nations players and their families, can't even name it.
"This omission was not an error, but a strategy, to protect perpetrators rather than victims, specifically from the accusation of racism. The plan is to reduce the issue of systemic racism to a simple question of contested facts."
'Specific concerns have been ignored'
Contrary to public commentary that the investigative process had taken too long to be established, Mr Bradley and Professor Watego said the timetable "places unacceptable pressure on First Nations players and their families, many of whom are dealing with severe trauma", and that the AFL's claims of a culturally safe process were a not sustainable.
"The critical need for trauma victims to have ample time and space to process information and maintain control over the disclosure and use of their own stories has been ignored," the statement said.
"Clearly there is a desire to get this matter out of the way before the 2023 season. Hawthorn president Jeff Kennett recently remarked that the issues (which included the loss of unborn children) were 'not a crisis' but 'a bump along the road'. The prioritising of the AFL brand over the experiences of the First Nations players and families replicates the patterns of coercive control of vulnerable people revealed by the Egan review.
"McLachlan has declared the investigation will be conducted in a culturally safe environment when Amy's specific concerns in this regard have been ignored."
Their statement outlined the five core principles of cultural safety: "reflecting on your own practice, minimising power differentials, engaging in discourse, undertaking process of decolonisation, ensuring you do not diminish, demean or disempower others through your actions".
"Against these criteria," their statement claimed, "the AFL cannot perpetuate the lie that the investigation will be conducted in a culturally safe environment."
"Surely someone could see what is wrong with the timeframe. Surely someone should have noticed the absence of racism in the [terms of reference] before distributing a draft to First Nations players and their families."
Mr Bradley and Professor Watego also said that — having promised anonymity to the players and their families at the outset of its review — Hawthorn was now asking them to consent to the disclosure of their personal information and "doing nothing to protect them".
"It is clear that this investigation 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," the statement said.
"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. We express our deep concern for the First Nations players and their families who are involved in this process — one that might as well have been consciously designed to reproduce the abuse that it is meant to be addressing."
The AFL responded to Marque's statement on Wednesday afternoon.
"We acknowledge the pain, trauma and grief of the experience from 'Amy' in the statement and it reinforces how serious these allegations are, and how important it is that the AFL treat them appropriately while ensuring a formal process that provides the opportunity to bring their experiences direct to the independent review in a supportive and respectful process to those impacted, and natural justice to those people against whom allegations of misconduct have been made," the AFL's statement read.
"As previously stated, the matter was brought to the AFL by the Hawthorn Football Club along with the consultant that undertook the review, and given the seriousness of the allegations, it was important to set up an independent external investigation that provides a clear and safe process to investigate the matters.
"The AFL can only investigate the matter under AFL rules, as that is the only jurisdiction we have the ability to determine and — as we have said previously – our process doesn't stop any impacted person from taking separate legal action or seeking redress in another forum or jurisdiction.
"As part of the detailed consultation process preceding the commencement of the investigation, proposed terms of reference were sent to the lawyers representing the potential participants and we took into consideration all their comments and concerns.
"Ultimately there needs to be balance of considerations (including cultural safety and fairness) and different perspectives and no individual had all their requests met.
"While the AFL still has not been informed of the identities of the persons/families who have recalled their accounts as part of the Hawthorn Football Club review, or with the journalist who published those accounts, the independent panel will continue to work with the legal representatives each of the parties has retained."
