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Michael Bradley

My client spoke her truth about Hawthorn — beyond that, she has no duty to the AFL

As Amy* tells it, one morning she and her partner were celebrating because they had just reached 12 weeks of pregnancy and felt secure enough to let the world know. Amy said goodbye to Ian* as he headed off to training at the Hawthorn Football Club, where he was a promising AFL draftee. He was going to give the club the good news and was proud as punch about becoming a dad.

Amy next heard from Ian that afternoon, a brief phone call in which he told her he wanted to end their relationship and the pregnancy. An hour later, his phone was disconnected. It would be months before they spoke again. According to his later account, members of the Hawthorn coaching staff had stood over him as he made the call and delivered the words they had told him to say.

That’s Amy’s truth, and it won’t be changing. She told it to the cultural safety review, which Hawthorn initiated in response to rumours of racist mistreatment of players. She told it to the ABC, which broke the story that five First Nations families were making allegations of racist mistreatment against the club.

The AFL announced an investigation, under its rules, into the allegations. Amy will not be participating in it. I’ve been talking to the media this week on her behalf, explaining why.

One question I got asked in an interview crystallised the confusion for me. Doesn’t Amy have an obligation, having made her allegations, to “see them through” and give those accused of wrongdoing an opportunity to make their defence?

No, actually. Trauma victims have no obligations whatsoever, beyond protecting their own safety and well-being. She has spoken her truth and accepted the risks that entails. She has rights, which she is not obliged to pursue but may choose to in her own time. She has no duty to the AFL, no duty to help it enforce its own rules.

When the AFL asked Amy to participate in its process, we sent its lawyers a long letter setting out in detail every flaw in its design. It tried to address some of them in the next draft. The most important of our concerns it ignored or rejected. When it sent us the second draft, it wanted our response the next day. A day after that, it said it would be finalising the terms of reference with or without us. Which it did, publicly issuing final terms that are materially different from anything we’d seen.

Fundamentally, the process is not safe for the victims of abuse it will supposedly investigate. This breaks down into a number of basic failures, all of which we had pointed out.

It is not independent of the AFL. The barristers conducting the investigation will of course act independently and with integrity; nobody is suggesting otherwise. But they have been selected and commissioned by the AFL, their terms of reference written by the AFL, their report will be to the AFL, and the AFL will control its release. The AFL’s own lawyers are assisting them and acting as gatekeepers of all the evidence they will consider. Independence is not solely a question of fact, but also one of impression. 

Amy has no reason to trust the AFL. Her perspective is unsurprising: “Why would I ask the protectors of the perpetrators who caused me all this trauma to then investigate the abuse?”

It is being rushed. Amy was placed under unconscionable time pressure to agree to the terms. The timetable for the process is extremely short, designed to be wrapped up by December. What is the urgency? Apart from wanting this all out of the way before the next AFL season, I mean.

It is neither trauma-informed, nor appropriately protective of First Nations peoples. Saying the words doesn’t make it so. Amy and the other complainants are trauma victims. Their needs — for time, space, safety and protection from re-traumatisation — have been ignored. The people who set up this process aren’t equipped to understand what is required.

But let’s step out of the weeds. We said to the AFL, don’t do this, don’t reduce the traumatic experiences of these people to a narrow binary interrogation of whether they’re telling the truth or lying. Don’t subject them to cross-examination, pretending this is just a simple fact-finding exercise relating to isolated incidents of wrongdoing. 

If you’re serious, we said to the AFL, if you want to find out why it is that these incidents — of what your CEO Gillon McLachlan called “horrific and appalling” treatment of First Nations peoples under your institution’s umbrella — keep emerging, if you want to get to the bottom of this, then you won’t treat it the same way you would a doping scandal. You would want to know, and you would recognise that you aren’t the right people to be exploring the question. You cannot investigate yourself.

However, the AFL has made its choice. And Amy has made hers. It’s not her investigation, and it will deliver nothing that benefits her. It would definitely cause her harm. She has done what anyone thinking rationally would do: protect herself.

But what about the coaches, whose reputations have been besmirched? What about the presumption of innocence? What is Amy doing to respect their rights?

Nothing. She’s doing nothing. They’re big boys — white men — with access to every resource they could ever need to pursue and vindicate their rights. 

Amy has spoken her truth. That is where her responsibilities end. If you are among those demanding more of her, you don’t know what trauma is.

*Names are changed for confidentiality.

Michael Bradley is Amy’s lawyer.

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