Senior judge criticises Hawthorn racism inquiry

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One of Victoria’s most senior and experienced former judges has criticised the unfairness of the process Alastair Clarkson, Chris Fagan and Jason Burt were submitted to by Hawthorn and the AFL’s racism investigation.

David Ashley KC, retired justice of the Court of Appeal of the Victorian Supreme Court, questioned the absence of detailed allegations against the trio and the protracted nature of the AFL inquiry.

Alastair Clarkson and Chris Fagan, pictured in 2015 when at Hawthorn, have denied any wrongdoing.Credit: AFL Photos

Ashley is also chair of St Kilda’s integrity oversight committee. This week the AFL held its annual meeting with the chairs of every club’s integrity oversight committee and the Hawthorn situation became a topic among the many of the attendees.

To illustrate the situation Clarkson, Fagan and Burt found themselves in, and why as a jurist he found the process troubling, Ashley offered an example of an equivalent scenario in the court system.

“Suppose, in the criminal law context, that a man was charged with a serious assault. There was a conversation with the prosecutor this way: ‘Who is it said I assaulted them?’ ‘I won’t tell you that.’ ‘What were the circumstances of this alleged assault?’ ‘I won’t tell you that.’ ‘When is it said that the assault occurred?’ ‘Some time in the last 10 years, but I won’t tell you anything more than that.’ ‘Have you obtained any corroboration of this alleged assault?’ ‘What I will do is tell the media that you have been charged with a serious assault, and that the maker of the allegation wouldn’t have made it unless it was true’,” Ashley said.

In the context of the Hawthorn case, there was no direct prosecutor putting allegations in the manner of the example above before the matters became public. And no detailed allegations have been put since they were public.

Ashley said for the fairness to both parties to explore their options the AFL’s inquiry should have been shorter if parties indicated they did not want to participate with the AFL.

Ashley questioned the initial terms of reference for Phil Egan when he investigated the experiences of Indigenous players at the club and provided feedback to them in the Cultural Safety report. He said he understood why Hawthorn, once they received the report, passed it on to the AFL’s integrity unit.

Ashley also pointed to comments Hawthorn great Shaun Burgoyne, who retired in 2021, is reported to have provided for the inquiry endorsing the Hawks and Clarkson.

“The circumstances in which Hawthorn commissioned the report from [Phil] Egan are unknown, but it appears for the most part that assertions of wrongdoing were not particularised, and we know that because Alastair Clarkson, Chris Fagan and Jason Burt have kept asking what is alleged?” Ashley told this masthead.

“It’s understandable that Hawthorn took the option of referring the matter to the AFL because it involved integrity issues, although another course of action would be to dig deeper because there had been a number of Indigenous players over the period of years and what Shaun Burgoyne has reported to have said recently has a potential counterweight to what Egan apparently concluded.

“It was understandable the AFL sought to conduct an inquiry at which the particulars of matters alleged against Clarkson, Fagan and Burt could be outlined and their responses obtained bearing in mind that the complainants might be unwilling to engage with the AFL.

“If they were unwilling to engage, then the sooner the inquiry was brought to an end the better, leaving the parties to determine what they individually wanted to do, if anything.

“It appears little, if any, progress was made in ascertaining the particularisation of what is alleged against any of Clarkson, Fagan or Burt over a protracted period of time in circumstances in which they have nothing to respond to, which is, at least, unfortunate.”

Clarkson, Fagan and Burt have strenuously denied the allegations and have said they look forward to clearing their names.

Clarkson recently took indefinite leave from his role as North Melbourne senior coach due to mental health reasons from the toll of the Hawthorn inquiry.

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