From the Editor

Playing fair the most important element of sport

MICHAEL ESPOSITO, EDITOR

Adjudicating can be a thankless task. Whether you’re a junior soccer referee or a Supreme Court judge, your decisions only tend to be focused on when they fail to meet expectations. Both such examples require the interpretation of a complex set of rules and involve two competing sides. You don’t do the job to please everyone, and the feedback you receive is usually from the most displeased (however one might argue that it is reasonable for judges to be exposed to a high level of scrutiny but the referee of the local under 7s soccer match should perhaps not be subject to such vitriol!).

Sport seems to infl ame passions to an outsized degree. Any ardent supporter knows how it feels to have their whole weekend mood turn on the result of their team’s game. I am writing this article the day after an umpire’s controversial decision not to call a deliberate out of bounds was potentially the difference between utter devastation and elation for Adelaide Crows’ fans, whose team held on for a one-point victory over Melbourne.

We also see the extreme level of interest in sport in the way the AFL Tribunal is scrutinised. Just as the language of sports games often echo the vernacular of war, the reporting of AFL tribunal hearings is often done with such grave solemnity that it can resemble serious criminal trials.

It is fair to say that the Tribunal has long grappled with perceptions of inconsistency. As legal practitioners know, while every decision should be based on the individual facts, there needs to be a level of reliability with how laws are interpreted and applied.

We have seen the Tribunal run into particular problems with the introduction of rules designed to protect players from severe head injuries. The bewildering differences in penalties handed down for “sling tackles” betrayed an inconsistent approach to how they were assessed. For a time, two equally dangerous tackles would produce starkly different outcomes, because the victim of one of the tackles happened to be lucky enough to escape serious injury.

Pleasingly, the AFL recognised this and amended the rules half way through last year to ensure the dangerous nature of the tackle was taken into account, regardless of the consequences.

Nevertheless, controversy erupted earlier this year when ALFW Crows player Ebony Marinoff was initially suspended for three weeks for a bump that resulted in her opponent Brid Stack suffering a fractured vertebra. Marinoff, represented by Sam Abbott QC, appealed the decision, and ultimately succeeded, arguing successfully that Marinoff did demonstrate a duty of care, could not have realistically avoided the collision, and that the severity of the injury should not have a bearing on the grading of the conduct. Injuries are part of sport, and there needs to be a clear difference between deliberately or recklessly dangerous conduct, and honest competitiveness.

Sport is an intense microcosm of life. It generates passion, fosters belonging and identity, builds resilience and produces important role models. It is vital that the governance of sport prioritises integrity, fairness and a level playing fi eld under the law. B

EDITOR’S NOTE – CLARIFICATION ON EQUAL OPPORTUNITY COMMISSION’S RECOMMENDATIONS WITH REGARDS TO THE LEGAL PROFESSION CONDUCT COMMISSIONER’S ROLE

The May 2021 Bulletin contained an article about the report of the Equal Opportunity Commission (EOC) on its review into harassment in the legal profession.

That article said that the EOC’s report recommended the following changes to the offi ce of the Legal Profession Conduct Commissioner (LPCC) to “address the lack of engagement with existing complaint mechanisms”: • Expanding the current complaints mechanism within the LPCC to include two full-time investigative solicitors • Providing for a dedicated enquiries

offi cer within the LPCC, to be the fi rst port of call for victims seeking information and support, and to conciliate complaints made to the LPCC • Provide LPCC with powers to conduct compliance audits and issue practice management directions

The LPCC considers that the fi rst two dot points do not accurately refl ect the EOC’s recommendations about his offi ce.

In relation to the fi rst dot point, the LPCC says that the relevant recommendation (Recommendation 8) that referred to two full-time investigative solicitors related to his newly introduced confi dential enquiry line, not to his complaints mechanism generally.

In relation to the second dot point, the LPCC says that this recommendation related to the Equal Opportunity Commission, not the LPCC. Recommendation 11 of the EOC report was that the Attorney-General “creates and funds an additional ongoing position within the EOC for a Designated Enquiries Offi cer to take enquiries and conciliate matters relating to sexual harassment”. The LPCC notes that he would not generally conciliate complaints of that nature. B