tightening your grip will extinguish all light; but with each degree of distance, it doesn’t stand a chance.
The works of Homi Bhabha narrate the concept of nationhood through the analysis of literature. Anthropologists, such as Loring Danforth, have extended this to other cultural pursuits, such as sport. Danforth notes that ‘it is through narratives like these that Australians contest the nature of Australian national identity and negotiate precisely what it means to be Australian’. Danforth is firmly of the belief that soccer is one such sport, and has contributed heavily to the discourse surrounding Australian national identity.
For decades, power within Australian soccer resided with individual clubs, a situation fostered by an incompetent and dysfunctional central organisation.
From the outside looking in, these clubs were synonymous with failure. Many of them no longer exist due to financial insolvency. However, a certain revisionist element has perpetuated the notion that these clubs served little purpose beyond the ethnic communities they purported to represent.
Granted, the clubs are monoliths within these specific communities. South Melbourne Hellas and Sydney Olympic are backed by the Greek community; Melbourne Knights and Sydney United the Croatian; Marconi Stallions, Adelaide City, and before their demise, Brunswick Juventus, the Italian. The list could go on and on.
These clubs gave post-war migrants a chance, for two hours on a Saturday at least, to not be subjected to assimilatory pressures. But their role in imparting football sophistication to a few generations of athletes goes perennially unappreciated by the nouveau of the sport.
Arguably the best Socceroos team in history played at the 2006 World Cup. With the exception of a couple of members, every player in that squad cut his teeth in a youth system that was administered by these clubs.
Marco Bresciano played his junior days with his Italian brethren in Bulleen; his midfield work-rate the product of that standard Italian professionalism and simplicity. Mark Viduka, the best of Australia’s international exports, plied his trade with the Croatians in Sunshine and it is plain to see that the brute physicality mixed with sublime skill, which was central to his game, could never have been taught without that Balkan influence.
The contribution to this sport from these various communities is real and tangible.
Over time the influence of these clubs has been removed from them, and centralised into a single structure that would become responsible for youth development and coaching. Along with the power shift away from these clubs, there has been a concerted effort to rid the game of any ties to ethnicity, supplementing Danforth’s view that ‘Australian soccer…is a source for ethnic and transnational narratives’.
The efforts to de-ethnicise the game started in the late nineties and have continued since. Teams such as Preston Makedonia had to change their names to much more ‘mainstream friendly’ monikers; in their case ‘Lions’. South Melbourne’s original plan to change from ‘Hellas’ to ‘Lakers’ actually caused legal issues with a certain basketball team based out of Los Angeles.
Danforth notes that there are three competing narratives within Australian society; a white English-speaking society, a quasi-multicultural stratum where only specific types of diversity are tolerated and finally a truly post-national society. Soccer in this country is always at the fault lines between these notions.
When Frank Lowy saved the sport in the mid-noughties, one of the central tenets of the revolution was to continue to ‘bring football into the mainstream’. This required clubs that were representative of a broad cross section of people, not just specific groups within society. Out went the stalwarts of old soccer, and in came the fresh guard of new football.
Even though cosmetic, the name of the sport changed. The term ‘soccer’ carries an unfairly negative connotation. ‘Football’ means mainstream, global acceptance from not only the rest of the world, but also the Anglo-Celtic portion of Australian society. The game was not only for ‘sheilas’, ‘wogs’ and ‘poofters’ anymore.
The regime change has been overwhelmingly positive. In the death throes of the old Soccer Australia, players were not getting paid, with many refusing to play for their national team in order to take offers from their ancestral homes. Support for the game was the bastion of those with a specific cultural affinity with the sport. Frank Lowy ushered in an era where a genuine appreciation of the game has been given a fair opportunity to prosper.
Unfortunately, a myth that there was very little to the old way has been allowed to pervade the sporting landscape. For decades these clubs took the lead in creating our golden generation of stars, who have graced pitches in the very best leagues in the world.
The injustice goes to the heart of what Danforth is at odds with. If Australia sees itself as a place that accepts ‘genuine cultural diversity and hybridity’, then trying to banish history is not a good place to start. In order to go forward it is absolutely imperative to be proud of what was achieved in the past two decades. The most successful ‘new football’ clubs have been the ones that embraced the great elements of ‘old soccer’.
The FFA masterplan is laid out in a document called the National Football Curriculum, a complete and thorough overhaul of the youth and development structures from the very smallest clubs to the national side.
It is an impressive document, complete with coaching drills and diagrams. The document notes that we must try and adhere to the style of play created by footballing luminaries like the Netherlands, Spain and Germany. An emphasis on short-passing and possession football is exalted as the key to unlock a very lucrative door.
On the face of it, yes, this document accepts the truth. The truth that in order to compete globally and be taken seriously, Australia must completely change how the game is structured, from grassroots pathways to the elite level.
But must the process be centralised, with little or no room for interpretation? Must it come at the expense of clubs that have taught the game to children for up to eight decades, a few of whom became household names in Europe? How many World Cups have been won by the Dutch? It is homogeneity with no tolerance for cultural hybridity. It is not Australian.
One of the pieces of this puzzle is the implementation of a second-tier league known as the National Premier League. Each of the existing state-based top-tier leagues will be fused under one banner, with extremely expensive and strict criteria for competing consortia. These include junior structures, recruiting zones and salary caps.
In Victoria, the implementation of the NPL has gone beyond the boardroom and is now in the courts. Many of Victoria’s most powerful and historic clubs have commenced legal proceedings against the FFV, the governing body in Victoria. Very recently an injunction was granted against headquarters from going ahead with the NPL in 2014.
The disputes revolve around the zoning provisions of the licence agreements. The clubs feel that the proposal simply creates shell organisations designed to facilitate a place for sub-elite players to play, removing any sense of identity and autonomy that have come at the expense of decades of hard work. Further, as the competition will be made up of only one club per zone in Victoria, many deserving and historic clubs will miss out on a place, whilst some of those allowed to participate are perhaps undeserving.
In short, it is a quagmire that has been moved to the Supreme Court of Victoria, awaiting resolution. And it is not good for the game.
Many see it as the last battle between old soccer and new football; a fight that is perhaps born not of strictly legal principles, but a feeling that a group of people may be losing what they claim is their game.
This may paint a simplistic picture of the situation, but it is somewhat valid. The disrespect has run its course, and a much more consultative approach must be adopted in order for stakeholders to walk away content.
For many of them, ‘the defining feature of the Australian nation is its heterogeneity and diversity.’ They know our history of participation in the beautiful game is a testament to that.
As a class of person the athlete is seen as possessing an invincibility that protects them from the perils of the rest of society. However, the athlete is extremely vulnerable; from unemployment and financial difficulty after retirement to severe risk of injury.
In response to this player advocates and unions have made player welfare subject to social awareness. It is an imperative that the law of torts advances social norms in relation to the protection of the player in the course of his or her employment and enjoyment.
The National Football League (NFL) in the United States is leading the way with their response to their athletes suffering from Chronic Traumatic Encephalopathy (CTE) by changing their rules and looking after those who have retired and suffering. It is suspected that this condition, caused by unsafe practices on the football field, has contributed to tragic cases of suicide. The welfare of the athlete outside of his or her ability is now a social norm in the United States.
Unfortunately, in Australia despite being an increasing norm, there is little accountability. If a sporting organisation fails, in light of all medical information, to adequately monitor the laws of a sport in order to protect players there is little recourse in the law of tort. It seems that sporting organisations are immune from liability in tort in respect of injury arising from negligence. The decision did not, and does not, reflect the current prevailing social norm in regards to player welfare.
Agar v Hyde: Background
In August 1986 Luke Douglas Hyde was injured playing rugby football, for the Warringah Rugby Club Ltd in a first grade Colts game. During a scrum , a particularly dangerous aspect of the sport, Hyde’s ‘neck was positioned at such an angle that when it was struck by the force then exerted by the opposing players, his neck was broken and he suffered severe spinal injuries’. He alleged that ‘he suffered the injury when the forwards of the opposing team charged his pack, in breach of the rugby laws’.
Mr Hyde brought action against a significant number of individuals, including the International Rugby Football Board (IRFB), along with Member Unions of said board, which included the Australian Rugby Union (ARU). Mr Hyde claimed that as custodians of the laws of the game his injury ‘was caused by the negligence of the persons responsible for the conduct of the Council of the IRFB’.
Justice Grove, at first instance in the New South Wales Supreme Court, came to the conclusion that Hyde ‘did not have a good arguable case against the individual members of the IRFB for three main reasons’:
• No duty of care.
• No precedent of such cases indicated that community standards on the issue still lie in the negative.
Mr Hyde appealed to the New South Wales Court of Appeal. The Court (Spiegelman CJ, Mason P and Stein JA) unanimously upheld the appeal from Mr Hyde, stating that there was a good arguable case and that they were ‘reluctant to remove the IRFB defendants whilst the issue remained open’.
Agar v Hyde: High Court Decision
The raft of defendants included in Mr Hyde’s action appealed this decision to the High Court of Australia. At this point, Mr Hyde had formulated his duty of care assertion to ‘a duty to take reasonable care in monitoring the operation of the rules of the game to avoid the risk of unnecessary harm to players’ and ‘a duty to take reasonable care to ensure that the rules did not provide for circumstances where risks of serious injury were taken unnecessarily’. The breach of this duty was based on the failure to change the rules in order to take the risk out of the scrum phase of play.
The following broad reasons were said to be significant to the High Court in the decision to find no good arguable case for Mr Hyde:
• The act-omission distinction.
• Control, proximity and indeterminate liability.
• Voluntariness, risk, autonomy and consent.
• Voluntary participation in sporting administration.
• Content and effect of the duty of care.
• The direction of tort law to a more autonomous outlook.
Agar v Hyde: A Critique
The fluid nature between the finding of a duty and the reliance on salient features is important when considering the shortcomings associated with the reasoning in this case. Due to the fact that this particular duty relationship was novel, an incremental method of trying to ascertain the specific duty is necessary. Even though not determinative of a duty, salient features nevertheless are an indication that one may be deemed to exist.
The High Court in Agar felt there was no good arguable case due to the plaintiffs alleging to what amounted to an omission by the IRFB. Justice Callinan noted that the common law ‘does not ordinarily impose a duty on a person to take action where no positive conduct of that person has created a risk of injury to another’. However, naturally if a sporting body has ‘a duty to create safe rules for a sport, then there is also a duty to keep safety under ongoing review’. The issue is whether that within the scope of this duty is ‘maintaining the rules of a sport’. They are not independent, the keystone to the notion that there can be no imposition of a positive duty as noted by Justice Brennan.
President Allsopp of the New South Wales Court of Appeal noted two potential salient features that go a long way in showing that the decision can be interpreted as somewhat flawed; ‘the degree and nature of control able to be exercised by the defendant to avoid harm’ and ‘knowledge by the defendant that the conduct will cause harm to the plaintiff’.
Put simply, the IRFB and Member Unions were in a definite position to alter the rules in order to make the harmful activity safer, both in terms of control and based on the groundswell of knowledge at the time surrounding the injuries of the type suffered by Mr Hyde.
The argument that ‘there were many intervening levels of administrative decision-makers between the Board and those who organised the game’ is factually false. The IRFB themselves have noted, that they have definitive control over the ‘framing and interpreting the Laws of the Game’. These laws ‘shall be binding and uniformly observed in all matches’.
Not only did the IRFB have full control at the time of Mr Hyde’s incident, they cruelly administered the changes required to the scrum formation in order to make it much safer. In 1988, the crouch-touch-pause-engage (CTPE) sequence was introduced specifically to reduce the number of injuries of the nature that was suffered by Mr Hyde.
Moreover the IRFB had the medical knowledge available that scrum forwards were getting injured due to improper conduct during the sequence of play. South African physician Mr Alan T Scher and English physician Mr John Silver administered reports that noted the increase in injuries to the battering rams in a scrum. Silver specifically noted that, ‘between 1982 and 1987 seven players sustained injuries in scrums. All were front row forwards…it would appear that the method of injury in unchanged and players are still breaking their necks and are still at risk in the front row’. Silver also notes that ‘collapse of the scrum may be due to a discrepancy of strength and skill or may be deliberate’. This discrepancy was legislated out of the game after the incidents to Mr Hyde. It is therefore difficult to comprehend how the High Court found that it was beyond belief that a duty was owed from the IRFB.
Analogy with Product Liability
A major critic of the decision has been Opie, who has advanced the theory that decision was inconsistent with the findings in tort related to product liability.
The risk undertaken by Mr Hyde was categorised as inherent, which means it ‘can materialise even though everything is carried out to specification’. Sports law, at the time of the decision, mainly dealt with non-inherent outcomes of dangerous activity. The High Court used this to distinguish the case from other findings of negligence.
However, Opie argues that by categorising the risk undertaken by Mr Hyde as inherent the court has effectively noted that the game was defective, in much the same way as a product would be classed as such if it was an instance ‘where output accords to specification, but the specification itself is inherently and unreasonably dangerous’.
Therefore the analogy can be drawn that Mr Hyde portrayed the game of rugby union, specifically the formation of the scrum, as defectively designed, and thus as Opie has noted ‘the prospect of imposing liability for failure to amend rules to avoid at least some risks does not appeal to be as “absurd” in the abstract as the High Court seems to suggest’.
Just as it is universally accepted that ‘the manufacturers of products and providers of services must take reasonable care in giving warnings of dangers and instruction for use of their products and services’ and thus owe consumers a duty of care, then it is not beyond the realms of the common law to enforce that the IRFB and sports federations have a general duty to safely monitor these laws in order to safeguard the safety of players. Sports-bodies around the world have found themselves in the position to change the laws for one reason or another , and in this instance the IRFB failed to do so even though there was a known issue relating to the welfare of their athletes.
Analogous Case Law
The decision in Woods also highlights the issue of risk and whether sporting federations should eliminate these inherent defections in sport in order to protect athletes when they are at their most vulnerable. What is most unfortunate is that the justification of this protection was in the minority.
Justice Kirby dismissed the running differential that had been established in relation to risk allocation during sporting contests. Instead of basing the difference between inherent and non-inherent on the specifications of the actual body of law related to the sport, the key difference rests with the notion that ‘any activity that cannot be eliminated by the exercise of reasonable foresight and care’ are those risks that are truly inherent. If the IRFB were accurate with their foresight it would have been more than reasonable to assume that the risk to front row forwards, if the scrum formation was not administered carefully, was high. According to Kirby J’s test, Mr Hyde undertook a non-inherent risk. Consistent with other case law, sporting authorities have been found liable for not adequately protecting against non-inherent risks.
Similar occurrences have occurred in Britain, where judgements have found scope for potential liability for sporting federations without creating an overarching duty. It leaves the reluctance of the High Court in Agar v Hyde to at least find a duty an extremely puzzling decision.
Whether amateur or professional, athletes are not superhuman. They are susceptible to the same pitfalls and hardships that befall other members of society, exacerbated by high concentrations of wealth and the intensity of their profession. Put simply, they are vulnerable.
The decision in Agar v Hyde has rendered the good work of player advocates void. The common law in Australia must reflect the continued social awareness to debilitating injuries and ongoing health concerns of athletes, whether professional or amateur. It must do so by making sporting organisations much more accountable in their interaction with their most prized commodity and forcing their hand to make a safer environment for professionals and amateurs to ply their trade.
In finding that the IRFB did not owe Mr Hyde a duty of care to maintain the safety of the laws of rugby, despite medical evidence and direct control over the situation, the High Court completed, and has perpetuated, a great disservice to the protection of athletes who are simply earning a living or feeding a passion. It must be rectified.
Education is the silver bullet. Education is everything. We don’t need little changes, we need gigantic, monumental changes. Schools should be palaces. The competition for the best teachers should be fierce. They should be making six-figure salaries. Schools should be incredibly expensive for government and absolutely free of charge to its citizens, just like national defense.
Proximity is a real tool that aids social justice. Without individuals who feel a sense of proximity to the struggles of asylum seekers, who will point out the obvious injustice in labelling them ‘illegals’? Individuals who are proximate to those who struggle with homophobia will naturally stand up for equality. The personal resonation with these individual battles is what drives empathy.
One could say the abstract nature of our discipline is not conducive to any sense of proximity. However, planning law bucks the trend. It dictates where we can work, live and play.
We are also proximate to where we grew up. Memories are made and relationships are forged within our hometowns, and despite moving away this sense of belonging never quite evaporates. My family have been apart of the furniture of this particular place for around five decades. The ties are strong and proud, and I am not immune to it.
Late in 2012, a multinational restaurant chain proposed to develop a vacant plot of land in my hometown, around an hour south of the city. I studied the plans and immediately had issues with it. Not only was it close to a pristine stretch of beach and foreshore that could be adversely affected by litter, but also it was not well thought-out in terms of traffic, amenity and overall planning objectives.
Planning schemes are primarily a State statutory regime that designates zoning; which developments are suitable for particular areas of a locale. However, local planning policies, which are contained within the same broad document, provide particular objectives that are inherent to the relevant area. As this was a bayside suburb, areas such as the beach, traffic and the housing shortage were integral considerations for the local council as it made it’s decision.
On the face of the zoning requirements laid down by the State Government, the development seemed strong. However on the basis of the local policy framework there were shortfalls. Myself and hundreds of other concerned residents made these known to council.
After a few weeks, a community organisation was established; Seaford Community Rejects Another McDonald’s (SCRAM).
The first meeting of SCRAM was attended by hundreds of residents. The concerns were genuine. The community was aghast that the potential to damage a natural asset was real. Neighbours of the proposed development were concerned with noise and air pollution. Many were also wary of the potential anti-social behaviour that a 24-hour convenience store could bring. Young families were concerned that the already disastrous traffic in the area could pose a real safety threat.
After having the particulars explained at a council meeting, it was put to us that if the council voted down the proposal it would be most likely the developers would approach VCAT for a resolution. Short on funds and expertise, this proposition frightened many.
Instead of letting resting on their laurels, the industrious people in the community got to work. The organisation was formalised and regular meetings took place. SCRAM established contacts with the local and national media and consistently met with the local State MP and statutory planner in order to gain an understanding of the process and to build up an arsenal of political support. My role was to cast an eye over potential legal arguments, just in case the appeals process led to VCAT.
Eventually the council did what it was always going to do, and voted down the proposal. It did so on the recommendation of an influential statutory authority, and more than likely the political pressure of hundreds of hard working ordinary citizens.
After a few months of waiting, the developers decided not to appeal. It was a real victory.
I’m sure without a sense of proximity no one would have bothered to point out the obvious shortfalls that were littered throughout the development proposal. This fight helped ordinary residents go about their daily life uninhibited, potentially saved important environmental landscapes and made it known that the law is there to protect the interests of everyone, not just those with deep pockets.
One does not have to be extraordinary to stand up on principal. One only needs to care.
1. push yourself to get up before the rest of the world - start with 7am, then 6am, then 5:30am. go to the nearest hill with a big coat and a scarf and watch the sun rise.
2. push yourself to fall asleep earlier - start with 11pm, then 10pm, then 9pm. wake up in the morning feeling re-energized and comfortable.
3. erase processed food from your diet. start with no lollies, chips, biscuits, then erase pasta, rice, cereal, then bread. use the rule that if a child couldn’t identify what was in it, you don’t eat it.
4. get into the habit of cooking yourself a beautiful breakfast. fry tomatoes and mushrooms in real butter and garlic, fry an egg, slice up a fresh avocado and squirt way too much lemon on it. sit and eat it and do nothing else.
5. stretch. start by reaching for the sky as hard as you can, then trying to touch your toes. roll your head. stretch your fingers. stretch everything.
6. buy a 1L water bottle. start with pushing yourself to drink the whole thing in a day, then try drinking it twice.
7. buy a beautiful diary and a beautiful black pen. write down everything you do, including dinner dates, appointments, assignments, coffees, what you need to do that day. no detail is too small.
8. strip your bed of your sheets and empty your underwear draw into the washing machine. put a massive scoop of scented fabric softener in there and wash. make your bed in full.
9. organise your room. fold all your clothes (and bag what you don’t want), clean your mirror, your laptop, vacuum the floor. light a beautiful candle.
10. have a luxurious shower with your favourite music playing. wash your hair, scrub your body, brush your teeth. lather your whole body in moisturiser, get familiar with the part between your toes, your inner thighs, the back of your neck.
11. push yourself to go for a walk. take your headphones, go to the beach and walk. smile at strangers walking the other way and be surprised how many smile back. bring your dog and observe the dog’s behaviour. realise you can learn from your dog.
12. message old friends with personal jokes. reminisce. suggest a catch up soon, even if you don’t follow through. push yourself to follow through.
14. think long and hard about what interests you. crime? sex? boarding school? long-forgotten romance etiquette? find a book about it and read it. there is a book about literally everything.
15. become the person you would ideally fall in love with. let cars merge into your lane when driving. pay double for parking tickets and leave a second one in the machine. stick your tongue out at babies. compliment people on their cute clothes. challenge yourself to not ridicule anyone for a whole day. then two. then a week. walk with a straight posture. look people in the eye. ask people about their story. talk to acquaintances so they become friends.
16. lie in the sunshine. daydream about the life you would lead if failure wasn’t a thing. open your eyes. take small steps to make it happen for you.
There are two ways you can go.
It’s a crushing feeling when you find out that the path you have always wanted to walk down is a little harder than you expected. Not only that, but when the path is so cold and desolate that the passion, which once burned ever so bright, is flickering.
The goal is there. However the process is arduous, lonely and tough to reconcile with a life filled with shared experiences, intense relationships and vast interests.
I know what I have to do. Whether I have what it takes is yet to be seen.
I did not think it was going to be like this and I’m not sure whether I want the reincarnation.
Died of a stroke
Tories always wanted
Marg to be a bloke
Her middle name was Hilda
She hated Argentina
And the workers yelled
‘I hope it’s not a joke!’
I don’t have a girlfriend. But I do know a woman who’d be mad at me for saying that.
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