THE AFL wishes to advise it has today written to clubs outlining changes made to the AFL Tribunal Guidelines approved by the AFL Commission and effective 28 February 2023.
Executive General Manager Football Operations, Legal and Integrity Andrew Dillon said the amendments to the 2023 AFL Tribunal Guidelines supported the AFL's key priorities including the protection of brain health.
"We continue to make changes that ensure the AFL's commitment to protect the head of players is reinforced by the AFL tribunal," Dillon said.
Further amendments made to the tribunal process make it clear that, while the tribunal must accord with natural justice in its operation, the tribunal's processes should be fair and efficient with minimal formality, acknowledging that the Tribunal is not conducting court proceedings."
These changes apply for the upcoming 2023 Toyota AFL Premiership Season. A summary of the substantive changes to the AFL Tribunal Guidelines is set out below.
Substantive amendments
1. Intentional Contact with an Umpire
The Tribunal Guidelines did not previously expressly provide that a player may be found guilty of Intentional Contact with an Umpire by pushing or holding an opponent into an umpire or their direct path (i.e. where the contact is caused by the player's opponent, not the player themselves). The Guidelines have been amended to provide that a Player may be found guilty of Intentional Contact with an Umpire for such conduct.
Further, the Tribunal Guidelines previously included a deeming provision which provided that all "Forceful" contact with an umpire will be deemed to be Intentional and constitute a Direct Tribunal Offence. However, there may be circumstances where forceful contact with an Umpire by a player is genuinely incidental, and where it may not be appropriate for such conduct to be referred directly to the Tribunal. The Tribunal Guidelines have been amended to reflect that where contact with an Umpire is forceful but only incidental (and not otherwise disrespectful, demonstrative or aggressive), the MRO has the discretion to not charge the Player with Intentional Contact with an Umpire (resulting in a direct referral to the Tribunal) and instead charge the Player with Careless Contact with an Umpire.
2. Forceful Front-On Contact
The Tribunal Guidelines in respect of Forceful Front-On Contact previously provided that a player will be guilty of Forceful Front-On Contact (as a form of Rough Conduct) where the player makes forceful contact to an opponent from front-on when the opponent has their head down over the ball.
However, there are circumstances where a player’s head may be over the ball, but the player may still be looking up and so their head is not “down”. In this context the victim player is still vulnerable, and that contact where this occurs, which is otherwise Careless (or Intentional), should still be graded as Forceful Front-On Contact.
The Tribunal Guidelines have been amended to provide that, in respect of Forceful Front-On Contact, it is not necessary for a Player’s head to be “down” over the ball – it is only necessary for the Player’s head to be over the ball.
3. Potential to cause injury for Body Contact
The Tribunal Guidelines previously provided that where contact is both High and to the Body, the MRO will classify the contact as High even in circumstances where the Body contact is significantly greater than the High contact.
The Tribunal Guidelines have been amended to provide that the MRO has the discretion to grade an incident as Body contact where the impact to the Body is more significant than the High contact (i.e. where the High contact is only glancing but significant Body contact is made which would result in a more significant sanction).
4. Striking with an open hand
Consistent with the approach taken by the MRO in previous years, which has been upheld at the Tribunal, the Tribunal Guidelines have been updated to specify a strike can occur with an open hand (as opposed to a closed fist).
5. Changes to fixed financial sanctions
Amendments to the Fixed Financial Sanctions regime in the Tribunal Guidelines have been made to provide further clarity to Clubs as follows:
- Wrestling and Engaging in a Melee: Previously there was no definition for ‘Wrestling’ in the Tribunal Guidelines. There was a definition of ‘Engaging in a Melee’, but it required an incident involving three or more Players or Officials. Other than the number of participants, the definition of ‘Engaging in a Melee’ was consistent with how the MRO has charged ‘Wrestling’ incidents. The two offences were also considered together for the purpose of determining whether conduct constitutes a first or subsequent offence. The Tribunal Guidelines now reflect that there is one “unified” offence for both Wrestling and Engaging in a Melee without the requirement to have at least three persons involved.
- Unreasonable or Unnecessary Contact to the Eye Region: There was previously no guidance or definition for “Eye Region”. The Tribunal Guidelines have been amended to define the ‘eye region’ as being ‘in the vicinity of the eye socket’.
6. Fines for Low Level Classifiable Offences
Previously, where a player committed multiple low-level Classifiable Offences within the one season, each of which attracted a fine, the fine for the second, third and subsequent offences was
increased. For fixed financial sanctions, fine amounts also increase where a player has committed the same offence more than once, but offences that have been committed by a player in the past two years (i.e. the period commencing in the same round two seasons previous) are taken into account rather than just those offences in the same season. In respect of AFLW, the AFL will communicate with Clubs ahead of AFLW Season 8 any changes to the fine structure currently included in the AFLW Regulations – Reportable Offences.
For consistency, the two-year period that previously applied to fixed financial sanctions only, now applies to all offences that attract a fine (i.e. both low-level classifiable offences and fixed financial sanctions). This will provide greater deterrence to players that reoffend across multiple seasons.
The rolling two-year period will not commence until the first round of the 2023 season and so there will be no practical change until the 2024 season. This means that there will be no retrospective application of the rule (i.e. a player that is charged with a low-level classifiable offence in the 2023 season won’t have their 2021 and 2022 offences considered).
Procedural amendments
7. Acceptance of charges by 11am
The AFL Regulations previously provided that, in respect of Classifiable Offences and Fixed Financial Sanctions, a Club/player is required to submit a Notice of Early Plea by 11am on the first business day after notice of the charge in order to avoid the matter being automatically referred to the Tribunal. The AFL Regulations have been amended such that the consequence of a failure to comply with the 11am deadline is that a Club is deemed to have accepted the charge (i.e. that the current position is reversed). This gives both parties more certainty in being able to plan for Tribunal hearings and incentivises compliance with the 11am deadline. The AFL will still consider extensions of time in appropriate circumstances (for example, the impact of non-football working commitments of AFLW players).
8. Vision examples
The Tribunal Guidelines currently provide a list of prescribed video examples that the charged player and Tribunal Counsel may rely on before the Tribunal that are said to be comparable to the charged player’s conduct, or which are otherwise relevant. In 2022, the Tribunal Guidelines were amended to provide that Clubs/players and Tribunal Counsel may also rely on video examples of incidents charged by the MRO within the same season as the relevant incident, which are truly comparable to the incident in question (and where the example is not truly comparable, the Tribunal Chairperson can use his/her discretion to direct the Panel to disregard it). This has been expanded such that the Tribunal Guidelines now expressly permit Clubs or Tribunal Counsel to rely on incidents in the same year which were assessed by the MRO and did not result in a charge, but which were publicly explained in the MRO media release. Incidents that did not result in a charge but where the MRO has not commented, incidents which are not truly comparable, and incidents from previous years will still not be permitted to be included.
9. Determination on written submissions
The Tribunal Guidelines provide that Clubs/players may elect for challenges to financial sanctions to be decided by a single legally trained Tribunal Panel member on the basis of written submissions
only. Although this mechanism is appropriate for Tribunal hearings which do not involve additional evidence (other than vision examples), it is not appropriate that a matter be determined on the basis of written submissions where evidence is sought to be introduced that requires the Tribunal Jury Member to make a determination on whether leave should be granted to introduce that evidence and/or which requires interrogating (e.g. cross-examination where an individual intends to give a statement). In those circumstances, to ensure the evidence is properly interrogated it is appropriate that the matter be subject to a full hearing.
The AFL Regulations and Tribunal Guidelines have been amended to provide that that, in respect of a hearing on written submissions for a financial sanction, if a Club wishes to introduce evidence of a person that requires leave of the Chair, or other evidence that is not expressly contemplated by the Guidelines/Regulations, the Club must provide notice by 11am and the matter must be subject to a hearing by the Tribunal and not determined on written submissions unless the AFL otherwise consents to the matter being determined on written submissions.
10. Appeal Board Guidelines
There were previously no guidelines or procedures in place for the conduct of Appeal Board hearings. The Tribunal Guidelines have been updated to include a process for the conduct of an Appeal to provide the parties with certainty over the process and enable them to plan accordingly. The Appeal Board Chair will still retain discretion to conduct the hearing in such manner as they see fit.
11. Matters of procedural fairness
Various amendments have been made to the Tribunal Guidelines to make it clear that, while the AFL Regulations require the Tribunal to accord natural justice in its operation, the Tribunal’s processes should be fair and efficient with minimal formality, acknowledging that the Tribunal is not conducting court proceedings. These amendments include:
- replacing references to "Directions" with "Instructions" and "Jury" with "Panel";
- the General Instructions will be taken to have been read by the Tribunal Panel Members and the Chairperson and will be deemed to have been applied by the Tribunal in making their determination;
- the onus will be on Tribunal Counsel and the Player’s Advocate to raise in their submissions or otherwise (e.g. by putting a matter to a witness including the charged Player) any matters that they wish to be considered by the Tribunal that are not already expressly provided for in the Guidelines or Regulations;
- the failure to raise a specific matter in submissions or otherwise, save in exceptional circumstances, will not be a ground for appeal; and
- if the Player's Advocate or the Tribunal Counsel does not ask for instructions to be made/given on a specific matter, save in exceptional circumstances, the absence of instructions on that matter will not be a ground for appeal.
Proper consideration can be given to the matters before the Tribunal without specific directions being given by the Tribunal Chair with respect to matters that are already expressly dealt with in the AFL Regulations or Tribunal Guidelines. Specific directions should be reserved for matters of law or procedure that are not expressly dealt with in the AFL Regulations or Tribunal Guidelines. With the amendments outlined above, the AFL Regulations and Tribunal Guidelines now expressly reflect this position and better reflect the functioning of the Tribunal and the role of respective participants following structural and other changes made in 2022.
12. Error of law as a ground for appeal
One of the grounds of appeal for appealing a decision of the AFL Tribunal to the Appeal Board is that there was an error of law. Previously, an error of law that had no substantive impact on a Tribunal's reasoning or decision could be a ground for appeal. The AFL Regulations and Tribunal Guidelines have been amended to provide that the relevant ground of appeal is that there was an error of law that had a material impact on the Tribunal’s decision.
13. Evidence from an umpire
The Tribunal Guidelines now provide that if a Club/Player wants to call evidence from an umpire, contact may only be made through the MRO Secretary. Clubs are not permitted to reach out directly to umpires in relation to the Tribunal process without making such requests through the AFL.
