Essendon v ASADA: The rule of law and role of legal fairness
At the heart of claims by Essendon Football Club and James Hird against the Australian Sports Anti-Doping Authority (ASADA) is a perceived lack of procedural fairness.
Yet fairness is not a one-way street.
In the Australian case of Kioa v West procedural fairness is explained in the following way:
… the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …”
See Kioa v West  HCA 81; (1985) 159 CLR 550
The Federal Court will have to consider many factors as it determines whether the ASADA CEO had statutory power to pursue its joint investigation with the AFL, and whether he or she was in tune with the flexible obligation to adopt fair procedures. Fairness to players, athletes, support personnel and the Essendon Football club is not the only kind, though.
Fairness to the investigator means that he or she should be permitted to use sufficiently effective procedures to perform his or her investigative function, especially when procedural fairness to the subjects is codified and guaranteed in later stages of the administrative proceeding.
See Norwest Holst Ltd. V Secretary of State For Trade  Ch at 229
How then, should procedural fairness be assessed when multiple protagonists are involved?
Right to remain silent / Privilege against self-incrimination
One of the most important rules of fairness, usually in a criminal investigation, is the right to silence or the privilege against self-incrimination. A person may refuse to answer questions on the basis they might incriminate him or her (noting that some jurisdictions in Australia have abrogated this principle by legislation, at least to a degree).
James Hird claims that ASADA denied him access to the privilege against self-incrimination. However, the ASADA process is not a criminal prosecution where one’s liberty is at stake, although its findings can cause reputational harm. Can the privilege against self-incrimination therefore apply?
In a legal opinion published with a draft of the WADA Code, the well-known sports arbitrator Prof. Gabrielle Kaufmann – Kohler noted that “the procedural guarantees that human rights instruments afford in criminal matters [such as the right to refuse to testify for fear of self-incrimination] are not directly applicable in doping adjudication proceedings” (at para 99).
For more information, see Prof. Gabrielle Kaufmann-Kohler and Dr. Antonio Rigotti “Legal Opinion on the Conformity of the 2007 Draft World-Anti Doping Code with the Fundamental Rights of Athletes” viewed at http://www.wada-ama.org
In Prof. Kaufmann – Kohler’s opinion a rule encouraging cooperation with the authorities does not violate the right to remain silent per se. Whether a violation actually occurs depends on the degree of compulsion of the rule encouraging disclosure. A violation can occur if the rule destroys the very essence of the right to remain silent, taking into account the severity of the penalty and any judicial safeguards set up to ensure fairness (see Kaufmann – Kohler at para 104).
Fairness to athletes and support persons suspected of ADRVs is ensured by Section 14 of the ASADA Act. According to the Explanatory Memorandum,
“This clause is intended to ensure, by setting out a minimum set of basic rights, that athletes and support persons are treated fairly and in accordance with principles of natural justice”.
See ASADA Bill 2005 Explanatory Memorandum at p. 10
In general, these rights are implemented in the NAD Scheme downstream of the investigation stage. Athletes and support persons do not have an express statutory right to remain silent during an investigation under the NAD Scheme and their rights to be treated fairly in accordance with principles of natural justice during the investigation stage are not codified in the division which deals with the ASADA CEO’s investigative power.
According to the leading English case of Selvarajan v Race Relations Board  1 All E.R. 13 (C.A.) “The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it.” (per Lord Denning J)
This fundamental rule is implemented in the NAD Scheme downstream of the investigation stage when a so-called show-cause notice is issued to a player and he has a chance to make his own submission.
See for example NAD Scheme clause 4.07A
In other words, the concept of fair treatment might well be limited to enabling a player to explain his position, and may not extend to the right of that player to claim the privilege against self-incrimination.
‘NAD Scheme personal information’ is defined by reference to the Privacy Act. It is basically information or an opinion about an identified individual, or an individual who is reasonably identifiable.
See Privacy Act (Cth) Section 6
The Privacy Act was enacted to ensure that information about individuals would be dealt with fairly. Again, however, the regime does not go all one way. Disclosure of personal information is permitted in particular circumstances.
The allegation in the present case is that the joint investigation between ASADA and the AFL involved disclosure of NAD Scheme personal information – ie. information about identified individuals – to the AFL for its purposes which should have been used by ASADA only for its purposes.
However, if such disclosures occurred, disclosures ‘for a secondary purpose’ appear to be permissible in certain circumstance under the Privacy Act. Under Australian Privacy Principle 6:
“6.1 If an [agency or organisation] holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless: (a) the individual has consented to the use or disclosure of the information; or (b) subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.
6.2 This subclause applies in relation to the use or disclosure of personal information about an individual if: (a) the individual would reasonably expect the [agency or organisation] to use or disclose the information for the secondary purpose and the secondary purpose is: (i) if the information is sensitive information—directly related to the primary purpose; or (ii) if the information is not sensitive information—related to the primary purpose.”
Here, there appears to be a permissible channel for ASADA to disclose NAD Scheme personal information to the AFL for it to use in the administration of its Anti-Doping Code and vice versa, particularly if the information was gathered by both agency/organisation in the course of a joint investigation of ADRVs.
The ultra vires question
A fundamental question in the litigation is whether it was within the ASADA CEO’s statutory power to conduct a joint investigation with the AFL. The relevant power is stated in Clause 3.27(1) of the NAD Scheme:
“For paragraph 13(1)(f) of the Act, the CEO is authorised to investigate possible anti-doping rule violations that may have been committed by athletes or support persons.” (emphasis added)
This power is therefore focused on a certain object, which is supposed to be pursued in such a manner that the investigation should result in information and evidence which enables determinations and findings to be made independently downstream. The possibility of a joint investigation is not expressly excluded.
In the context of the NAD Scheme, the investigation must be able to produce sufficient information or evidence for the ASADA CEO to determine whether any further action is warranted (NAD Scheme 4.07A) and if necessary for an ADRV Panel to make a finding (ASADA Act s.13(1)(h)). If a finding is made then it may be published with or without details and sanctions may follow – the purpose of publication may also be to clear a suspect’s name: ASADA Bill 2005 Memorandum of Explanation at page 10.
The World Anti-Doping Code also requires that a role of [the ASADA CEO] is: “To vigorously pursue all potential anti-doping rule violations within its jurisdiction including investigation into whether Athlete Support Personnel or other Persons may have been involved in each case of doping.” (see WADC 20.5)
Any questions of “fairness” in this context, must therefore be viewed against the nature of the powers given to the ASADA CEO, and the object of investigating possible anti-doping violations with vigour.
The investigation procedure
A fundamental common law principle is that a government investigator is the ‘master of its own procedure’. An important feature of this principle is that, during the investigation stage, the statutory investigator need not do everything by itself. It can employ others to do all of the preliminary work as long as it comes to its own decision or makes its own report.
See Selvarajan v Race Relations Board  1 All E.R. 13 (C.A.) per Lord Denning MR
Note how Clause 3.27(2) of the NAD Scheme states: ‘An investigation must comply, or substantially comply…’ with the procedures mentioned in the WADA Code, the International Standards and the Australian Government Investigation Standards (“AGIS”).
This is interesting wording because it looks at the investigation objectively and asks ‘has the investigation complied, or substantially complied…’ with the procedures? Compare this with a possible alternative formulation ‘The ASADA CEO must comply, or substantially comply…’
In this clause the legislation does not assume that the investigation comprised only acts done by the ASADA CEO. What the legislation cares about is that the investigation, from the perspective of its completed whole, complies, or substantially complies with the procedures mentioned in Clause 3.27(2) of the NAD Scheme.
There is nothing in the WADA Code, the International Standards or AGIS prohibiting a joint investigation in principle. The AGIS contemplate the formation of joint agency relationships (albeit between different government agencies) on the basis of investigation-specific Joint-Agency Agreements (AGIS clause 1.6).
The AGIS also require consideration to be taken during the planning phase of the investigation of “the structure of the investigation team including reporting lines,’ and the ‘need for specialist assistance from internal or external experts (IT, accountants, lawyers, subject matter experts etc.)”: See para 3.3 ‘Planning Phase’, eighth dot point.
In an investigation of a large number of AFL players and their support persons there is arguably very legitimate scope for the specialist assistance / subject matter expertise of the AFL, even as an external expert. This is particularly so given that the AFL administers its own anti-doping code.
Importantly, clause 3.27(3) states that a failure to comply with the procedures mentioned in the WADA Code, the International Standards and AGIS does not affect the validity of the investigation.
Using compulsory powers
The ASADA legislation was amended in 2013 so that now the ASADA CEO is expressly authorised to require attendance at an interview and to require production of documents and things by an investigation subject (NAD Scheme Division 3.4B). These provisions didn’t exist in February – August 2013 during ASADA’s joint investigation with the AFL.
Instead, the ASADA CEO relied on the power of the AFL under its Anti-Doping Code to compel players, support persons and others to cooperate in the investigation, including requiring them to attend interviews and to produce documents and things (such as text messages stored on their mobile telephones).
The Federal Court has been asked to find that the ASADA CEO did not have the power under the NAD Scheme to adopt those more rigorous investigative powers of the AFL in its investigation through the mechanism of the joint investigation. Underpinning this is the implication that ASADA’s attempt to free-ride off the AFL’s power was “unfair”.
However, there is no doubt that the ASADA CEO’s investigation procedure should be vigorous and that a structure should be adopted that is most effective to achieve this.
In a recent Canadian case, the subject of an investigation refused to attend an interview claiming certain legislation did not authorise the investigator to require his attendance at oral interviews.
See Wise v. Law Society of Upper Canada 2010 ONSC 1937
In that case, the investigation power was stated as a power to ‘inquire and examine’. Finding the investigator was entitled to compel his attendance, the court held that “it would take clear words” from the legislature to deprive the investigator of the powers necessary to carry out an investigation in the public interest. The same principle may apply to the interpretation of ‘authorised to investigate’ under NAD Scheme Clause 3. 27(1).
None of the above is to suggest that procedural fairness does not, or should not, have a role to play in any statutorily based investigation. However, the concept is clearly a two-way street. Procedural fairness is to be interpreted flexibly and with the interests of multiple stakeholders in mind, including those charged with the difficult task of investigation whether anti-doping rule violations have occurred.
James Rowland is an international arbitration counsel who enjoys AFL football and lives in Warsaw.
One Response to “Essendon v ASADA: The rule of law and role of legal fairness”
Thanks for this clear and very informative piece