This post analyses the oral opening submissions from Day 1 of the trial between Essendon Football Club, James Hird and the Australian Sports Anti-Doping Authority (ASADA), in which Essendon and Hird have sought injunctions intended to cause the cessation of any disciplinary processes against 34 existing and former Essendon players for possible anti-doping rule violations.
The opening submissions are the high point of each party’s case. The evidence has not yet been tested, and the barristers have spent days fine-tuning the areas they wish to prioritise and de-emphasise. The judge also offers a few subtle signals in order to test the strength of these competing positions. With this in mind, let us evaluate how the parties want us to see their cases, and areas likely causing them pause for thought.
Do the Applicants speak with one voice?
Essendon and James Hird, have decided to speak with one voice. Their Counsel divided the task of opening submissions between rather than presenting their cases independently.
However, when pressed by Justice Middleton, Neil Young QC, representing Essendon, conceded that the Applicants’ interests were not entirely aligned. Mr Young acknowledged that Essendon could win, and James Hird lose, and vice versa, although he regarded this risk as “theoretical”.
Justice Middleton also pointed out that James Hird’s position might be different on the question of relief (on discretionary grounds) due to the nature of Hird’s settlement with the Australian Football League in 2013 in which he was sanctioned for his role in bringing the game into disrepute.
Neil Young QC further conceded that Essendon might stand in a different position to James Hird on the question of prejudice caused by any improper conduct by ASADA, because the team is a “major business in which prejudice to the players will rebound to the employer” and potentially “destroy its business”.
According to the Applicants, ASADA’s authority is of a very limited nature. Faced with the task of investigating possible anti doping rule violations by Essendon players, ASADA was obliged to act independently from the relevant sporting body (the AFL), and only to exercise its powers for the specific purpose of assessing whether such a violation occurred.
The Parliamentary materials leading to the inception of ASADA support this narrow construction, the Applicants contend, because ASADA was meant to stand separately from relevant sporting bodies and their potentially inconsistent interests.
Further, according to the Applicants, the independence of ASADA is highlighted by the strict constraints surrounding the protection of investigative information in the ASADA Act and NAD Scheme. Only entrusted persons, namely, certain ASADA staff members and Commonwealth employees may be entrusted with it. Indeed, the quarantined nature of ASADA’s function is illustrated, it was submitted, by the fact it can be a criminal offence for an entrusted person to disclose such investigative material to third parties.
Therefore, the Applicants submitted, ASADA acted outside the limited scope of its authority by:
- using the AFL’s much stronger compulsory powers (available under its own Code) to facilitate its investigation in what Neil Young described as a “faustian compact with the AFL”
- using the AFL as its personal secretariat in the course of its investigation, and directing the AFL in such activities
- breaching the confidentiality restrictions in the ASADA Act by sharing all investigative information with the AFL, when AFL personnel were not ‘entrusted persons’ under the ASADA Act
- sharing this information with the AFL, including the preparation and dissemination of the Interim Report, knowing that the AFL sought the information for separate disciplinary processes, namely, to resolve internal management issues within its own Code
Peter Hanks QC, representing James Hird, put the legal position a little differently, albeit with the same objective in mind. In response to questioning from Justice Middleton, Mr Hanks indicated that the Interim Report was said to be the “source of the invalidity”.
Mr Hanks contended that his client’s primary point was that ASADA lacked power to utilize the AFL’s compulsory powers (a “simple” ultra vires point, as he put it with a level of irony).
His client’s secondary point was that ASADA acted for an extraneous or improper purpose, namely, to exploit the AFL’s powers. “Improper” in this sense was not said to mean ‘bad faith’.
Only one point need succeed, based on this approach, for Mr Hanks’ client to win.
Neil Young QC’s tactical approach appears more integrated. The route to winning the case, based on this strategy, appears calculated to show a systemic failure of due process with the effect that ASADA’s investigation was tainted from the outset, and should be declared null and void in its totality. If this approach succeeds, it was submitted, there would be no room for discretion in the grant of relief in light of such a wholesale process failure.
In this respect, the Applicants’ submitted that ASADA’s alleged breach of confidentiality was relevant to the question of ultra vires, rather than being a stand alone point. There is a risk that ASADA could be found to have breached confidentiality by improperly disclosing investigative material. However, what would follow? Of itself this would be unlikely to justify the cessation of the investigation. This indicates why the Applicants are not adopting a piecemeal analysis but are going for a belts and braces approach.
What happened to the self-incrimination submission?
Missing from the Applicants’ submissions, but for a passing reference by the Applicants’ Counsel, was the alleged denial by ASADA of the right by James Hird or the affected players to refuse to answer questions on the grounds of self-incrimination.
This had the hallmarks of a forensic decision to ditch a bad point. Barristers tend to adopt the mantra when working up a brief to focus on one’s three best points. This appears to have missed the cut.
For one thing, even if the legal point is made good, focusing on the question of ‘self-incrimination’ in the context of James Hird in particular, might serve as an unhelpful distraction given that an attack on ASADA’s conduct is at the heart of the Applicants’ case.
Secondly, the self-incrimination point is by no means legally straightforward. Whether or not it is even available to those the subject of disciplinary proceedings (cf. criminal proceedings) would require the court to devote significant time to the issue.
Therefore, this point might die a quiet death, although it remains to be seen.
Senior counsel Tom Howe QC made an interesting strategic decision in the presentation of his opening. The question of relief was dealt with first, rather than last, likely to remind the court from the outset that any adverse outcome might lead to futile orders.
In keeping with this, the judge initiated a discussion in which Mr Howe confirmed that, even if the judge ordered that the Show Cause Notices be set aside, there would be nothing stopping ASADA from re-issuing them at once.
ASADA could also ask for any information from the AFL again, or rely on its new compulsory powers available since 1 August 2013.
Further, Mr Howe observed it would be improper for a court to intervene at this early stage given that no decision had yet been made adverse to the players. His point was directed to the prospect that it was premature to restrain any use of such information (perhaps because its relevance to the ultimate decision could not yet be ascertained).
Finally, Mr Howe submitted that relief should be refused because, as a condition of their registration as players, support staff and a Club of the AFL, they had agreed to submit to the precise regime and processes about which complaint was now made.
The submissions then moved to the merits, and concluded with an emotional flourish, presumably intended to shift the moral burden back onto the Applicants and away from ASADA’s own conduct.
In short, ASADA’s position was this:
- There is no express prohibition against a joint investigation in the legislation
- The Applicants contend for an implied prohibition against a joint investigation but they must “search in vain” for this given the level of co-operation envisaged by the ASADA Act and NAD Scheme
- Likewise there is nothing to prohibit ASADA from obtaining information by the exercise of compulsory powers under the umbrella of a sporting body such as the AFL
- ASADA’s disclosure to the AFL for the purpose of enabling it to consider and take disciplinary action was entirely authorized by and consistent with the NAD Scheme
- ASADA’s investigation into Essendon Football Club would have occurred whether or not there was a joint investigation. The participation by ASADA in a joint investigation was a means to an overall end, not an end of itself.
- Therefore, if the joint investigation was contrary to the ASADA Act, any unlawfulness would only permit the court to make orders in relation to identified aspects which were unlawful, and not permit the court to strike down the whole of the investigation
Taking the last two points first, the question of whether a person or body has acted for an “improper purpose” is usually directed to whether that purpose was based on a collateral or unrelated motive. Here, ASADA’s position appears to be that its overall purpose was ‘proper’, namely, to investigate the prospect of anti doping rule violations (ADRVs).
Further, ASADA submits, if the investigation as a whole was justifiable, any unlawful elements should be dealt with in such a way that ASADA’s legitimate investigative activities were not destroyed.
This ‘piecemeal’ argument as to how ASADA’s conduct should be assessed contrasts against Neil Young QC’s ‘boots and all’ approach.
Another significant point of departure concerns the policy rationale for ASADA. The Applicants, no doubt correctly, point to extrinsic materials indicating ASADA’s intended independence as a statutory body. However, the Respondent pointed to other extrinsic materials highlighting the importance of its inter-dependence with sporting codes.
Specifically, in circumstances where the NAD Scheme requires the CEO of ASADA to have regard to the WADA Code and associated International Conventions, these documents refer to “complementary” responsibilities connoting interdependent, harmonized and co-ordinated anti-doping programs.
It may well be, of course, that these competing extrinsic materials represent an irreconcilable inconsistency in policy approach. That will be an interesting matter for the trial judge to resolve.
As for the rhetorical flourishes, Tom Howe QC submitted that it was a “startling proposition which almost defies credulity” that Essendon Football Club could argue that its “seriously derelict management which unarguably led to suspicions of doping violations” was unconnected to ASADA’s investigation.
He said that the evidence will show that suspicions about governance led to senior Essendon Football Club officials approaching ASADA. They had carried out inquiries which led to them understanding the possible emergence, risk and actuality (potentially) of ADRVs. No one has said, it was submitted, that there is no connection between this and ASADA’s investigation.
Mr Howe said that Mr (Paul) Little (President of Essendon Football Club) was not here to say that governance and mismanagement lacked any connection with the emergence of ADRVs suspected by the CEO of Essendon.
He further stated that the connection between poor governance and management with suspected ADVRs underpinned Mr Ziggy Switkowski’s report for Essendon Football Club: “Any reader of that report could not possibly doubt or gainsay poor governance and mismanagement in connection with ADVR”.
Mr Howe referred to “toxic” governance and mis-management at Essendon, pointing to the Club’s own public statements to the effect that it failed to ensure it adequately ensured it protected the safety and health of its players, that there was a risk players had been administered substances in breach of the WADA Code, and that any such risk was an unacceptable risk. He added that the Interim Report was overwhelmed by the existence of that very connection.
Mr Howe concluded that if ASADA was unable to disclose to the AFL the “abysmal governance and mismanagement” at one of the AFL’s own Clubs, then it was self-evident that this would “substantially compromise” the objectives of Scheme and result in an “anomalous and perverse” outcome.
What happened to the question of confidentiality?
Entirely absent from ASADA’s submissions was any nuanced discussion about confidentiality, and whether the disclosure of information to AFL staff breached ASADA’s obligations under the ASADA Act and NAD Scheme.
True it is there was a general policy discussion about why the disclosure of such information should be permissible.
However, it would be fair to say this issue was side-stepped, indicating a lack of confidence by ASADA in this aspect of its case. The prospect of an adverse finding in this respect might have informed Tom Howe QC’s submission that any such finding should not impact the legality of the overall investigation.
Justice Middleton’s Reflections
The judge ensured that no party was entirely comforted by his remarks.
Concerns for the Applicants:
- The concept of improper (or unauthorized) purpose might make sense if an organization was investigating bullying, when its function was drugs, but the issues appear less clear cut if it relates to ‘drug management’.
- “If I have a power which allows me to get the aid of the AFL and I know the AFL has powers that I don’t have… No one is suggesting the AFL has done anything wrong. If somehow ASADA can get those powers lawfully what’s wrong with that?
- “We must work out what the NAD Scheme means. If wider than just investigation into drugs, your argument would have less force.”
- “Nothing you seek can prevent ASADA from starting again and continuing the investigation”.
Justice Middleton made it plain that he has a difficulty if the Applicants are arguing that the investigation was so tainted by illegality that it cannot continue. Partly his concern relates to how one could craft such an Order.
Concerns for the players:
Justice Middleton: I have two moving parties before me. If it turns out that there are discretionary grounds against the Applicants [which means I should not grant relief], that’s the end. But the players aren’t parties.
In other words, by choosing not to be joined to the case (when he gave them ample opportunity to do so), the judge is clearly concerned about the weight he should give to any submissions they might make seeking court orders, if there are discretionary reasons specific to James Hird and Essendon which means he should not grant them.
Justice Middleton also observed he had been unable to find a case whereby third parties sought that particular orders be made. Usually, he said, the third party says “don’t make the order” not the other way around.
Concerns for ASADA:
Justice Middleton: Why not separately ask them [the AFL] to hand over and then separately investigate?
Tom Howe: Yes – other methods are possible or preferential
Justice Middleton: [Then referred to the prospect that the AFL might not have the expertise to conduct an investigation]
Tom Howe: [Then submitted that ASADA had chosen the path which was the most efficient.]