More than a ball game: Understanding Essendon & Hird v ASADA Judgment

By ChrisKaias, September 24, 2014

Why the case is important

Putting aside partisan interests, the judgment is important because the court has tested, for the first time, some of the key powers underpinning the ASADA Act.

The case has a clear message. Bearing in mind the goals to be achieved and the very broad powers granted to ASADA, Justice Middleton decided that the Act should be construed broadly. The importance of investigating potential anti-doping rule violations (ADRVs) lies at the heart of the Act. The public interest, and changing investigation techniques, means investigators should have latitude when exploring whether ADRVs have occurred.

What did the case focus on the most?

The case was not a general inquiry about the conduct of the investigation, or the activities of the ASADA CEO during the investigation. This was a case concerned with the legality of the investigation, not the correctness of it [259].

The case was always going to turn on the judge’s interpretation of the Australian Sports Anti-Doping Authority Act 2006 (Cth) (‘ASADA Act’) and the National Anti-Doping Scheme (‘NAD Scheme’).

Any game of Australian Rules involves more than a scoreboard. The game will be remembered for the moments within the game: the great mark, the banana kick from the boundary and the changing fortunes of the teams.

Understandably in this case, the media made much of the testimony of key participants in the investigation, and the exposure of ‘behind the scenes’ details.

As the judgment reveals, much of this had only borderline relevance to the ultimate question of whether ASADA had power to act as it did.

For lawyers, is there anything in this judgment for us?

If you are looking for a decision about how to interpret Australian legislation based on international conventions and agreements, this judgment might help.

Justice Middleton confirmed that Australian principles of statutory construction apply [268]. However, international context might be relevant when understanding the purpose of the Australian legislation [270].

Judgment reveals: A hard case to win

Consider what Essendon and James Hird needed to prove if they were to win:

• Their analysis of the ASADA Act was correct, even though some of the plain language of the Act went the other way
• ASADA could not work closely with the AFL, even though the Act requires close cooperation and allows ASADA to provide information to sports administration bodies
• ASADA’s role should be construed narrowly, even though the Act allows ASADA to do what is necessary and “convenient” to meet its obligations
• The task of pursuing ADRVs by ASADA was done for an improper purpose because ASADA closely collaborated with the AFL and knew the AFL’s disciplinary intentions
• There were NO discretionary factors which would inhibit Justice Middleton from ordering that the show cause notices issued to 34 Essendon players be set aside
• It did not matter that none of the 34 Essendon players were a party to the litigation
• It did not matter that the AFL was not a party to the litigation

In fact, Essendon and James Hird did not overcome any of these hurdles. The judge also commented on the absence of the players and the AFL from the litigation, even though their interests could be affected by the outcome.

What was Essendon’s case?

Essendon and Hird’s challenge had two key legal grounds:

• The investigation was ultra vires (in that ASADA did not have the power to conduct the investigation the way it did). This involved both ASADA’s use of the AFL’s compulsory contractual powers, and the disclosure of information by ASADA to the AFL.
• There was an improper purpose for both the investigation and the provision of the interim report to the AFL.

What did Essendon want?

Essendon and Hird first and foremost wanted the Show Cause Notices set aside. They also sought (at [8]):

• a declaration that the investigation was beyond the power of the Act;
• a declaration that ASADA breached confidentiality requirements by providing the Interim Report to the AFL;
• a declaration that the interim report was provided for an improper purpose;
• an injunction preventing Hird and any Essendon player from being issued a Show Cause Notice based on information obtained in the investigation; and
• an injunction preventing the CEO from using any of the information obtained in the investigation.

Was it a ‘joint investigation’?

As those in the courtroom would know, plenty of time was dedicated to the label to given to the parties’ investigation. For the Essendon camp, they believed the label was important as the Act does not specifically refer to ‘joint investigations’. For ASADA, the use of such a label was rejected as a tactic intended to give legal meaning to conduct deserving of independent examination.

Very early on in the judgment, Middleton clarified that while the investigation might be called a ‘joint investigation’, ultimately its label was irrelevant. The true enquiry should concern the ‘nature, purpose and conduct of the investigation itself’ [1].

As conceded by ASADA prior to trial, by co-operating with the AFL, ASADA obtained a benefit it did not otherwise have in the ASADA Act: to compel Essendon players to participate in the investigation and attend interviews; and to compel players to answer all questions asked, under threat of AFL sanction. The judge then tested the legality of this conduct. He did not use any label to describe it.

The contractual regime

Hird and the players were bound by the terms of the AFL Player Rules and the AFL Anti-Doping Code which contractually obliged them to: produce documents, fully co-operate with investigations, and truthfully answer questions. The AFL was not a party to the proceedings and no challenge was made to these compulsory powers.

Justice Middleton found that any privilege against self-incrimination can be waived [285]. Not only had that occurred here through the contractual agreements, but in addition neither the players nor Hird reserved their rights, and all were legally represented at the relevant time [150]. In other words, at the time they participated in it, they accepted the process as they were legally obliged to do, the judge found.

Justice Middleton was at pains to point out that the players and Hird were only obliged to adhere to the powers because they voluntarily consented to the contractual regime. He noted that no party disputed their contractual obligations at any point [51].

The assurances to the players

After negotiations between the AFL, ASADA and Mr Eccles from the Department on the content of the statements to be given to players, Paul Simonsson and Darren Mullally of ASADA attended the club on 20 February 2013 to make a presentation and provide the statements to the players.

After this, new statements were issued with more qualified wording, and Mr Simonsson made another presentation to the players on 6 May 2013 (prior to the interviews), where he ‘gave certain representations to the Essendon players that they would receive favourable treatment if they co-operated with the investigation’ [116].

While Justice Middleton found the players were ‘encouraged’ by the comments, he found that ‘the Essendon players attended the interviews on the basis of those contractual obligations, set out in the Player Rules and the AFL Code’ [119].

The findings on Ms Andruska

The only witness that Justice Middleton extensively commented on was former ASADA CEO Aurora Andruska, and it was in response to the following statement from Essendon’s written closing submission (at [7]):

‘…the Applicants observe that, in her evidence, ASADA’s key witness, Ms Andruska was non-responsive, evasive and partisan. She frequently avoided answering the question asked, instead giving speeches to persuade the court of the validity of ASADA’s course of action under her stewardship. Ms Andruska sought to disassociate herself from decisions that were not formally put to her in writing. The Court will also have noted Ms Andruska’s long pauses (which are not recorded on the transcript) before answering questions, the answer to which would not assist ASADA’s case.’

Natalie Hickey notes that in litigation it is quite drastic to attack a witness in this manner, and that it is often a tactic of last resort.

Justice Middleton found that he did ‘not consider these criticisms, to the extent they impact on her veracity, can be sustained. Ms Andruska was a truthful witness’ [71]. His Honour found that she provided ‘convincing and credible explanations for the steps she or her investigators took in undertaking the co-operative arrangement between ASADA and the AFL’ [71].

During the trial, when being cross-examined on the 24 May 2013 meeting between Ms Andruska, the AFL, the Minister and a media adviser (referred to at [169]-[170]), Ms Andruska could not recall certain details that were discussed regarding the AFL investigation. At the time, Justice Middleton asked whether it was highly unusual for such a meeting to take place, and when Ms Andruska confirmed this, Justice Middleton commented that this indicated to him that she should recall it. However, it appears on balance that he accepted her explanation.

These findings on her credibility are unlikely to be overturned on appeal as the trial judge is considered to be in the best position to determine such matters, having witnessed the cross-examination.

Much of the questioning of Ms Andruska during the trial by Neil Young QC was about which particular staff member at ASADA made each specific decision (to which Ms Andruska could often not recall). However as Justice Middleton noted at the time, these arguments seemed to go more to an argument of improper delegation (where the CEO needed to make the decision herself and did not do so). This was not one of the pleaded grounds, so if the Applicants had wanted to pursue this point they would have needed to amend their court documents (which they did not do). It also was a futile argument as s 24N of the ASADA Act gives the CEO the authority to delegate ‘any or all of his or her functions and powers’ and the proper delegation instrument was tendered in evidence.

The involvement of the Federal Government

While there was no need to make a ruling in this case on the Government’s intervention into the case, Justice Middleton made some pointed comments about the requirement that ‘ASADA is to be independent from the influence of government, save for the power of the relevant Minister to give directions…[under] s 24 of the Act’ [80]. The directions are required to be made by legislative instrument and must not relate to a particular athlete or support person (s 24(2)). Justice Middleton made clear that ‘ministerial direction outside the specific permission given by the Act would normally be treated as impliedly forbidden’ [80].

Some of the factual findings below may be of interest to any future independent inquiries which may occur into government’s conduct of the matter.

• Justice Middleton found that ASADA came under pressure from the then Minister for Sport, ALP Senator Kate Lundy to ‘reach some sort of conclusion, or “an outcome” from the investigation’ [172];
• Meetings with departmental secretary Glenys Beauchamp conveyed to ASADA that Lundy was being pressured by her colleagues fearing the ongoing matter was hampering their electoral success, and that ‘Lundy – needs something – deal with AFL – support staff sacked, points off, players – off’ [173]-[174];
• Involvement by deputy departmental secretary Richard Eccles, who was present at the initial 9 February 2013 meeting between ASADA, the AFL and Essendon [100]; and
• Mr Eccles was also involved in the negotiations of the wording of the statement that would be given to players canvassing a possible ‘no fault or negligence’ defence, and when ASADA later changed the wording he was contacted by Gillon McLachlan of the AFL and then contacted ASADA’s legal counsel Elen Perdikogiannis expressing concerns [108], [114].

ultra vires argument No.1 – did ASADA have the power to conduct joint investigation?

To determine whether ASADA had the power to conduct the investigation in the way it did, the Court had to engage in a process called ‘statutory construction’ to find out the legislative intention.

The prevailing approach in Australia is to give priority to the actual text of the legislation, while also considering the context and purpose. Justice Middleton cites several recent High Court authorities in support of this [270]. The context must also be considered, and includes what the law was intended to remedy – here, matters relating to doping in sports.

The starting point is that the CEO has the power under s 22 of the ASADA Act ‘to do all things necessary or convenient to be done for or in connection with the performance of his or her functions’ and is authorised under s 13(1)(f) of the ASADA Act and cl 3.27(1) of the NAD Scheme to investigate possible anti-doping violations. The CEO also has the power to do anything incidental to or conducive to the performance of these functions (s 21(1)(o)). Importantly, Justice Middleton said that ‘these concepts should be applied liberally and not narrowly’ [276].

This is a very wide power, and presented Essendon and James Hird with a significant hurdle from the outset.

The meaning of the words ‘in connection with’ ultimately depends on the statutory context in which the words are used [392]-[394].

Justice Middleton found that the proper question to ask in this context was the purpose or objective of ASADA, which he found to be to conduct an investigation into possible anti-doping violations.

While he accepted the submission that there is no express power to conduct a ‘joint investigation’, the CEO also has the power to do all things ‘convenient’ to be done ‘in connection’ with the performance of his or her functions. The key finding on this point is that ‘calling upon the assistance or co-operation of a sporting administrative body, such as the AFL, depending on the way it occurred, could be convenient to the performance of an investigatory function into possible violations of anti-doping rules’. [407]-[408]

ultra vires argument No.2 – did ASADA have power to disclose information to AFL?

This argument relates both to ASADA’s supply to the AFL of: (a) information gathered in the player interviews; and (b) personal information contained in the Interim Report.

Player interviews

Essendon and Hird argued that the players and Hird had disclosed personal information to ASADA in the interviews, and as soon as ASADA obtained the information they simultaneously disclosed it to the AFL personnel in the room. In his closing submissions, Tom Howe QC for ASADA suggested this was the equivalent of arguing that there was a ‘cone of silence’ over the AFL personnel in the room.

Justice Middleton firmly rejected this characterisation, finding that the AFL received the information directly from Hird and the players. As the players simultaneously divulged the information to both ASADA and AFL at the same time, there was no issue of disclosure by ASADA to the AFL [415]. This was further strengthened by the fact that it was the AFL that had the power to obtain the information. Alternatively, players knowingly consented to disclosure by being in the room and knowing the AFL personnel were present [417].

Interim Report

The cover letter to the Interim Report turned out to be important, and seems to have been carefully drafted by ASADA’s lawyers to ensure compliance with the law.

Personal information must not be disclosed to the AFL, unless it falls within one of the exceptions in s 71(2) of the ASADA Act, including s 71(2)(b) which allows disclosure ‘for the purposes of the NAD Scheme’. Clause 4.21(2)(a) allows disclosure of information to ‘a sporting administration body’, which links back to the power under s 13(1)(g) of the Act to ‘authorise the CEO to disclose information obtained during such [anti-doping] investigations for the purposes of, or in connection with, such investigations’.

Insofar as what the term ‘for the purposes of, or in connection with’ means, it is clear on the plain reading of the words that it permits disclosure of information ‘in connection with’ matters which are not ‘for the purposes of’ the investigation.

In the view of Justice Middleton, the Interim Report satisfied both requirements, both for ‘the purposes of’ the continuing investigation, and ‘in connection with’ the investigation [457].

It was ‘for the purposes of’ the investigation as the cover letter stated that ASADA wanted comment from the AFL and that the investigation was continuing:

‘Please provide me with your comments on the interim report. For example, I am particularly interested in receiving the AFL’s views on the necessity for me to use my new powers to gain further information about specific substances provided to players and their contents.’

The Interim Report was also ‘in connection with’ the investigation because the Report identified a connection between deficient governance and management practices and the possibility of players being involved in anti-doping violations. But Justice Middleton noted that the Interim Report did not dwell extensively on governance, instead focusing on the suspected anti-doping violations [461].

The Interim Report did not contain any of the evidence from the ACC, material relating to other ASADA investigations, or sensitive medical information. ASADA was careful not to supply information which might be in the ‘impermissible’ category.

Improper purpose argument No.1 – was investigation for an improper purpose?

Essendon and Hird argued that ASADA agreed with the AFL to conduct the investigation for the improper purpose of using the AFL’s compulsory powers and to provide information to the AFL for its own purposes.

Justice Middleton found that while the desire to use the AFL’s powers would have been a consideration, it was not the purpose of the investigation [426]. The purpose of the investigation was to investigate possible anti-doping violations.

ASADA did not use any compulsory power of its own, and no question was answered from any requirement to do so based on any state power. Hird and the players were not answering questions because of any requirement to do so under the ASADA Act or the NAD Scheme. Instead, they were compelled by their own contractual agreements [440]. Indeed, Justice Middleton found that the compulsory powers were being used by the AFL, and not by ASADA.

Justice Middleton’s reasons suggest that ASADA can still team up with the AFL in future and use the AFL’s compulsory powers. The amendments to the ASADA Act which gave ASADA expanded powers and the ability to compel people to attend interviews and produce documents have not affected this ability [441].

Improper purpose argument No.2 – was the Interim Report provided for an improper purpose?

By providing the Interim Report to the AFL, Hird and Essendon argue that ASADA acted for purposes extraneous to ASADA’s investigation

Justice Middleton made the finding that ASADA provided the Interim Report ‘to seek feedback from the AFL for ASADA’s continuing investigation’ (emphasis in original) [209]. Justice Middleton found that this was a legitimate purpose, as there were still tasks to be performed and the investigation did indeed continue until the report to the CEO on 30 May 2014.

In any case, Justice Middleton also found that:

‘The difference in “purposes” or “objectives” of the AFL and ASADA is not to be overstated. Both had a similar aim, directed to detecting and preventing drug violations. ASADA was seeking to investigate specific allegations against Essendon players and personnel; the AFL was directing its attention to club governance and the environment in which the violations occurred’ [210].

Relief

It was not necessary to decide, but for the sake of completeness (and perhaps with a possible appeal in mind) Justice Middleton responded to ASADA’s arguments regarding relief.

Later decision-makers should be free to admit evidence

ASADA argued that later decision makers (such as the Anti-Doping Rule Violation Panel, Administrative Appeals Tribunal and AFL Anti-Doping Tribunal) should have the discretion to determine whether to admit unlawfully obtained evidence. Justice Middleton swiftly rejected this.

Delay and acquiescence

Justice Middleton rejected any argument of delay because proceedings were launched immediately after Show Cause Notices were issued. While Middleton accepted that Essendon and Hird did acquiesce in the process, he found that ASADA were operating under some legal uncertainty.

However, with regards to provision of the Interim Report, Justice Middleton suggested that if he had found that unlawful then the delay in bringing proceedings from August 2013 and now would prevent any relief, particularly as a third party (the AFL) has acted upon the report [494]-[496].

Inevitable outcome

Justice Middleton found that he would not have awarded the relief that Essendon and Hird wanted, essentially because it would have been a pointless exercise. This is because the players are still compelled to provide the information to the AFL, and ASADA could then have requested that information from the AFL.

Even though a common-sense response to this may be that it is possible the players would choose not to answer this time and ignore their legal obligations under contract, Justice Middleton found that ‘Mr Hird and the 34 Players can hardly be heard to contend before this Court in these proceedings that they would break their current contracts with Essendon and the AFL, and fail to provide requested information to the AFL’ [492].

Conclusion

The judgment comprehensively disposed of the Applicants’ arguments. There was nothing they could take from it. Therefore, if they want to take the litigation further, their only choice will be to try to unravel the entire reasoning from the start to the finish. In light of the Judge’s approach, that could prove a Herculean task.

Chris is a law student at the University of Melbourne who currently works as a paralegal and volunteers at a community legal centre and with the Cancer Council. He is currently Assistant Editor of the Melbourne University Law Review. Prior to studying law he worked in online sports and racing bookmaking for seven years. He’s passionate about sports law, media law, administrative law, and litigation.