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Can the ‘real’ ASADA please stand up? Two different pictures in James Hird appeal

MELBOURNE, AUSTRALIA – NOVEMBER 10: Bombers fans show their support at Melbourne Federal Court on November 10, 2014 in Melbourne, Australia. Some even stayed in court for the whole day! A terrific achievement. (Photo by Michael Dodge/Getty Images)

James Hird and ASADA painted philosophically different portraits of ASADA in the Full Federal Court hearing commencing before Justices Kenny, Besanko and White on 10 November 2015.

If the legal arguments of each side were personified, ASADA would be two different people.

The ASADA James Hird seeks to present could be a bit like a school principal. Aloof and austere, ‘School Principal ASADA’ would keep itself distant from the teachers and school population. It would investigate infractions itself. It would appreciate the limits of what it could do. Those limits might mean it could not investigate all it would like. However, School Principal ASADA would appreciate that creative thinking is a pathway to disaster. Teachers would be involved strictly on a ‘need to know’ basis, handing over information from their own investigation as required. School Principal ASADA would then deliberate in solitary splendor before making a decision, one way or the other.

ASADA’s arguments lead to a different image. This ASADA, a bit like the enthusiastic team member who likes a group hug, would bring all stakeholders into its circle of trust.   The resulting community, with an international dimension as well as a local one, would have the common purpose or “plan” of fighting anti-doping rule violations (ADVRs) together. ‘Group Hug ASADA’ would not have in its tool basket every tool needed to fight ADVRs. However, in the spirit of true teamwork, the sporting administration body (in this case the Australian Football League) would pool resources with ASADA to maximize the information obtained for deliberation and decision.

Did the Full Court prefer ‘School Principal ASADA’ or ‘Group Hug ASADA’? Well, they indicated some suspicion for both.

James Hird Arguments

The arguments presented by Peter Hanks, Senior Counsel for James Hird, can be summarized as follows:

  1. ASADA is an independent authority.
  2. ASADA did not, at the relevant time, have the express power to coerce Essendon Football Club players to attend interviews and ask questions about the Club’s then supplements program.
  3. Without such power, ASADA was unable to participate in any process by which such questions might be asked.
  4. The language of the ASADA Act empowering its CEO to do all things “necessary and convenient” (refer s. 22) cannot be used to confer ASADA with a power it does not otherwise have.
  5. The language of “co-operate” under the National Anti-Doping Scheme (clause 2.04(d), (f), (j) and (n)) should be narrowly construed. The term ‘co-operate’ must be regarded as subordinate to ASADA’s independent investigatory powers (or lack thereof). Any such assistance, if applicable to the AFL at all, would be limited to informing ASADA, submitting to ASADA or reporting possible doping violations to ASADA.
  6. ASADA should not have attempted to free ride off the AFL’s arguably broader powers to coerce players and support personnel to attend such interviews.
  7. Indeed, the trial judge’s conclusion that the AFL did have such broad coercive powers might not even be correct (refer construction of clause 12.6 and 12.7 of AFL Code).

At the beginning of the day, Justice Kenny said the appellant faced a difficulty that the primary judge had found there were two concurrent investigations in which ASADA gained the benefit of the AFL’s wider powers. It was not a case, she suggested, where ASADA had sought to enlarge its own powers.

Peter Hanks disagreed with this, which led him to traverse into some dangerous territory. James Hird had undertaken not to challenge the primary judge’s factual findings in order to secure an expedited appeal.

Peter Hanks arguably managed to overcome this hurdle by submitting that the Appellant challenged the “mischaracterization” of the factual findings, not the factual findings themselves (a true ‘lawyer’s point’, you might say!).

Whatever the case, the Appellant does now contend that ASADA was in the driver’s seat of an unlawful joint investigation, and that the primary judge was wrong to call it otherwise.

Questions from Justices Besanko and White mainly focused on what happened during the player interviews. They sought to test why it was unlawful for ASADA to be supplied with answers to questions by players and support personnel. The interviewees had turned up, answered questions and were legally represented. The thrust of the judges’ questioning was, surely they had consented to the process or waived their rights to complain about it? How then, could ASADA’s role as the recipient of this information be regarded as unlawful?

The Appellant attempted to meet this by arguing that ASADA’s conduct when summoning players and support personnel to interviews hardly suggested there was any element of choice involved. ASADA’s approach to the process was coercive, the Appellant suggested, even if this was done under the auspices of the AFL Code.

ASADA Arguments

ASADA’s Senior Counsel, Tom Howe, observed that the player interviews were central to James Hird’s appeal, and all other issues (e.g. the Interim Report) had now gone by the wayside.

Focusing on the player interviews, Tom Howe started his submissions by concentrating on the end of the process. He suggested that if ASADA had received answers to questions in interviews lawfully, then that was the end of it. ASADA’s purpose, the content and nature of any underlying agreement, nothing else could change this lawful outcome.

To that end, ASADA suggested James Hird had invited the very joint investigation about which he now complained. This had informed his approach to the interviews, it was suggested. Further, he had senior counsel present during the interview, he had waived his right to complain, and ignorance of the law (if that was the case) was no excuse to waiver. Tom Howe submitted: “Mr Hird decided to get on with the interview. He had nailed his colours to the mast at the ‘get go’ by calling for a joint investigation”.

Tom Howe further submitted that it was “fictitious” and “ridiculous” for the Appellant to contend for a cone of silence (or intermediate step) between interviewees and ASADA, such that ASADA would be provided with answers by interviewees and in turn ‘disclose’ this information to the AFL. James Hird had argued that by allowing the AFL to attend interviews, ASADA and the CEO disclosed information in a manner inconsistent with cl 4.21 of the NAD Scheme.

Whilst this approach was said to be “beguiling”, Justice Kenny in particular appeared perturbed by it. She said: “The difficulty is that it stands on its head”. She noted: “You are crunching that from the other end”.

She then suggested: “Isn’t that the problem? The point put against you is that ASADA had no compulsive powers, that it did so only because of the AFL’s power. The assault is on what ASADA did. It must go to the powers of ASADA”.

Justice Kenny was also concerned that ASADA had “side stepped” the ASADA Act.

Senior Counsel for ASADA sought to meet this skepticism on the following basis:

  1. ASADA at no stage exercised its own powers. The AFL exerted its compulsory powers. Interviewees answered the questions. ASADA received this information legitimately.
  2. Sporting bodies and ASADA would work in very close lockstep. Sporting administration bodies would impose rules on participants in sport pursuant to the relevant anti doping regime. Sporting bodies would have authority to enforce obligations, and oblige participants to comply with rules. Thereby, whilst ASADA might not have and did not have powers itself, sporting administration bodies could and would enforce the investigation of ADRVs, refer information to ASADA and most significantly ensure they cooperated with ASADA.
  3. The Appellant and all 34 players did not assert a privilege. With the assistance of legal advice they chose to answer the questions.
  4. ASADA had the power to ask questions (as distinct from coercing people to answer them). Under general law, this involves no breach of the law. The posing of questions, where answers are given, did not breach the law, but were consistent with it.
  5. It is one thing to say ASADA lacked power to coerce responses to questions. It is quite another to suggest this amounts to a prohibition against ASADA working with anyone else who might have such powers. Such a ‘negative implication’ based on High Court authority, must be articulated with an “exact and precise formulation”. The Court must be confident that it knows what the legislature would have said. Here, “the negative implication is all over the place”. It is “fragile”.

Next steps

The appeal continues tomorrow at 10.15 am. This was not planned. It had been originally listed for one day. However, Justice Kenny, as the senior presiding judge, was plainly focused on giving both sides a fair opportunity to put their respective positions, even if this exceeded expected time limits.

Senior Counsel for ASADA submitted that the additional time taken by his opponent was caused by an impermissible challenge to the primary judge’s factual findings. Whilst the Court acknowledged this, the point did not prove influential (to questions of timing, at least).

It might also be that, given the judicial probing this afternoon, Senior Counsel for ASADA appreciated the chance to deliberate on his submissions overnight.

Perhaps every cloud does have a silver lining.

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