When Court adjourned after Day 1 of James Hird’s appeal, ASADA’s legal team had likely decided a rethink was in order.
Earlier that day, ASADA’s Senior Counsel, Tom Howe, had sought to take the short route home. He had invited the judges to disregard the niceties of ASADA’s statutory authority and to direct their attention to one key issue: Was it lawful for ASADA to acquire information from players and support personnel at interviews conducted in conjunction with the AFL?
If the players had, for example, answered questions at these interviews without protest, then it was submitted ASADA was a grateful and lawful recipient of this information. Cue the end of the case.
Justice Kenny, the most senior member of the Full Court, was having none of this. She wanted to understand the source of power by which ASADA sought to act in conjunction with the AFL. If the answer did not satisfy, ASADA’s ability to defend the primary judge’s decision appeared in peril.
Change in approach
Day 2 of the hearing commenced at 10.15 am. The appeal was over by lunchtime. Tom Howe had most of the floor. Peter Hanks, Senior Counsel for James Hird, was given a short time in reply.
There was no short cut today. Tom Howe took the Court on a long tour through all the legislation and extrinsic materials. His goal? He wanted to show that the ‘real’ ASADA was ‘Group Hug ASADA’ not ‘School Principal ASADA’. See previous post for an explanation of these personae.
Ultimately, ASADA’s task was to persuade the Court that close cooperation between ASADA and the AFL, including of the kind where ASADA would benefit from the AFL’s contractual authority to coerce players to answer questions in interviews, was exactly the sort of relationship the legislative scheme had in mind.
First Stop – The ASADA Act
The tour’s first whistle stop was section 15 the ASADA Act. This was not intended to become a controversial discussion, but Mr Howe’s attempt to describe how the section worked led to head shaking from Mr Hanks and a vigorous exchange with Justice Kenny who concluded triumphantly: “But I’m right in that, aren’t I!” (“I think your Honour is right”, conceded Mr Howe).
Ultimately, there appears to have been common ground that section 15 locates the provenance of the National Anti Doping (NAD) Scheme rules insofar as they apply to sporting administration bodies. It was argued that section 15 (which refers to the prospect of rules by which ASADA’s CEO can monitor the activities of sporting bodies) suggests that ASADA’s CEO has a real interest and role in the functions of the AFL.
Second Stop – NAD Scheme
The second stop of the tour was the NAD Scheme itself. Clause 2.04 provides that:
- A sporting administration body (like the AFL) must at all times have in place, maintain and enforce anti-doping polices and practices that comply with the WADA Code and International Standards, and the NAD Scheme (see (a));
This was said to directly contemplate rules of the kind the AFL implemented.
- ASADA’s CEO must approve the anti-doping policy before it is adopted (see (b));
This was said to show that the CEO has an interest in the AFL’s rules, because the CEO must approve them. In other words, it was said, if the sporting body is a “patsy” and gives itself no powers or authority, the CEO can decline to approve the policy on the basis that the rules are insufficient to fulfill the requirements of the scheme.
- The sporting body must ensure that at all times it has the authority to enforce its anti‑doping policy (see (c));
Mr Howe asked rhetorically (there were a lot of ‘rhetorical questions’ during the hearing): What can the reference to ‘authority’ mean if it is not intended to allow the AFL to put in place a whole raft of contractual powers and then exert them?
- The sporting body must immediately inform the CEO of an alleged breach of its anti-doping policy and cooperate with any investigation into the matter (see (d)). (emphasis added)
This was said to demonstrate the CEO’s stakeholder interest in anti-doping rules that the AFL was required to have in place. Mr Howe described this relationship as “lockstep partnering”.
As to the meaning of “inform” cf “refer” (in (j)), White J sought to understand the distinction between these terms. Mr Howe suggested in response that “inform” indicated a range of matters the AFL could raise with ASADA which are not compliant but would not attract ASADA’s intervention. The term “refer” by contrast suggests ASADA has an interest in ADRVs.
- The sporting body must provide to the CEO appropriate details or reports related to investigations, hearings, appeals and sanctions (see (e)).
This was said to mean that it is the AFL’s obligation to work “very very closely with the CEO of ASADA regarding an investigation into breach of player rules”.
- The sporting body must comply with, implement and enforce its anti‑doping policy to the satisfaction of the CEO (see (h));
This was said to mean that once ASADA’s CEO gives its approval the AFL must obey its own policy and implement it and enforce it. One way to do this, it was suggested, was for the AFL to investigate as its contractual arrangements permit. That is something the AFL is required to do not just to an objective standard but to the satisfaction of the CEO.
- The sporting body must submit to the operations of the CEO (see (i)).
Reading this in conjunction with the previous sub-paragraph, Mr Howe added: “Had the AFL decided not to investigate itself, the CEO of ASADA would be required to go back to the AFL and say that you are giving yourself authority but are sitting idly by like a patsy and doing nothing even though you have these contractual powers. So we want you to set up a joint interview or we want you to exercise your contractual powers you have given to yourself and submitted to me and which I have approved.”
- The sporting body must also refer all instances of possible anti-doping rule violations to the CEO for investigation and cooperate with any investigation as required (see (j)) (emphasis added).
The concept of ‘cooperation’ was a two way street, it was suggested. The AFL should not abdicate its responsibility. The AFL was required to remain “at the table”.
Justice Kenny then asked whether “refer” confers a duty on ASADA to investigate and the AFL then to cooperate? In other words, should such an investigation proceed on a staged basis? Mr Howe responded that a suite of responses was open to ASADA under the Act. The only thing the Scheme does not contemplate is the prospect that ASADA might simply shelve any investigation.
Mr Howe said: “We say ASADA could do its own independent investigation or it might say ‘we are stretched but could we engage with you about what you should do and keep us informed’?” He said that close cooperation was also envisaged.
Justice Besanko then asked: “Can you expect two investigations to take place at the same time?” “Very much so” was the response. Besanko J then mused: “So the AFL could ‘inform’ or ‘refer’, and then the AFL could also conduct its own investigation.”
Mr Howe further referred to the relationship between ASADA and the AFL under this provision as a “continuum”. At the one end, ASADA could direct the AFL to do nothing or risk compromising ASADA’s own investigation. At the other end, the scale of the problem and ASADA’s lack of resources could lead to ASADA requiring close cooperation from the AFL.
Mr Howe sought to gain further support for the potential breadth of options under this relationship by considering the Online Macquarie Dictionary definition for “refer”. Definitions 1 to 5 contemplate language such as “direct attention or thoughts of”, “direct for further consultation”, “to return for improvement”, “to allow [usually a candidate] to take again”.
Only Definition 6, he said, satisfied the narrow definition of “refer” contemplated by James Hird. That reads: to hand over or submit for information, consideration, decision, etc.: to refer a cause to arbitration.
In relation to clause 2.04 generally, Justice Kenny then asked: “Do you accept that ASADA was given the primary role under this provision, whereas the sporting administration has a vital role … but is not leading its own investigation?”
Mr Howe responded that there was no stipulation to this effect but it was something for the parties to work out in each case. Nothing was said in the scheme about who had the ‘primary’ or ‘secondary’ role or ‘lead’ role or so on.
Mr Howe then submitted that the AFL’s rules were exactly what the NAD Scheme contemplated. They were also more robust than those of many other sporting authorities.
Mr Howe referred, for example, to a review conducted by Justice Wood into Cycling Australia (following the USADA investigation into Lance Armstrong) in which he recommended that its contractual powers be boosted to bring them more in line with the AFL. As Wood J said in the report:
“I am aware that some sports have put in place arrangements to facilitate cooperation between athletes, clubs and support personnel and ASADA in relation to investigations. The National Rugby League (NRL)96 and Australian Football League (AFL),97 as part of their anti‐ doping arrangements, have a requirement that certain classes of people, which are defined by the respective policies, must cooperate with investigations associated with doping. For example, the AFL’s anti‐doping code requires each player, club, officer and official to fully cooperate with any investigation and includes a sanction for a breach of this requirement.98 CA should develop similar arrangements, appropriate to its circumstances, to enable greater cooperation with ASADA investigations.”
Finally, Mr Howe was happy to admit that neither the Act nor NAD Scheme gave ASADA coercive powers to require athletes to answer questions as part of an ASADA investigation (at least during the relevant time). However, he said that it was an “extraordinarily large implication” to infer from this that ASADA should be prohibited from gaining the benefit of the AFL’s wider powers.
Besanko J then asked: “What do you say about the amendments?” (by which ASADA was provided with such coercive powers). Mr Howe responded that the amendments provide extra teeth because some sporting bodies are not putting in place very strong policies. It is clear from the extrinsic materials that it was felt there was sufficient scope under the scheme for such powers to be put in place: “There are very strong statements, including by the current Attorney-General, that they do not want any aspect of the system involving piggy backing to be interfered with”.
Third Stop – International Instruments
The purpose of the final stop of the whistle stop tour was to explain to the Court that the ASADA Act and NAD Scheme contemplated the incorporation of the WADA Code (in particular) into the overall architecture.
Interaction with Justice Kenny led Mr Howe to explain that the WADA Code did not have any relevant procedural features (as to what ASADA could or could not do). However, it was a “framework document”. Justice Kenny responded “That’s what I thought”.
Court attendees likely staggered from the appeal with metaphor overload. Perhaps the pivotal image from the morning was the concept of a ‘triangle’. Mr Howe said that there were “two points in the triangle were meant to interact” (eg. Rules + investigation into ADRVs). The third point was said to be “the players” in that athletes must have knowledge of and comply with rules in adherence to the WADA Code. The AFL did this, which was entirely contemplated and consonant with the WADA Code, said Mr Howe.
Further, Mr Howe acknowledged that the AFL had the “whip hand” in negotiating such contractual compliance with players and support personnel under the AFL Code. That said, notwithstanding the strength of the hand because the AFL organizes the competition, it was said, “one cannot deny the choice of such personnel to submit to a regime as a condition of their participation in the sport”.
Tom Howe then asked another ‘rhetorical question’: “Despite the Act, the Rules, the WADA Code, and the premium placed on investigative functions, if a sporting body exerts contractual power, how is it that ASADA is unauthorized to receive such information?” It could only be as a matter of implied prohibition and statutory construction, that ASADA would be unauthorized to receive those answers to those questions. He then described this proposition (which just happens to be the Appellant’s key contention) as “extraordinary”.
Time was running out so the questions started to flow thick and fast from the bench:
Besanko J: Were there two investigations or one? Does it matter?
A: The court is constrained by the findings below. There were two separate but complementary objectives.
Kenny J: What were the precise powers relied on by ASADA in this investigation?
A: Clause 3.27 (general investigatory function) plus s.22 (necessary and convenient) and s.21(1)(o): “One can hear the legislature straining to confer latitude and amplitude to the functions of ASADA. None of this is receptive to negative implications”.
Kenny J: Section 22 may assist you more. Don’t you need to point to substantive power?
A: Yes – s.13
Besanko J: Functions drives next steps
A: Yes there are a number.
Tom Howe then sought to attack the Appellant’s attempt to challenge on appeal the scope of the AFL’s contractual powers, noting that this had not been raised below. He said that, had the point been taken below, ASADA might have wanted to put on evidence about it. He said that James Hird would have been tested on this in cross-examination. He said that the AFL would have been a necessary party to the case. He said that the obligation rested on the Appellant to properly constitute the proceedings. And so on.
Greg Baum wrote in The Age in relation to Day 1 of the Appeal: “But the word “drugs” was heard only once all day, and “supplements” not at all, and at the adjournment, we were a few hours closer to knowing Hird’s fate, but none at all to knowing what the hell did happen at Essendon.”
In fact, it took until the last words of Tom Howe, on the final day of the appeal, that the fundamental issue at the heart of ASADA’s investigation was spoken about for the first time.
Mr Howe submitted that “There is a compelling public interest in an adjudication on the merits. The substantive question is: “Were there doping violations? Only a procedural question is being considered today.”
In closing, Mr Howe also submitted on behalf of ASADA:
- There is no suggested that the AFL has tainted information
- The AFL can provide it to ASADA again
- Even if the information was obtained unlawfully, this does not mean it is a nullity
- Its weight needs to be assessed by downstream decision makers
- James Hird answered questions during the investigation
- He let the investigation take its course
- He did not challenge until “he did not like the outcome”
- All 34 players want the process to proceed
- They want to contest it on the merits
- The Appellant alone is here.
Response from James Hird
Peter Hanks had only about 30 minutes to respond, and it is fair to say much of the Reply covered the same ground.
Of greatest significance? The Appellant expressly abandoned any attempt to challenge the breadth of the AFL’s powers, an attempt which had been criticized so heavily only a short time earlier.
The Court has reserved its decision. Indicative time frames have been provided by mainstream media for a decision, with suggestions of “weeks“, “before Christmas” and early next year. Appeal decisions, unless there is genuine urgency, usually take months to be handed down. However, this is not a normal case. The hearing received expedition. So it may be that a decision will be on the ‘sooner’ rather than ‘later’ side.