“You like to-may-toes and I like to-mah-toes”: Let’s Call the Whole Thing Off (George & Ira Gershwin, 1937)
Observers of the anti-doping saga involving Essendon Football Club have traversed different courts over the last year. The Federal Court of Australia and the Supreme Court of Victoria have each showcased their dedication to open justice.
The Federal Court created an online file, making key court documents, including submissions, accessible to the public at the click of a button. As the official website says: “This online file has been established in view of the public interest.” Television cameras were also permitted in court. Another courtroom with video link access was also set up for the media to watch proceedings and write reports.
The Supreme Court also had an open court, television or video cameras and a working area at the side of the room reserved for media. In the likely silent tussle between the two jurisdictions as to “who can be more open”, the Supreme Court also permitted digital cameras as well. In my view, this was a step too far.
A sustaining image is that of the hirsute camera-man, resembling a life model from the The Joy of Sex (the 1970s hairy edition), roaming Court 15 with his colleagues, snapping furiously whilst barristers were on their feet. Yes, it is wonderful that you have the latest Canon or Nikon Digital SLR, but the shutter noise is appallingly obtrusive. It is also hard to see the point, unless the end result will be a Marvel comic-style flip book of the day’s events.
Now, also in the name of the ‘public interest’, the AFL Tribunal has decided to close its doors completely to the media and the public.
What gives? How can the ‘public interest’ justify such contrasting approaches to whether a hearing is open or not?
The ‘Public Interest’ is to close the doors of the AFL Tribunal hearing
In a ruling made on 8 December 2014, the Chairman of the AFL Tribunal, Mr David Jones, considered that the public interest in “preserving and protecting the privacy and private and personal information of the 32 players” outweighed the public’s interest in receiving information presented at the hearing.
How do we, the ‘prurient public’ (I will come to that later), feel about this? Yes, it might be tremendously unfortunate if innocent people must bear the burden of defending themselves in proceedings concerning alleged anti-doping rule violations.
Unfortunately, history shows that innocent people have had to do this time and again in criminal proceedings. Yet the essence of our criminal justice system is that such proceedings are held in public. The purpose of open justice is to provide the public with confidence that the system is working, and that it is fair.
True it is, the Chairman likely felt constrained by the ASADA Act (reflected in the AFL Code which deems that hearings about anti-doping matters should be heard in private unless the Chairman otherwise decides). As we know well from the administrative proceedings before the Federal Court, the protection of player information from the public eye is an important part of the ASADA investigative and enforcement regime.
It is worth asking though, whether the legislative intent of confidentiality underpinning aspects of the ASADA Act is overkill.
After all, if criminal proceedings must be held in public, where people are sometimes wrongfully accused of heinous crimes, what is it about a function that is disciplinary and not criminal which means that confidentiality should prevail?
The Prurient Public
When courts decide something is not in the public interest, they rely on the oft-cited suggestion that “it is quite clear that the public interest disclosure must amount to more than public ‘curiosity’ or public ‘prurience’”.
The Chairman referred approvingly to the above quote, sourced to Kellam J in Australian Football League v The Age Company Ltd  VSC 308. That was essentially a suppression order case to prevent disclosure of the identity of three AFL players who had tested positive to illicit drugs under the AFL Illicit Drugs Policy.
In granting the order, Kellam J stated:
“In the end result, it appears to me that there is nothing other than the satisfaction of public curiosity in having the confidentiality of the names of those who have tested positive breached by being released. It may be a wonderful front page story for the newspapers and a scoop for other sections of the media… However, I can see nothing that is in the public welfare or in the interests of the community at large which can be served by the identification, and perhaps to a degree the vilification and shaming of those who have agreed to be tested randomly…” (refer  of AFL Ruling)
Despite the above, the Chairman ultimately accepted in this case that there was some public interest in people receiving information presented to the hearing (see ), although from the preceding paragraphs one gained an impression of ‘not much’.
What does ‘public interest’ mean?
This important question is rarely analysed. Instead, the term is often invoked to support the decision maker’s viewpoint, one way or the other.
A 1980s defamation case involving Greg Chappell is considered to be a touchstone discussion about public interest, although some of it sounds quite naïve today given the direction of current affairs and reality television in recent decades.
In short, a current affairs program wanted to run a story about Mr Chappell’s alleged paramour, Ms Hickey (NO relation…I think!). An injunction was granted restraining the broadcast on the basis that there was insufficient public interest.
The judge, of course, accepted that the story was interesting (in that ‘prurient’ way identified above). However, he found that it did not bear on Mr Chappell’s ability to perform as Australian Captain, or in any other professional capacity. Likewise, Mr Chappell had never held himself out as the standard bearer of family values. It was not suggested he was hypocritical.
For the Chappell case, see Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153
In short, the notion of public interest must extend beyond the titillating, and cause us to reflect on matters relevant to our welfare as a society.
The current case before the AFL Tribunal is not about several players, likely from different clubs, who failed drug tests on an ad hoc basis. This is a case about whether a systemic program implemented by one AFL Club, involving much of its playing list for a significant period of time, led to the violation of anti-doping rules. The lessons from this case have the potential to affect the integrity of the competition, and the welfare of its participants, as a whole.
The word “integrity” appears 65 times in the 2013 AFL Annual Report. As ASADA submitted in the Supreme Court (when seeking orders to issue subpoenas), the AFL must maintain integrity in the AFL for its commercial success to prosper.
The impact of integrity issues such as this could certainly justify an open hearing as being in the public interest, stated in the most meaningful sense.
Otherwise, the Chairman’s decision sensibly reflects some key differences between a tribunal and a court. Importantly, a tribunal faces greater liability risk for allegations aired in its forum, and can be contrasted to special protections given to participants in judicial proceedings.
The AFL Tribunal is a creature of contract, not statute. It is not a court. Therefore, allegations published within the Tribunal are not protected by absolute privilege. This is the defamation defence enabling people to say horrible things about each other in Parliament, courts, or statutory tribunals.
Because Tribunal proceedings lack the status of judicial proceedings, this also means there is no ‘get-out’ clause for any breach of the privacy principles, available to participants before the courts.
It follows that there are sensible, important reasons why the AFL Tribunal should hold hearings in private.
Indeed, arbitrations are frequently conducted this way. One could therefore add that this approach is common for adjudications the product of an agreement by the parties. As to whether the AFL proceedings constitute a commercial arbitration, well, that is a separate question…
The Chairman was also influenced by the prospect that some witnesses might be less inclined to give evidence if the hearing was not conducted in private.
One contrasts this to the Oscar Pistorius case, where an application for media coverage in an open hearing was granted despite this risk, and despite the nature of the charges Pistorius faced (see previous post here).
In the Pistorius case, open coverage was considered an important tool for showing democracy at work, given considerable public skepticism about the legal process in South Africa.
Similarly, in the current matter before the AFL Tribunal, media organisations referred to the prospect of speculation, rumour and innuendo if a closed-door hearing were to prevail. However, in this case, the Chairman was not persuaded by these arguments.
Managing a closed court
To meet the demand for information, and possibly to mitigate the risk of the speculation, rumour and innuendo caused by leaks, the Chairman committed to providing detailed reasons for its decision (which many tribunals are not required to do). Mr Jones stated this would involve a review of the evidence and the issues, and its conclusions.
Mr Jones also stated that the Tribunal intends to publish, during the course of the hearing, regular statements informing the public of progress.
The hearing into whether 34 Essendon players and a support person committed anti-doping rule violations is due to commence next Monday, 15 December 2014. Based on some comments made on behalf of the AFL in the Supreme Court, it appears unlikely that any witnesses will be called before January 2015.