Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority
[2014] FCA 1019
•19 September 2014
FEDERAL COURT OF AUSTRALIA
Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019
Citation: Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019 Parties: ESSENDON FOOTBALL CLUB (ACN 004 286 373) v CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY
JAMES ALBERT HIRD v CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY
File number(s): VID 327 of 2014
VID 328 of 2014Judge: MIDDLETON J Date of judgment: 19 September 2014 Catchwords: STATUTORY INTERPRETATION – general principles – principle of legality – identification of statutory purpose – approach when statute based upon international conventions and agreements – modern approach to statutory interpretation – express statutory powers and incidental powers.
ADMINISTRATIVE LAW – whether power used for improper purpose – test to apply when multiple purposes.
JUDICIAL REVIEW – nature of judicial review – whether relief is discretionary – delay – acquiescence – utility – inevitable outcome – impropriety of applicant – public policy.
PRIVILEGE – nature of privilege against self-incrimination – contractual abrogation or curtailment –statutory abrogation or curtailment – need to invoke privilege against self-incrimination – limitations on extent of protection given by privilege against self-incrimination.
WORDS AND PHRASES – “in connection with” – “for the purposes of”.
Legislation: Australian Postal Corporation Act 1989 (Cth)
Australian Sports Anti-Doping Authority Act 2006 (Cth)
Australian Sports Anti-Doping Authority Amendment Act 2013 (Cth)
Australian Sports Anti-Doping Authority Regulations 2006 (Cth)
Criminal Code Act 1995 (Cth)
Customs Administration Act 1985 (Cth)
Judiciary Act 1903 (Cth)
Privacy Act 1988 (Cth)
Public Service Act 1999 (Cth)Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Anti-Doping Rule Violation Panel v XZTT (2013) 214 FCR 40; [2013] FCAFC 95
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Attorney-General v Directors of the Great Eastern Railway Co (1880) 5 App Cas 473
Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
Bropho v Western Australia (1990) 171 CLR 1
Cabal v United Mexican States (No 3) (2000) 186 ALR 188; [2000] FCA 1204
Clough v Leahy (1904) 2 CLR 139
Coco v The Queen (1994) 179 CLR 427
Commissioner of Taxation v Consolidated Media Holdings Ltd (ACN 009 071 167) (2012) 293 ALR 257; [2012] HCA 55
Comptroller-General of Customs v Disciplinary Appeal Committee (1992) 35 FCR 466
Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385
Day v Commissioner, Australian Federal Police (2000) 101 FCR 66; [2000] FCA 1272
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Flanagan v Australian Federal Police (1996) 60 FCR 149
Kazar v Duss (1998) 88 FCR 218
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
Lansen v Minister for Environment and Heritage (2008) 174 FCR 14
Lee v New South Wales Crime Commission (2013) 87 ALJR 1082; [2013] HCA 39
Lee v The Queen (2014) 308 ALR 252; [2014] HCA 20
Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346
McGuinness v Attorney-General (Vic) (1940) 63 CLR 73
Meyers v Casey (1913) 17 CLR 90
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1
NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; (2006) 231 CLR 52
New South Wales v Kable (2013) 298 ALR 144
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Potter v Minahan (1908) 7 CLR 277
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42
Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238
Taylor v The Owners – Strata Plan No 11564 (2014) 306 ALR 547; [2014] HCA 9
United State v Fisher 6 US 358 (1805)
Ward v Commissioner of Police of the Metropolis [2006] 1 AC 23
Williams v Commonwealth (2012) 248 CLR 156; [2012] HCA 23
Williams v Keelty (2001) 111 FCR 175Date of hearing: 11, 12, 13 August 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 500 Counsel for the Applicant in VID 327 of 2014: Mr N J Young QC with Dr C Button and Ms E Murphy Solicitor for the Applicant in VID 327 of 2014: Maurice Blackburn Counsel for the Applicant in VID 328 of 2014: Mr P J Hanks QC with Mr N Harrington and Ms R Walsh Solicitor for the Applicant in VID 328 of 2014: Ashurst Australia Counsel for the Respondent: Mr T Howe QC with Dr S B McNicol QC and Mr D Star Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 327 of 2014
BETWEEN: ESSENDON FOOTBALL CLUB (ACN 004 286 373)
ApplicantAND: CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY
Respondent
JUDGE:
MIDDLETON J
DATE OF ORDER:
19 SEPTEMBER 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Unless a party notifies in writing the Court by 4.00 pm on Wednesday 1 October 2014, indicating opposition to this order as to costs, the Applicant pay the Respondent’s costs of and in connection with the proceeding to be taxed in default of agreement.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 328 of 2014
BETWEEN: JAMES ALBERT HIRD
ApplicantAND: CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY
Respondent
JUDGE:
MIDDLETON J
DATE OF ORDER:
19 SEPTEMBER 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Unless a party notifies in writing the Court by 4.00 pm on Wednesday 1 October 2014, indicating opposition to this order as to costs, the Applicant pay the Respondent’s costs of and in connection with the proceeding to be taxed in default of agreement.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 327 of 2014
BETWEEN: ESSENDON FOOTBALL CLUB (ACN 004 286 373)
ApplicantAND: CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY
Respondent
JUDGE:
MIDDLETON J
DATE:
19 SEPTEMBER 2014
PLACE:
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 328 of 2014
BETWEEN: JAMES ALBERT HIRD
ApplicantAND: CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY
Respondent
JUDGE:
MIDDLETON J
DATE:
19 SEPTEMBER 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[1]
THE RELIEF SOUGHT AND THE GROUNDS OF THE APPLICATIONS........ .......
[7]
THE ISSUES........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[15]
PARTIES AND OTHER INTERESTED PARTICIPANTS........ ........ ........ ........ ........ ...
[18]
Mr Hird........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[19]
Essendon........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[26]
The CEO........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[30]
ASADA........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[34]
The AFL........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[35]
The 34 Players........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[36]
PRELIMINARY OBSERVATIONS ON THE CONTRACTUAL REGIME........ .......
[51]
The Player Rules........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[53]
The AFL Code........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[59]
WITNESSES........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[69]
FEDERAL GOVERNMENT INVOLVEMENT........ ........ ........ ........ ........ ........ ........ .....
[79]
FACTS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[82]
Background and establishment of the “joint investigation”........ ........ ........ ........ ........ .
[83]
Assurances to the players........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[102]
Interview process........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[120]
Legal concerns........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[151]
The Interim Report........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[159]
Support of, and co-operation with, the “joint investigation” by Essendon, Mr Hird and the 34 Players........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[227]
“The Show Cause Pack” leading to the issue of the Notices........ ........ ........ ........ .......
[249]
FINDING OF SALIENT FACTS RELEVANT TO THE SUBSTANTIVE ISSUE.......
[255]
SOME LEGAL PRINCIPLES........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[257]
Judicial Review........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[258]
Remedy and discretion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[261]
Statutory construction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[262]
Authority of ASADA........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[273]
Privilege against self-incrimination........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[279]
THE LEGISLATIVE REGIME........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[295]
International Conventions and Instruments........ ........ ........ ........ ........ ........ ........ ........ ..
[296]
The General Anti-Doping Convention 1994........ ........ ........ ........ ........ ........ ........ ....
[298]
UNESCO International Convention Against Doping in Sport 2005........ ........ .....
[302]
The World Anti-Doping Code 2009........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[314]
The International Anti-Doping Arrangement 2011 - 2014........ ........ ........ ........ .....
[324]
Second Reading Speech for the ASADA Amendment Bill 2013........ ........ ........ .....
[330]
Legislative history........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[341]
The Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[345]
Functions and powers of the CEO (and ASADA)........ ........ ........ ........ ........ ........ ....
[346]
Relevant provisions of the amended Act: new powers........ ........ ........ ........ ........ ......
[359]
Access to, and use of, information........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[368]
The NAD Scheme........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[372]
Exercising powers under the NAD Scheme........ ........ ........ ........ ........ ........ ........ ......
[377]
Recording and disclosure of information under the NAD Scheme........ ........ ........ .
[384]
CONTENTIONS OF ESSENDON AND MR HIRD........ ........ ........ ........ ........ ........ ......
[398]
Power to conduct a “joint investigation”........ ........ ........ ........ ........ ........ ........ ........ .......
[399]
Unlawful disclosure of information........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[413]
Improper purpose........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[418]
Interim Report........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[445]
DISCRETIONARY CONSIDERATIONS........ ........ ........ ........ ........ ........ ........ ........ .......
[466]
CONCLUSION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[497]
INTRODUCTION
In early February 2013, the Chief Executive Officer (‘CEO’) of the Australian Sports Anti-Doping Authority (‘ASADA’) and the Australian Football League (‘the AFL’) agreed to conduct what was referred to by them as a “joint investigation” into the Essendon Football Club (‘Essendon’) players and personnel involved in a supplements program implemented by Essendon in 2011 and 2012. The investigation may be referred to as a “joint investigation”, but whatever label is given to the investigation is of little relevance. The important enquiry is to consider the nature, purpose and conduct of the investigation itself.
The investigation, from ASADA’s point of view, was part of a wider investigation by ASADA under the Australian Sports Anti-Doping Authority Act 2006 (Cth) (‘the Act’) and Sch 1 (‘the NAD Scheme’) of the Australian Sports Anti-Doping Authority Regulations 2006 (Cth) (‘the Regulations’).
In these proceedings (which were heard together), Essendon and Mr James Hird essentially allege that the CEO and ASADA had no power to conduct the investigation in the way it was conducted (involving the use by ASADA of AFL “compulsory powers” and unauthorised disclosure of information), that the investigation was undertaken for improper purposes, and that ASADA breached its confidentiality obligations during the course of the investigation and in the provision to the AFL of an interim report.
ASADA has very important national and international functions to perform. The fight against doping requires constant vigilance, upgrading of investigatory techniques, and well-resourced and co-ordinated authorised bodies to educate, monitor, investigate and prosecute in appropriate situations. The adoption of innovative processes and methods of investigation is to be strongly supported. ASADA and a “sporting administration” or “sporting administration body” (such as the AFL) may need to co-operate with each other for the purposes of implementing their own responsibilities. However, all statutory authorities (including ASADA) must comply with the rule of law and proceed only in a manner (expressly or impliedly) authorised by law. The essential question in these proceedings is whether ASADA has so complied with the rule of law in conducting, in the manner and for the purposes it did, the investigation.
These proceedings were issued the day after the issuing of notices (‘the Notices’) to 34 then current and former players at Essendon (‘the 34 Players’) under cl 4.07A of the NAD Scheme. Putting aside disciplinary action taken by the AFL against Essendon and Mr Hird, the first action relevantly taken by ASADA in connection with possible contraventions of the anti-doping rules was by the issuing of the Notices, following upon the investigatory work undertaken by ASADA in the course of the investigation. The decision to issue the Notices was based substantially upon information that was obtained through “the compulsory powers” of the AFL and gathered in the course of the investigation. However, the Notices were issued by the CEO and not the AFL, nor in conjunction with the AFL. It was solely the decision of the CEO to issue the Notices. Similarly in relation to the disciplinary action taken by the AFL, such action was taken by the AFL itself, not in conjunction with the CEO or ASADA.
The focus of these proceedings is upon ASADA, and its conduct and purpose in carrying out the investigation, and in receiving the co-operation of the AFL.
THE RELIEF SOUGHT AND THE GROUNDS OF THE APPLICATIONS
Essendon seek declarations and injunctive relief, but primarily seek to have the Notices set aside. Mr Hird also seeks declarations and injunctive relief, seeking to prevent any similar notice being issued under cl 4.07A of the NAD Scheme in future.
More particularly, Essendon and Mr Hird (to the extent relevant to their own specific claims), seek the following relief:
(a)A declaration that the investigation conducted by ASADA into Essendon and players who were on the Essendon playing list during the 2012 football season and which was referred to by ASADA as part of “Operation Cobia” was ultra vires the Act, the Regulations and the NAD Scheme.
(b)A declaration that ASADA, by providing the document it called an “interim report” (‘the Interim Report’) including any versions or drafts thereof, to the AFL:
(i)acted in breach of the confidentiality obligations imposed on ASADA by the Act (ss 13(1)(f) and (g) and s 71) and the NAD Scheme (cl 4.21): and
(ii)acted for purposes extraneous to those of ASADA in furthering its own investigation into possible violations of the anti-doping rules.
(c)An injunction restraining the CEO from issuing to Mr Hird a notice under cl 4.07A(2) of the NAD Scheme arising from or relying on information obtained in the investigation.
(d)An injunction restraining the CEO from issuing any further notice under cl 4.07A(2) of the NAD Scheme arising from or relying on information obtained in the investigation to any Essendon player.
(e)A permanent injunction restraining the CEO from using any information obtained in the investigation for any purpose under the Act, the Regulations and the NAD Scheme.
(f)An order setting aside all notices issued by ASADA to the 34 Players purportedly pursuant to cl 4.07A(2) of the NAD Scheme.
(g)Further or alternatively:
(i)an order permanently staying the operation of the Notices; or
(ii)an injunction restraining the CEO from requiring a response to, or otherwise taking any action in reliance upon, the Notices.
The grounds of the applications are as follows:
(a)At all relevant times up to and including 31 July 2013, cl 3.27(1) of the NAD Scheme, as contemplated by s 13(1)(f) of the Act, empowered ASADA to conduct investigations of possible anti-doping rule violations that may have been committed by athletes or support persons.
(b)Neither the Act, the Regulations nor the NAD Scheme authorised ASADA to conduct a “joint investigation” with any other entity, including a sporting administration body.
(c)At all relevant times up to and including 31 July 2013, the conducting of a “joint investigation” by ASADA was inconsistent with:
(i)the constraints imposed on “entrusted persons” (including members of ASADA staff) by s 71 of the Act relating to the disclosure of NAD Scheme personal information; and
(ii)the limited circumstances in which cl 4.21 of the NAD Scheme, read with s 13(1)(g) of the Act, permitted disclosure of that information to a sporting administration body — namely, where:
(a)the information was information of the kind described in cl 4.21(1) of the NAD Scheme; and
(b)the disclosure was for the purpose of or in connection with an investigation into possible violations of the anti-doping rules within s 13(1)(g) of the Act;
and therefore ASADA’s conduct was ultra vires the Act, the Regulations and the NAD Scheme.
(d)In about February 2013, ASADA and the AFL entered into an agreement whereby ASADA and the AFL would conduct, each with the aid of the other, what both ASADA and the AFL thereafter described as a “joint investigation”.
(e)From February 2013, despite the absence of any power in ASADA to conduct a joint investigation and the constraints on the disclosure of information by members of ASADA staff, ASADA purported to conduct with the AFL a joint investigation into Essendon, its players and officials in respect of allegations of anti-doping rule violations under the Act.
(f)In the course of the joint investigation and before 1 August 2013, members of ASADA staff and employees of the AFL jointly interviewed Mr Hird and the Essendon players, and represented the investigation as:
(i)a joint investigation between the AFL and ASADA; and
(ii)an investigation to which Essendon, Mr Hird and the Essendon players were compelled to provide information in answer to questions asked by members of ASADA staff and employees of the AFL.
(g)Further, in the course of the joint investigation:
(i)ASADA provided the AFL with immediate access to confidential information provided by Mr Hird, Essendon and the Essendon players at interviews by permitting AFL personnel to attend, jointly conduct, and tape record those interviews for purposes extraneous to ASADA’s investigation; and
(ii)ASADA provided the AFL with access to documents and records obtained by ASADA in the course of its investigation and permitted the AFL to use this information for purposes extraneous to ASADA’s investigation.
(h)In August 2013, ASADA prepared and published the Interim Report based on information obtained during the joint investigation. The Interim Report was provided to a number of persons and entities who were neither athletes nor persons otherwise permitted by the Act or the Regulations to receive the information contained in the Interim Report.
(i)By providing the Interim Report, including any versions or drafts thereof, to the AFL, ASADA:
(i)acted in breach of the confidentiality obligations imposed on ASADA by the Act (ss 13(1)(f) and (g) and s 71) and the NAD Scheme (cl 4.21); and
(ii)acted for extraneous purposes to those of ASADA.
(j)Because:
(i)ASADA lacked any power to conduct the joint investigation;
(ii)the joint investigation contravened the constraints on disclosure of NAD Scheme personal information; and
(iii)the Interim Report was divulged and communicated by ASADA in breach of its obligations of confidentiality and for purposes extraneous to the furthering of ASADA’s own investigation,
the information collected during the joint investigation (being the information on which the Interim Report was based) cannot qualify as evidence or information received by the CEO for the purposes of cl 4.07A(1) of the NAD Scheme, as it has stood since 1 August 2013.
(k)In the absence of such evidence or information, the CEO has no power, under cll 4.07A(1) and (2) of the NAD Scheme, to:
(i)determine that there is a possible non-presence anti-doping rule violation that warrants action by the CEO; or
(ii)give a notice to Mr Hird or any Essendon player of that possible non-presence anti-doping rule violation.
(l)All notices purportedly issued by ASADA to Essendon players under cl 4.07A of the NAD Scheme are invalid.
(m)Mr Hird is and was at all relevant times employed as coach of Essendon, a club registered with the AFL and subject to the AFL Regulations and the Player Rules.
(n)The issuing by the CEO of any notices to Mr Hird or to any Essendon player arising from or relying on information obtained in the joint investigation is likely to cause damage to Mr Hird’s and to Essendon’s reputation and business interests.
There is no dispute that in carrying out the investigation with the co-operation of the AFL, the CEO and ASADA obtained a benefit they did not otherwise have under the Act or the NAD Scheme. Whilst the CEO and ASADA had no power to compel and sanction, it obtained the benefit of what the AFL had, namely the contractual power of the AFL:
(a)to compel Essendon players and personnel to participate in an AFL investigation and to attend an interrogative interview; and
(b)to direct, under threat of AFL sanction, that an Essendon player or personnel respond and answer every question asked of him or her.
In the course of the investigation, ASADA and the AFL agreed to use the powers of compulsion available to the AFL under the AFL Player Rules (‘the Player Rules’) and AFL Anti-Doping Code (‘the AFL Code’), in order to compel Essendon players and personnel to attend interviews and answer questions, and effectively disclose (to the extent lawful) information collected in the course of the investigation.
The CEO admitted that the AFL’s compulsory powers enabled the AFL to compel Essendon players and personnel to provide information as directed by the AFL, including by attending interviews (at which ASADA and the AFL were present), in circumstances where interviewees were not then able to claim the privileges against self-incrimination or self-exposure to a penalty.
The CEO denies any unlawful conduct, and contends the decision to issue the Notices was valid.
Further, the CEO says that the following factors warrant refusal of any relief even if the CEO’s decision to issue the Notices was based substantially upon information obtained ultra vires the Act, the Regulations and the NAD Scheme or otherwise unlawfully obtained:
(a)Even if the CEO or ASADA obtained information unlawfully in the course of the investigation, that is a factor which the law recognises can be taken into account (and should be left to be taken into account) by decision-makers who have responsibility for making downstream decisions under the Act and NAD Scheme.
(b)Even if the CEO or ASADA obtained information unlawfully in the course of the investigation, the grant of relief should be refused on discretionary grounds because the information in question, having been obtained by the AFL (as to which there is no alleged illegality), would have to be provided (or re-provided) by the AFL to ASADA in any event by virtue of requirements contained in the NAD Scheme (see cl 2.04) and the AFL Code.
(c)Even if the CEO or ASADA obtained information unlawfully in the course of the investigation, the grant of relief should be refused on discretionary grounds because Essendon and Mr Hird agreed, by their adoption of the Player Rules (which incorporate the AFL Code and which form part of the contractual arrangements between the AFL, Mr Hird and Essendon), that information obtained by the AFL in relation to possible anti-doping rule violations may be provided by the AFL to ASADA.
(d)Even if the CEO or ASADA obtained information unlawfully in the course of the investigation, the grant of relief should be refused on discretionary grounds because ASADA could lawfully obtain all of the exact same information (again) by the issue of disclosure notices under Div 3.4B of the NAD Scheme, and then issue fresh show-cause notices to the 34 Players.
(e)Even if the CEO or ASADA obtained information unlawfully in the course of the investigation, the grant of relief should be refused on discretionary grounds because:
(i)Both Essendon and Mr Hird requested that the AFL and ASADA conduct an investigation in early February 2013 and thereafter expressed support for the conduct of the investigation;
(ii)Both Essendon and Mr Hird knew from early 2013 that the AFL and ASADA proposed to conduct, and did conduct, an investigation which would involve ASADA being provided with information obtained as a result of the AFL’s exercise of its compulsory powers;
(iii)Both Essendon and Mr Hird were legally represented at all material times and advertently declined to take action to vindicate the rights they now assert;
(iv)Both Essendon’s and Mr Hird’s failure and delay in taking steps to vindicate the rights they now assert led to the ongoing conduct of the investigation over many months and to the acquisition by ASADA of a vast amount of information, all of which information Essendon and Mr Hird now seek to permanently enjoin the use of or reliance on (in circumstances where, had Essendon and Mr Hird taken timely action to enforce the rights they now assert, alternative steps could have been taken by ASADA to acquire the same information lawfully); and
(v)Both Essendon and Mr Hird, the AFL, followers of the AFL competition, and the public at large are all aware of the existence of very serious issues surrounding adherence to anti-doping rules by Essendon and Mr Hird, in circumstances where Essendon and Mr Hird brought the game into disrepute by failing to implement proper governance and accountability mechanisms with respect to enforcement of those rules. There is, therefore, a compelling public interest against the grant of relief.
THE ISSUES
Putting aside the question of whether relief ought to be granted to either Mr Hird or Essendon in light of their conduct and the utility of any relief, the issues in the proceedings are as follows:
(a)Did ASADA have the power to conduct the “joint investigation” with the AFL, as alleged?
(b)Did ASADA conduct the investigation for improper purposes, in particular:
(i)in order to circumvent the limitations on its own powers by obtaining the benefit of the AFL’s “compulsory powers” in aid of its own investigation; or
(ii)in order to assist the AFL to investigate and take action for the AFL’s own purposes?
(c)Did ASADA breach the obligations of confidentiality or restrictions on disclosure imposed on it under its governing legislation in the conduct of the investigation and in the provision of information from the investigation, including the Interim Report, to the AFL and Essendon?
(d)Did ASADA act for improper purposes in providing information from the investigation, including the Interim Report, to the AFL and others?
Most of the essential facts to determine these issues are not in dispute, and the chronology of events and circumstances giving rise to the dispute between the parties can be ascertained primarily from the documentation before the Court.
However, before I go to that material and other evidence before the Court, I will first proceed to introduce the parties and other interested participants, and to make some preliminary observations.
PARTIES AND OTHER INTERESTED PARTICIPANTS
Turning first to the parties. There is no dispute that both Essendon and Mr Hird, as the Applicants, have standing to bring their respective proceedings.
Mr Hird
Mr Hird is the Senior Coach of Essendon, a club licensed by the AFL and he is subject to the AFL Rules, the AFL Regulations, the Player Rules and the AFL Code.
In his capacity as Senior Coach of Essendon, Mr Hird has supervised the preparation, training and performance of personnel who participated as players for Essendon in the Australian Rules Football competition in the 2012 season.
On 13 August 2013, Mr Hird was notified that the AFL had charged him under r 1.6 of the Player Rules. The Notice of Charge stated:
Contrary to Rule 1.6 of the Rules, in the period from about August 2011 to about July 2012, you engaged in conduct unbecoming or likely to prejudice the interests or reputation of the Australian Football League or to bring the game of football into disrepute.
At the same time that Mr Hird received the Notice of Charge, he was provided with a Statement of Grounds. It appears the Statement of Grounds was revised but the revisions are irrelevant for the purposes of these proceedings. It suffices to say that the conduct complained of included failure by Mr Hird to take adequate action to ensure the players were not exposed to significant risks to their health and safety as well as the risk of using substances that were prohibited by the AFL Code and the World Anti-Doping Code (‘the World Code’). It was alleged that players were administered substances that were prohibited by the AFL Code and the World Code.
On 27 August 2013, Mr Hird entered into a deed of settlement (‘the Deed’) with the AFL. Recital B of the Deed provided as follows:
Between February 2013 and August 2013, the AFL and the Australian Sports Anti-Doping Authority (ASADA) conducted a joint investigation (the Investigation) into EFC’s program relating to the administration of supplements to its players in preparation for, and during, the 2012 AFL premiership season (the Program).
In the Deed it was agreed by the AFL and Mr Hird, amongst other things, that he did not take sufficient steps to avoid there being a risk that players may have been administered substances that were prohibited by the AFL Code and the World Code.
Mr Hird said in the course of cross-examination that he entered into the Deed “under great duress, threats and inducement” and in the best interests of Essendon and its players. However, the Deed remains a valid agreement between the AFL and Mr Hird and has been implemented by the AFL imposing upon Mr Hird a 12-month suspension, which Mr Hird accepted.
Essendon
Essendon is a club licensed to field a team in the Australian Rules Football competition conducted by the AFL, and is also subject to the AFL Regulations, the AFL Rules and the AFL Code.
Essendon is the employer of the 34 Players who have participated in the AFL competition in the 2012 season, many of whom remain employed as players for Essendon in the 2014 season. Essendon is also the employer of other personnel engaged in connection with Essendon’s participation in the AFL.
On 21 August 2013, charges were laid against Essendon for a breach of r 1.6 of the Player Rules. The charge and the Statement of Grounds were in similar terms to those laid against Mr Hird.
On 27 August 2013, the Essendon and the AFL entered into a similar settlement to that which Mr Hird entered into with the AFL.
The CEO
The CEO (the Respondent to both proceedings) was appointed pursuant to s 20D of the Act, and has the functions set out in s 21 of the Act, which functions include such functions as are conferred by the NAD Scheme (s 21(1)(b)).
The CEO has the power, conferred by s 22 of the 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 Act and cl 3.27(1) of the NAD Scheme to “investigate possible anti-doping rule violations” (as defined in the NAD Scheme).
The CEO is also authorised by s 13(1)(g) of the Act and cl 4.21 of the NAD Scheme to disclose “non-entry information” obtained during such an investigation to, amongst others, “a sporting administration body”, subject to certain conditions (to which I will return). The CEO is — subject to exceptions (see relevantly ss 71(2)(a), (b) and (c)) — prohibited by s 71 of the Act from disclosing “NAD scheme personal information” (as defined in s 4 of the Act) to any other person.
I now mention other interested participants in the events relevant to these proceedings.
ASADA
ASADA is not itself a party to these proceedings. ASADA was established under s 20 of the Act, consisting of the CEO and ASADA staff (s 20A), and has the function of “assist[ing] the CEO with the performance of his or her functions” (s 20B).
The AFL
The AFL is also not a party to these proceedings. No relief is sought against the AFL. No Commissioner of the AFL, nor any agent or employee of the AFL has given evidence. No contention has been made that the contractual “compulsory powers” relied upon by the AFL were unenforceable at common law or because of any legislative provision. For instance, it has not been suggested or pleaded by any party that the “compulsory powers” in the contractual arrangements between the AFL, Mr Hird and the 34 Players are unenforceable on the basis they are contrary to public policy or that they are unconscionable. In fact, the parties, ASADA, the AFL and the 34 Players all regarded the “compulsory powers” of the AFL as being valid and enforceable, and each acted accordingly.
The 34 Players
The 34 Players are not parties to these proceedings. No party sought to join any of the 34 Players.
The 34 Players did not seek to be joined. The 34 Players did give an undertaking to the Court in the following terms:
The 34 current and former players of the Essendon Football Club who received notices under clause 4.07A of the National Anti-Doping Scheme (the 34 Players) undertake to the Court and the Respondent not to institute proceedings against the Respondent in any court of competent jurisdiction to claim that the investigation was ultra vires the Australian Sports and Anti-Doping Authority Act 2006 or the regulations thereto including the NAD Scheme, or was otherwise unlawful, or that the Respondent acted in breach of confidentiality obligations and for extraneous purposes, and otherwise agree to be bound by this Court’s judgment in relation to the aforesaid claims made by the Applicant in the substantive proceeding including in any appeals therefrom.
The Court granted leave to the 34 Players to file and serve any evidence or submissions they may seek to rely upon at the hearing of these proceedings. The 34 Players did not seek to be heard on the substantive issues in these proceedings. They only sought to be heard on the question and nature of the relief to be granted by the Court, should Essendon or Mr Hird succeed on the substantive issues in dispute.
The 34 Players did not file any evidence.
The 34 Players have a significant interest in these proceedings and the relief sought, particularly in setting aside the Notices which directly impact upon them. The circumstances in which the 34 Players find themselves is worthwhile to detail at this stage, by reference to the NAD Scheme.
At all relevant times:
(a)clause 4.07A of the NAD Scheme authorised the CEO to notify the 34 Players in writing of a possible non-presence anti-doping rule violation where the CEO received evidence or information showing such a possible violation and determines, after a review, that there is such a possible violation that warrants action;
(b)clause 4.09 of the NAD Scheme then authorised the Anti-Doping Rule Violation Panel (‘the ADRVP’) to consider any submissions by a recipient of a notice under cl 4.07A and to decide whether to make an entry on the Register of Findings (‘the Register’) maintained by ASADA;
(c)clause 4.17 of the NAD Scheme directed the CEO to give written notice of an entry on the Register to specified organisations and to the World Anti-Doping Agency (‘WADA’); and
(d)clause 4.12 of the NAD Scheme allows an athlete or support person to whom an entry on the Register relates to apply to the Administrative Appeals Tribunal for review of the ADRVP’s decision to make the entry.
Pursuant to the NAD Scheme, the issuing of the Notices to the 34 Players triggered the commencement of a “response period”. It is within this period that the recipient of a show cause notice has the right to make a submission to the CEO as to why that person’s name ought not be entered onto the Register (see cl 4.07A(3)(b)).
Upon the conclusion of the response period, the ADRVP “must, as soon as practicable, consider any submission made by the [recipient of the notice] and decide whether or not to make an entry on the Register”. In the ordinary course, entry onto the Register is made if the ADRVP make a “finding”.
The NAD Scheme definition of a “finding” sets a low threshold to be met, namely that “it is possible that an athlete … has committed a non-presence anti-doping rule violation” (see cl 1.05A(b)).
The ADRVP’s function in respect of “findings” is limited. It is only required to “satisfy itself as to the immediate statutory prerequisites referred to in cl 4.[0]9 of the NAD Scheme before exercising its function”: Anti-Doping Rule Violation Panel v XZTT (2013) 214 FCR 40; [2013] FCAFC 95 at [84]. The Panel is not permitted nor empowered to consider the validity of the notice; it is only to determine whether or not on the material before it there was a possible violation as asserted to it. The ADRVP is not the decision-maker who can relevantly take into account the lawfulness of the investigation that yielded material placed before it in discharging its own separate function.
In addition to the ADRVP’s making of a “finding” and determining to place a person onto the Register, under the NAD Scheme, it is the CEO or ASADA that have the power to make recommendations to sporting organisations as to the consequences of the possible violation, and to determine to make public an entry on the Register.
If the Notices are left to stand, and the information upon which the decision to issue the Notices was unlawfully obtained the following consequences could occur.
First, upon consideration of any material provided to the ADRVP, it may determine to make an entry in relation to the 34 Players on the Register (see cl 4.07A(3)(d)), and ASADA may publicly disclose details of that entry (see cl 4.07A(3)(g)).
Secondly, the making of a finding and the entry of any one player onto the Register would likely result in the AFL issuing an infraction notice to that player pursuant to the Player Rules and the AFL Code. Such infraction notice could be issued with respect to the alleged substance Thymosin Beta 4 (the substance to which attention has been focussed), which for the purposes of the AFL Code, is a “non-specified substance”.
Finally, the issuing of such an infraction notice could have consequences for a player, including immediate suspension.
PRELIMINARY OBSERVATIONS ON THE CONTRACTUAL REGIME
It must be recalled that the 34 Players, Essendon and Mr Hird are only obliged to adhere to the “compulsory powers” of the AFL because they have each agreed to do so by voluntarily and consensually being bound by a contractual regime. This all occurred well before the start of the investigation. No party sought to resile from their agreement to abide by the contractual regime at the commencement of, or during, the investigation.
Under the contractual regime, Essendon, its players and its personnel were all bound to observe the terms of the Player Rules and the AFL Code. The terms of the AFL Code provide that it forms part of the Player Rules and the AFL Regulations (cl 2.4).
The Player Rules
Essendon, its players and personnel were each bound to the Player Rules because:
(a)Essendon was bound to comply with the Player Rules pursuant to the terms of the licence under which it participates in the AFL competition;
(b)players entered into a Standard Playing Contract, which is a tripartite contract between the player, Essendon and the AFL, which provides that the player and Essendon agree to comply with and observe (among others) the Player Rules;
(c)players were required to be registered with the AFL pursuant to the Player Rules, and the relevant registration form also binds each player to observe the Player Rules; and
(d)Essendon’s personnel were also bound to observe the Player Rules pursuant to the terms of their registration forms.
It is a stated objective of the Player Rules to “supplement provisions of contracts of service between Players and their Clubs”.
Under r 1.5A of the Player Rules, the AFL Commission and the General Manager - Football Operations have a power (among other things):
(a)to inquire into, investigate and deal with any matter in connection with the AFL or the Player Rules and AFL Regulations or appoint any other person to do so; and
(b)to require and obtain production and take possession of all documents, records, articles or things in the possession of control or a person that are relevant to any inquiry or investigation in connection with (among other things) integrity or fairness of the AFL Competition or conduct which may be unbecoming or likely to prejudice the reputation or interests of the AFL or to bring the game into disrepute.
Under r 1.8, Essendon players and personnel must not (among other things):
(f)refuse or fail to attend or give evidence as directed at any inquiry, meeting hearing or appeal when requested to do so;
(g)refuse or fail to fully co-operate with any investigation conducted by the AFL under the AFL Rules & Regulations; or
(h)refuse or fail to produce any document, record, article or thing in the Person’s possession or control that are required to be produced in accordance with these Rules.
Although not directly relevant to the position of Mr Hird and the 34 Players, r 1.9 interestingly provided:
Privilege
Notwithstanding Rule 1.8(f), 1.8(g) and 1.8(h), a Person interviewed as a suspect, charged or arrested by a law enforcement agency in respect of a criminal offence shall not be required to produce any information, give any evidence or make any statement to the AFL if they establish that to do so would breach any privilege against self-incrimination, or legal professional privilege. This Rule does not limit any other AFL Rule & Regulation.
The AFL has the power to issue sanctions for breaches of the Player Rules: see Pt 16 of the Player Rules.
The AFL Code
The AFL Code applies to Essendon, the Essendon players and personnel: see cl 3.1 of the AFL Code.
Under cl 12.6 of the AFL Code, the AFL General Manager - Football Operations and the AFL Medical Officer have the power to investigate anti-doping rule violations or breaches of the AFL Code. Clause 12.6 provides:
The AFL General Manager - Football Operations and/or the AFL Medical Officer shall investigate the facts and/or circumstances surrounding any actual or alleged Anti Doping Rule Violation, or any actual or alleged other breach of this Code. Where ASADA does not already have knowledge of the alleged Anti-Doping Rule Violation, the AFL will immediately advise ASADA of the matter.
Clause 12.7 of the AFL Code requires players, clubs and officers (among others), upon the request of the AFL General Manager - Football Operations or AFL Medical Officer, to:
(a) fully co-operate with any investigation;
(b) fully and truthfully answer any question asked for the purpose of such investigation; and
(c) provide any document in their possession or control relevant to such investigation.
Under the contractual regime, Essendon, Mr Hird and the 34 Players agreed to the information sharing arrangements set out in cl 4 of the AFL Code.
They also agreed to be bound by cl 20.1 of the AFL Code which provides:
Each Player, Club, Officer and Official acknowledges that ASADA may perform functions under this Code, including without limitation:
(a) the provision of drug awareness or education lectures; and
(b) the functions specified under the ASADA Act.
By signing player registration forms the players acknowledged that the Player Rules (including the AFL Code) “are necessary and reasonable for the purpose of protecting and promoting the game of Australian football”.
The registration forms signed by Essendon personnel also contained the following:
The AFL will obtain and use personal information about you for the following purposes:
– …–Promoting and protecting the integrity and reputation of the AFL Competition and ensuring compliance with all AFL rules and regulations including but not limited to the AFL Regulations, AFL Anti-Doping Code and AFL Player Rules.
For these purposes or otherwise as required or authorised by law, the AFL may share personal information about you with third parties, such as law enforcement bodies, government authorities, the Australian Sports Anti-Doping Authority (ASADA) …
…APPLICANT’S CONSENT AND ACKNOWLEDGMENT
In making my application to be registered as a Club Football Official, I hereby:
–…
–Acknowledge and agree that I am subject to and bound by the AFL’s rules and regulations, including without limitation the AFL Regulations, the AFL Player Rules and the AFL Anti-Doping Code …
–Specifically consent to the AFL disclosing personal information about me to the following third parties and the following third parties disclosing personal information about me to the AFL for the purpose of preventing, detecting, deterring and investigating Anti-Doping Rule Violations … in the AFL competition:
– ASADA
(emphasis added)
A person who breaches the AFL Code is subject to sanctions provided by the AFL Code: see cll 3.2 and 14.
Pursuant to the combined effect of the Player Rules and the AFL Code, the 34 Players and Mr Hird were obliged to attend interviews and answer questions fully and truthfully, or face possible sanction by the AFL. Again, this was only because they had voluntarily accepted these obligations upon becoming a player or official.
The 34 Players and Mr Hird had agreed to subject themselves to compulsory interviews (the only reservation in respect of exercising any privilege against self-incrimination was in r 1.9). I will return later in more detail to this aspect of these proceedings.
WITNESSES
I should briefly refer to the witnesses. Mr Hird relied upon his own affidavits and was cross-examined. Essendon relied upon an affidavit filed by Mr Xavier Campbell (the current CEO of Essendon), who was cross-examined. The CEO relied upon the affidavits of Ms Aurora Andruska (the former CEO of ASADA), and Messrs Trevor Burgess (National Manager – Operations at ASADA) and Aaron Walker (an investigator at ASADA), who were cross-examined and an affidavit of Christopher McDermott (a lawyer on behalf of ASADA), who was not cross-examined.
The only witness whose credit was impugned was Ms Andruska. It was submitted by Essendon and Mr Hird that Ms Andruska was non-responsive, evasive and partisan. It was observed, as was the fact, that there were long pauses between the questioning of Ms Andruska and her responses.
I do not consider these criticisms, to the extent they impact on her veracity, can be sustained. Ms Andruska was a truthful witness. Ms Andruska was careful in all her responses, and in my view wanted to consider properly each question, seeking to provide a truthful answer. Ms Andruska provided convincing and credible explanations for the steps she or her investigators took in undertaking the co-operative arrangement between ASADA and the AFL for the purposes she outlined in her affidavit evidence. Ms Andruska was a very experienced public servant, and explained during the course of detailed cross-examination the approach undertaken by herself and investigators of ASADA and the AFL. The cross-examination traversed many areas of detail relating to various meetings and decisions made in the course of the investigation. I would have expected Ms Andruska to be careful in responding to the interrogation made of her on these matters, as indeed she was.
In some instances, Ms Andruska did take the opportunity to explain her position as to the propriety and purpose of ASADA’s conduct in the investigation, and her characterisation of the events which occurred. Having regard to the issues in these proceedings, and the challenge to the lawfulness of her own actions as CEO of ASADA, this was to be expected. In many instances, her evidence gave context to her file notes that were in evidence before the Court. Where necessary Ms Andruska took time to refer to her notes, which again was only to be expected. It was apparent from her evidence that she relied upon her staff, including legally qualified staff, and her investigators, in effectively guiding and conducting the investigation. As CEO, Ms Andruska was entitled to delegate certain administrative tasks to her staff, within the limits provided for by the Act, and the NAD Scheme. Obviously, during the course of the investigation, many decisions were properly left to the investigators within ASADA.
External or objective circumstances may raise doubt or put into question the reliability or credibility of the testimony of a witness. There is nothing in the evidence in these proceedings, properly characterised and put in context, that suggests Ms Andruska’s evidence was incorrect in relation to the salient facts which I find determinative of these proceedings.
There is no pleaded case alleged by either Essendon or Mr Hird that Ms Andruska as CEO improperly delegated any of her functions or powers, or in any other way abrogated her responsibilities.
There is no pleaded case that the CEO, as the repository of statutory powers, did not turn her own mind to the exercise of her powers or that in making her decisions did so on the bidding of others, being a separate ground entitling Essendon or Mr Hird to relief.
It has been suggested in submissions by Mr Hird and Essendon, based upon the cross-examination of Ms Andruska, that she did not make any decision to approve the conduct of the interviews, nor turn her mind to whether the establishment of the investigation met the requirements of the Act.
Whilst no formal decision was made to this effect, it is apparent from the evidence that the CEO and her lawfully appointed delegates within ASADA made various decisions as to the setting up of the investigation and its conduct.
It is important to recall that these proceedings do not involve a broad and general inquiry (outside the pleaded case) as to the general conduct of the investigation, nor the day to day activities of Ms Andruska or her investigators during the course of the investigation. I have come to the view that Ms Andruska was under some pressure from the then Federal Government and the AFL to bring the investigation to an end as soon as possible, and to assist the AFL so that the AFL could take disciplinary proceedings against Mr Hird and Essendon prior to the 2013 AFL finals season. However, I do not regard such pressure as giving rise to any dereliction by Ms Andruska in respect of her responsibilities, under the Act or the NAD Scheme.
FEDERAL GOVERNMENT INVOLVEMENT
For the purposes of these proceedings, I do not need to consider or comment on the propriety of the intervention made by the then Federal Government during the course of the investigation. Section 24 of the Act provides that the relevant minister may, by legislative instrument, give directions to the CEO in relation to the performance of his or her functions and the exercise of his or her powers. However, such a direction must not relate to a particular athlete, or a particular support person, who is subject to the NAD Scheme, or relate to the testing of a particular athlete under an anti-doping testing service, or safety checking service, being provided by the CEO under contract on behalf of the Commonwealth.
ASADA is to be independent from the influence of government, save for the power of the relevant Minister to give directions, by legislative instrument, as contemplated by s 24 of the Act. The Act does not empower the Minister to override the exercise of the CEO’s statutory powers in relation to a specific athlete, and requires any direction to be made by legislative instrument. Ministerial direction outside the specific permission given by the Act would normally be treated as impliedly forbidden.
This is not to say that the CEO may not discuss matters with the relevant Federal Government department, for instance in relation to financial resources and the general operation of ASADA. Further, one of the functions of the CEO is to advise the relevant minister about matters relating to any of his or her other functions referred to in s 21 of the Act: see s 21(1)(n).
FACTS
I now turn to a chronology of the relevant facts.
Background and establishment of the “joint investigation”
Prior to 2013, the Australian Crime Commission (‘the ACC’) had conducted an investigation known as “Project Aperio”, which examined the use of performance and image enhancing drugs, including the nature, extent and resulting harms of the involvement of organised crime in sport. Project Aperio primarily considered two major sporting codes in Australia — the AFL and the National Rugby League. In February 2013, the ACC published its report, titled “Organised Crime and Drugs in Sport”.
On 31 January 2013, ASADA and the AFL discussed certain matters arising from the ACC “Project Aperio”. Mr Paul Jevtovic of the ACC was in attendance. A briefing document was prepared, naming, amongst others, Essendon. Ms Andruska attended the meeting and took notes (as was her practice). The AFL attendees were Mr Andrew Demetriou (CEO), Mr Gillon McLachlan (Deputy CEO), and Mr Brett Clothier (Manager – Integrity Services).
Mr McLachlan asked: “Is it Essendon?” Mr Jevtovic replied: “say no more”. After that exchange, and by the display of body language, there was no doubt to those in the room that Essendon was the AFL club under suspicion. From here on, Essendon remained the focus of ASADA during the course of the investigation.
In this 31 January 2013 meeting, the AFL expressed its desire to “share” and “co-operate” with ASADA. There was a general discussion about an investigation, although the details as to the conduct of any investigation were not discussed.
As at this date, Ms Andruska had determined that ASADA (with or without the co-operation of the AFL) was going to investigate Essendon. As Ms Andruska explained, the investigation (called “Operation Cobia”) had been underway since 2011, and involved any club involved in using performance enhancing drugs.
On 1 February 2013, Mr Clothier telephoned Ms Andruska in order to discuss a strategy for an investigation. Mr Clothier adverted to the Player Rules and the powers therein. Ms Andruska responded with words to the effect of “we can use the AFL’s powers until we get our own powers”.
In early February 2013, ASADA commenced drafting what became known as a “plan” for the investigation.
At 9:00am on 5 February 2013, there was a second ACC briefing to the AFL and ASADA personnel.
At 11:50am on 5 February 2013, Mr Clothier attended a meeting with Mr McLachlan, Mr Evans (Chairman of Essendon), Mr Hird, and Mr Robson (then CEO of Essendon). Mr Clothier said that the AFL had received information from ASADA about Essendon. The information was about the high performance area of Essendon and the alleged dubious practices concerning supplements during 2012. At that meeting Mr Clothier said that “there will be a joint investigation”.
Later on 5 February 2013, at about 1.30 pm, Mr Robson telephoned Ms Andruska of ASADA. He said that he had briefed the players approximately two hours ago, and that he wanted a full and complete investigation. To that end, he told Ms Andruska that an Essendon press conference would take place later that day.
On 5 February 2013, Mr Clothier met with Mr John Nolan (an investigator at ASADA) and Mr Paul Simonsson (Director – Intelligence and Investigations at ASADA). Mr Clothier said the media were “onto Essendon” and that a press conference would occur later that day.
Later that day, Essendon announced, by way of press statement, that it requested an immediate investigation. In the statement, Essendon asked ASADA for its assistance in an investigation, and Essendon said it would co-operate. There is no evidence that Mr Hird played any role in the decision to invite ASADA and the AFL to investigate Essendon, or in the decision of Essendon to self-report to ASADA and the AFL. He publicly supported the investigation as announced, but said in evidence that he privately did not support Essendon self-reporting.
No doubt Mr Robson contacted the CEO of ASADA with the knowledge of Mr Evans and Mr Hird, which is consistent with Essendon’s public statements on 5 February 2013. On this day, Essendon held its first press conference on this matter (‘the Essendon Press Conference’). There were three persons present at the Essendon Press Conference; Mr Evans, Mr Robson and Mr Hird. Mr Evans made the following statements:
Over the last 48 hours, the Essendon Football Club has received information about supplements that have been given to our players as part of the fitness program in 2012.
Given the information we received and the questions it has raised, we have taken the following action:
Firstly we, consulted with our staff, briefed our Board and all our players.
Secondly, we contacted the AFL and early today we met with Gillon McLachlan and Brett Clothier to brief them, and to seek advice. Following that discussion we requested that the AFL commence an immediate investigation.
Thirdly, today the Essendon Football Club contacted ASADA, the Australian Sports Anti-Doping Authority and requested their assistance in an investigation, and we offered the full co-operation of everyone at the club. ASADA has informed us that they will commence the investigation immediately.
Of course, this is very distressing for our club, our Executive, our players and our board. We believe as a club that we have done everything to be compliant with the rules and regulations of the AFL and ASADA.
But, the integrity of the club is critical for the people sitting at this table - and of course for the broader Essendon family, and that is why we have moved quickly today to call the AFL and ASADA to seek a clean bill of health.
I appreciate that there is a lot of questions and many that we will not be able to answer today.
We want this investigation to go where it will, and our club at every level will co-operate. We believe that we have acted today in a sensible and responsible way, and we now want the investigation to take its course.
Clearly, Mr Evans was not only speaking for himself. The statements by Mr Evans were made for and on behalf of each of the individuals “sitting at th[e] table” with him, including Mr Hird, as representatives of Essendon. Mr Hird, although subject to the control of his employer, was publicly supporting the position taken by Mr Evans. The assurances given (“we offered the full co-operation of everyone at the club …”; “we want this investigation to go where it will …”) were assurances which would be taken to be given by Essendon and each of Mr Evans, Mr Robson and Mr Hird. There was no action taken by Mr Hird, verbally or otherwise, to suggest other than that he was in complete agreement with the statements by Mr Evans. Mr Hird publicly acquiesced in, and adopted, the request for an investigation by ASADA. I accept that Mr Hird had private misgivings about the extent of the co-operation indicated at the Essendon Press Conference. However, as he said in his evidence, he was aware that he had to co-operate with the investigation, having regard to the Player Rules and under instruction from his employer, Essendon. Mr Hird also considered he had nothing to hide, and was motivated to co-operate because he considered (taking into account advice he received), co-operating would benefit the Essendon players.
By the time of the Essendon Press Conference it would appear that ASADA had already determined to investigate Essendon (as part of a larger investigation), and that the investigation into Essendon would be an investigation calling upon the co-operation of the AFL.
There was an issue about whether the agreement to conduct the investigation was in response to a request from Mr Evans or whether ASADA had determined to conduct the investigation before Essendon made any overtures. Whether this was in fact so or not seems to me to have little relevance to the issues I need to determine. One thing is clear: Mr Hird and Essendon publicly spoke and acted in a way demonstrating their full co-operation with the investigation from its very early stages.
Shortly thereafter but before 8 February 2013, Deloitte Touche Tohmatsu (‘Deloitte’) was retained by the AFL to collect and analyse data obtained from Essendon.
On 9 February 2013, Ms Andruska and others met with Messrs Clothier, McLachlan, Evans and Robson. According to Ms Andruska, she understood there to be an “understanding” that there would be a “joint investigation” between the AFL and ASADA, and that ASADA would obtain information through the exercise by the AFL of its “compulsory powers”. Mr Richard Eccles, then Deputy Secretary of the Department of Regional Australia, Local Government, Arts and Sport was also present at the meeting.
At that meeting, Mr McLachlan of the AFL raised the possibility of AFL sanctions against Essendon and its personnel if any wrongdoing was found as a result of the investigation.
Assurances to the players
I will now deal with ASADA’s communications with the players prior to their interviews.
As the investigation was getting underway in early February 2013, the AFL was concerned about the interests of the Essendon players. Those concerns led to a period of negotiations, following which ASADA issued a statement and presented to the players on 20 February 2013. The presentation and statement were designed to give a level of comfort to players in co-operating with the investigation. The background to that statement and presentation is as follows.
On 10 February 2013, Mr Clothier of the AFL wrote to Mr Simonsson and raised an impasse in the approach to the investigation. Mr Clothier asserted that:
ASADA and the AFL agrees that any player that comes forward in this matter and makes full disclosure will not be prosecuted if he unknowingly used a prohibited substance and was in the opinion of ASADA and the AFL, not culpable in relation to the use of the substance.
On 11 February 2013, this concept of non-culpability was developed further in an email conversation between Mr Clothier and Mr Simonsson where the notion of “exoneration” for a player was discussed.
On 13 February 2013, Mr Simonsson emailed Mr Clothier and suggested that, where a player came forward and admitted anti-doping conduct in a sworn statement, “ASADA and the AFL will fully explore all avenues in an attempt to provide substantial assistance or a no fault or negligence defence”.
Later that day, Ms Elen Perdikogiannis, a lawyer from ASADA, became involved in the negotiation as to what outcome might be made available to players who offered “substantial assistance”.
Mr Eccles, also got involved and wrote to Ms Perdikogiannis:
Spoke with Gillon - not sure he was fully in the loop. But I think he is now.
Anyway, I took him through the fact that the para,
where ASADA forms the view that the defence of no fault or negligence is available in relation to a particular player, ASADA and the AFL agree that they will support the application of that defence to that player in proceedings before relevant sports tribunals.
was as far as possible and a really good thing - and all he then needed was an assurance that the AFL Tribunal would view things in a certain light, and it is as locked in as it can be.
On 18 February 2013, Ms Perdikogiannis involved herself further in the negotiations between ASADA and the AFL over the words that ASADA would communicate to the Essendon players.
Following these negotiations, ASADA and the AFL reached an agreement concerning how the players would be treated if they offered substantial assistance. On 20 February 2013, Mr Simonsson and Mr Darren Mullaly of ASADA attended a meeting with Essendon and spoke to the players and other Essendon personnel en masse. Mr Simonsson read from a prepared statement and handed out a document. The document referred to “our agreement with the Australian Football League about how the investigation is going to proceed”, and spoke of the assurance to be proffered to the Essendon players if they provide substantial assistance.
The final version of the statement was delivered to players by ASADA on 20 February 2013.
However, after the statement had been delivered, ASADA issued a new statement on 7 March 2013. The new wording was provided by Ms Perdikogiannis of ASADA to Mr McLachlan and Mr Clothier in a letter on 7 March 2013. This new wording spoke of “substantial consideration” being given to not opposing the defence of substantial assistance but affirmed that now the players carried the onus of establishing substantial assistance.
On 7 March 2013, Mr McLachlan wrote back to ASADA and took issue with the changed wording proposed by Ms Perdikogiannis. The AFL asserted that Essendon players and personnel had relied upon the original statement (from 20 February) and that the investigation had commenced and was ongoing on the basis of that reliance.
Ms Perdikogiannis was apparently concerned by this turn of events. She also received a call from Mr Eccles, whom Mr McLachlan had called to express his concern. Ms Perdikogiannis conveyed this to Ms Andruska and others in an email dated 7 March 2013.
On 8 March 2013, Ms Perdikogiannis replied to Mr McLachlan’s letter and affirmed the revised ASADA position. She thanked him for the AFL co-operation to that date.
Mr Simonsson made a further presentation to players on 6 May 2013. It would appear that Mr Simonsson gave certain representations to the Essendon players that they would receive favourable treatment if they co-operated with the investigation. The Essendon players were encouraged by Mr Simonsson’s comments to answer the questions put to them during the course of the investigation.
Shortly after the presentation to players on 6 May 2013, player interviews commenced.
By all the assurances (both the original and revised versions) the Essendon players were encouraged, and perhaps guided, by various people in authority who made the assurances, to attend the interviews and answer questions. The revised assurances were made before the player interviews commenced.
Whilst I consider that the Essendon players would have taken into account all the presentations given to them, including by Mr Simonsson on 6 May 2013, it is clear that the Essendon players attended the interviews on the basis of those contractual obligations, set out in the Player Rules and the AFL Code.
Interview process
I now turn to the interview process.
On 10 February 2013, Mr Nolan emailed Mr Clothier and requested that a template letter be produced by the AFL, so that persons could be directed to attend interviews as part of the investigation.
Having agreed to co-operate, ASADA made many requests of the AFL throughout the investigation. Ms Andruska asked the AFL to use its “compulsory powers” to issue a standing demand to AFL clubs for any investigative material they may collate of their own initiative. Ms Andruska provided a draft notice for the AFL to issue to the clubs. In her covering email, Ms Andruska stated:
As this obligation to cooperate is ongoing the Clubs should also be reminded that they are to continually provide such material to ASADA as and when it is obtained. For example, ASADA is to be provided with an electronic and/or hard copy of any interview immediately following its conclusion - in its complete and unedited form.
If you agree with this position, I propose that the AFL send Clubs a copy of the Notice attached to this email, which has been settled by Senior Counsel. It is obviously a matter for you which Clubs are provided with this Notice but I would urge you to send it to the Club already identified as being under investigation. Accordingly, if ASADA or the AFL become aware that Clubs are not complying with the terms of the Notice, the AFL would be empowered to act upon such non-compliance as a breach of the Anti-Doping Code.
On 5 March 2013, Ms Sharon Kerrison of ASADA sent emails to Mr Haddad at the AFL, in effect agreeing to the terms of the draft AFL notice to Essendon players and officials to attend interviews.
On 14 March 2013, there was a meeting between ASADA investigators and the AFL investigators to discuss an investigation strategy and division of workload between the AFL and ASADA. Later that day, ASADA provided to the AFL a “searchable PDF file of all relevant documents provided by Deloitte” to the AFL. Although the AFL had retained Deloitte for forensic investigative purposes, ASADA was closely involved in the management of the Deloitte processes. ASADA had direct contact with Deloitte, albeit with the permission of the AFL. From time to time during this period, and later at the request of ASADA investigators, the AFL used its “compulsory powers” to require production of physical evidence, documents, computers and phones. That material was subsequently provided to ASADA. ASADA was to record each interview, and provide the AFL with transcripts of the recordings of interviews, which it did. No express conditions were placed on the use of this material in the hands of the AFL, but on the basis of the way in which the “joint investigation” was conducted, such restriction on use would not be expected. As Mr Walker in his affidavit said, the “joint investigation” was to “fulfil separate, but overlapping, objectives”, and that:
ASADA and the AFL had different, but complementary, roles which were underpinned by shared objectives – preventing and detecting doping violations and thereby ensuring the integrity of sports.
On 15 February 2013, ASADA prepared the interview plans to be used in the investigation. Mr Walker of ASADA deposed that there was no input from the AFL into those interview plans.
As the investigation progressed, interviews were conducted on the basis that:
·as agreed, ASADA asked the AFL to contact Essendon personnel and players, both past and present, and direct those personnel to attend interviews;
·the AFL summoned the interviewee using its compulsory powers;
·the AFL interviewer delivered an introduction; and
·the ASADA investigators then effectively took over the interview.
ASADA continued to control the conduct of the investigation as it progressed. For example:
·ASADA provided an interview plan to the AFL (Mr Haddad) for Essendon employee Mr Robinson;
·ASADA requested that the AFL locate and compile all player registration forms;
·ASADA asked the AFL to obtain medical information from Essendon;
·ASADA requested that the AFL provide game and injury statistics; and
·ASADA requested that the AFL provide the Deloitte analysis of the Essendon accounts system.
As I have said, ASADA recorded each interview and then prepared transcripts of the interviews. ASADA engaged Auscript to transcribe the interviews. Those interview transcripts were fed back to the AFL, commencing as early as 26 March 2013. This process of providing transcripts of interviews continued from March to late July 2013. The AFL was asked by ASADA to prepare summaries of the transcripts of interview, and to provide those summaries to ASADA.
I mention at this juncture that around this time and thereafter there was some doubt expressed, both to the AFL and to ASADA, as to the legality of the investigation and disclosure of information to the AFL by ASADA. I will return to this aspect later.
The investigation continued. On 10 April 2013 Mr Hird received a letter from Mr Clothier (‘the AFL letter’), headed “Notice for Interview: James Hird”.
The AFL letter included statements to the following effect:
·The AFL and ASADA were undertaking an investigation into the production, distribution and use of prohibited substances in the AFL (defined in the AFL letter as the “Investigation”).
·Clause 12.7 of the AFL Code placed obligations on relevant persons to:
(a)fully co-operate with any investigation;
(b)fully and truthfully answer any question asked for the purpose of such investigation; and
(c)provide any document in their possession or control relevant to such investigation.
·Rule 1.8 of the Player Rules obliged relevant persons, amongst other obligations, not to:
(d)give any false or misleading evidence to any hearing or investigation conducted under the Player Rules and AFL Regulations;
(e)refuse or fail to attend or give evidence as directed at any inquiry when requested to do so: and
(f)refuse or fail to co-operate with any investigation conducted by the AFL under the AFL Rules and Regulations.
·Mr Hird was required under the Player Rules and cl 12.7 of the AFL Code to attend, on 16 April 2013, an interview with the AFL and ASADA in relation to the investigation.
·Failure to comply with the requirements of the Notice may be acted upon by the AFL as a breach of the Player Rules and/or a breach of the AFL Code.
Also on 10 April 2013, Mr Hird’s legal representative received an email communication from Mr Nolan, attaching an “explanatory document”.
The “explanatory document” included statements to the following effect:
·The ASADA and the AFL investigation involved an allegation that AFL athletes and support persons may have used prohibited substances and may have engaged in prohibited methods.
·Rule 12.7 of the AFL Code provided that each player, club, officer and official, must upon the request of the AFL General Manager – Football Operations or the AFL Medical Officer:
(a)fully co-operate with any investigation;
(b)fully and truthfully answer any question asked for the purpose of such investigation; and
(c)provide any document in their possession or control relevant to such investigation.
·Failure to comply with the requirements of the interview notice may be acted upon by the AFL as a breach of the AFL Code which if pursued by the AFL could be sanctioned at the discretion of the AFL Tribunal, pursuant to cl 14.11 of the AFL Code.
Pages 6–8 of the “explanatory document” contained, without accompanying explanation, a copy of Div 137 of the Schedule to the Criminal Code Act 1995 (Cth) (‘Commonwealth Criminal Code’). Division 137 contains offences relating to the provision of false or misleading information or documents to a Commonwealth agency, which includes ASADA.
On 16 April 2013, Mr Hird attended an interview with ASADA and AFL representatives (‘the Interview’).
The Interview was introduced by Mr Haddad, an employee of the AFL, and then principally conducted by ASADA investigators John Nolan and Aaron Walker. Mr Haddad and the two ASADA investigators were present throughout the Interview. At the commencement of the Interview, the AFL employee said to Mr Hird, in the presence of the two ASADA investigators, words to the following effect: “This is a joint investigation between AFL and ASADA — the Australian Sports Anti-Doping Agency — and it’s run under the rules of the AFL”.
Mr Haddad informed Mr Hird, also at the commencement of the Interview, that if Mr Hird refused to answer any of the questions put to him, Mr Hird’s refusal could result in sanctions under the AFL Rules.
Neither of the two ASADA investigators:
·Specifically then asked Mr Hird whether he consented to the disclosure to the AFL of the information that Mr Hird supplied in the course of the Interview; or
·informed Mr Hird that he had a right to refuse to consent, or a right to withhold consent, to the disclosure to the AFL of that information; or
·stated to Mr Hird that the ASADA legislative regime did not abrogate the common law right against self-incrimination; or
·stated to Mr Hird that he had the right to refuse any question on the ground that it might incriminate him; or
·stated to Mr Hird that, pursuant to the ASADA legislative regime, Mr Hird, upon being interviewed, had the right to remain silent without penalty or censure.
Undoubtedly, as a matter of legal principle, it is an abuse of power to use a power conferred for one purpose, for a different purpose.
Problems arise in determining whether a statutory entity has acted outside its powers when a plurality of purposes actuate a particular decision: see H. Woolf, J. Jowell, A. Le Suer, C. Donnelly and I. Hare, De Smith’s Judicial Review (7th ed) (2013) at pp 301-305.
The Full Court in Flanagan v Australian Federal Police (1996) 60 FCR 149 at 203 stated:
It is equally well established, and not disputed here, that an administrative act will be invalidated where its "initiating and abiding purpose" is a foreign or ulterior one.
Justice Merkel stated the position in Kazar v Duus (1998) 88 FCR 218 (‘Kazar’) at 233:
A statutory power must be exercised for the purpose for which it was conferred. If the power is exercised for more than one purpose, where one of those purposes is improper, the exercise of the power will be vitiated if the improper purpose was a substantial purpose in the sense that the decision would not have been made but for the ulterior purpose: see Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 56 ALJR 678 at 679; and Thompson v Council of Randwick (1950) 81 CLR 87 at 106; cf Knuckey v Commissioner of Taxation (Cth) (1998) 87 FCR 187 at 196-197.
These statements of principle were cited with approval by Hely J in Williams v Keelty (2001) 111 FCR 175 at [234], and they accord with High Court authority as referred to by Merkel J in Kazar.
However, whatever way the question is asked, in my view ASADA acted within the confines of the Act and the NAD Scheme because ASADA’s purpose of the investigation was to investigate anti-doping matters.
The use of the compulsory powers by the AFL (and not by ASADA) did not thwart or frustrate the purpose of the Act or the NAD Scheme. ASADA did not use any compulsory power of its own, and Mr Hird and the 34 Players did not answer questions or provide any information arising from any requirement to do so under or pursuant to the Act or NAD Scheme. No power of the State has been utilised by ASADA to compel Mr Hird or the 34 Players to act in the way they did during the investigation.
I should indicate that even after the introduction of the 2013 Amendment Act, the position did not change in respect of Mr Hird and the 34 Players, who remained subject to the contractual regime. ASADA may need to rely upon the Act as amended to facilitate obtaining information from persons outside that contractual regime. However, nothing in the amended Act added to or removed the ability of ASADA to request the voluntary provision of information from the AFL, or from those who voluntarily contracted to provide information to the AFL (and to ASADA).
I have already considered the nature of privilege against self-incrimination, and how it was effectively curtailed under the contractual regime entered into by Mr Hird and the 34 Players. At the interviews, no claim to invoke the privilege against self-incrimination was made. Mr Hird and Essendon had the opportunity to refuse to answer questions and provide information, albeit with the consequence of possible contractual sanctions by the AFL. No power of the State would have been involved in the imposition of this sanction — ASADA could take no action to enforce the refusal of any player or of Mr Hird to answer questions or provide information. This would be entirely a matter for the AFL. In essence, there was thus no “compulsion” by ASADA at all, nor any resultant abrogation of privilege against self-incrimination.
Further, Mr Hird and the 34 Players provided the information to the AFL and ASADA by, for instance, answering questions in the same room as representatives of both ASADA and the AFL. ASADA was not communicating, nor divulging information to the AFL. The information was directly and simultaneously provided to both the AFL and ASADA by (relevantly) Mr Hird and Essendon.
Once these factual conclusions are reached, the contentions of Essendon and Mr Hird in relation to improper purpose have no foundation, and cannot be sustained.
Interim Report
I now turn to the contentions relating to the Interim Report.
Mr Hird and Essendon contend that ASADA did not provide the Interim Report to the AFL “for the purposes of, or in connection with” the CEO’s investigation into “possible violations of the anti-doping rules” or “for the purposes of, or in connection with” the “administration of the NAD Scheme”.
They contend that the evidence showed that:
(a)ASADA investigators discussed the AFL’s capacity to bring disciplinary charges, and the provisions of the Player Rules regarding “bringing the sport into disrepute”, with the AFL at the outset of the investigation;
(b)as early as mid-April 2013, the AFL requested that ASADA provide the AFL with an interim report;
(c)ASADA was conscious that the AFL was interested in information on matters of governance that were relevant to charges which the AFL might lay against Essendon and its personnel (other than players) for governance failures;
(d)ASADA and the AFL met (in person or by telephone) on a number of occasions, particularly in June 2013, during which meetings the AFL impressed upon ASADA the AFL’s need for a full report that would allow the AFL to bring disciplinary charges against Essendon players and personnel before the finals, and so preserve the integrity of the 2013 AFL season;
(e)against the backdrop of meetings of 19 and 25 June 2013 (at which the AFL’s intended use of the report for the laying of disciplinary charges was made clear), ASADA staff provided a detailed table of contents to the AFL for approval on 16 July 2013, which dealt extensively with the “uncontrolled environment” at Essendon; and
(f)ASADA ineffectively sought to address any issues concerning the legality of providing the Interim Report to the AFL by providing the Interim Report under cover of a letter stating that the Report was provided “in connection with my investigation under the NAD Scheme”, as though that verbal formula was sufficient.
Mr Hird and Essendon contend that AFL clubs, players and officials are bound by the Player Rules and the AFL Code. Charges for doping offences fall to be brought by the AFL under the AFL Code. Charges for offences such as “conduct unbecoming or prejudicial to the interests of the AFL”, which relate to matters of governance, fall to be (and were) laid by the AFL under the Player Rules. Accordingly, Mr Hird and Essendon contend that it was not a proper purpose for ASADA to prepare the Interim Report with a view to assisting the AFL to consider whether to bring regulatory charges, or to provide the Interim Report to the AFL knowing the use that the AFL proposed to make of it.
Mr Hird and Essendon contend that there was a clear difference between the investigation of, and reporting on, anti-doping offences (which was ASADA’s responsibility) and the investigation of, and reporting on, matters of governance (which was the AFL’s responsibility). The contention is that in providing the Interim Report to the AFL for the AFL’s purpose, ASADA not only breached its duties of confidentiality and the legislative restrictions on disclosure, but it acted for purposes that were extraneous to the functions of the CEO under the Act.
The contention of Mr Hird and Essendon is that ASADA knew that the AFL was using, or planned to use, information from the investigation, including the Interim Report, for the purposes of its own disciplinary proceedings, and not for the purposes of the Act. Moreover, they note that ASADA took no action when the AFL published charge sheets containing protected information that the AFL had drawn from the investigation and the Interim Report.
I have found that the Interim Report was provided by the CEO of ASADA on the basis and for the purposes set out in the ASADA letter dated 2 August 2013, and with the knowledge that the Interim Report would be used by the AFL for considering the bringing of disciplinary charges against Mr Hird and Essendon.
ASADA provided the Interim Report to the AFL after the commencement of the amended Act. Accordingly, cl 4.21 of the amended NAD Scheme is relevant.
The disclosure of non-entry information supplied by Mr Hird, the players and other Essendon personnel had to satisfy the requirements of s 13(1)(g) of the amended Act and cl 4.21 of the NAD Scheme. The limitations found in cl 4.21(1)(b) (as to the nature of the information disclosed) and s 13(1)(g) (as to the circumstances of the disclosure) were applicable.
The use of the term “for the purposes of, or in connection with” in s 13(1)(g) of the Act (and, by reference, cl 4.21(2) of the NAD Scheme) enable alternative and different disclosures. That is, cl 4.21 expressly permits disclosures of information “in connection with” matters other than those which are “for the purposes of” ASADA’s investigation.
Further, an indication of the operation of cl 4.21(2) can be seen from its overall scope and purpose.
Looking at some of the other entities referred to in cl 4.21(2), if, for example, an ASADA investigation revealed the possibility of potentially prohibited substances being illegally imported by persons using false identities, ASADA could release that information to the Australian Federal Police or the Australian Customs Service, even if it did not advance or facilitate any particular aspect of an extant ASADA investigation. Clause 4.21(4) then limits the purpose to which that information can be used. In the case of the AFL, the Privacy Act 1988 (Cth) applied, so no express limitation in this regard upon the use of the information by the AFL needed to be imposed.
In my view, the Interim Report was given to the AFL for both “the purposes of” the continuing ASADA investigation, and “in connection with” the ASADA investigation.
As to being used for “the purposes of” the investigation, as I have already mentioned the ASADA letter of 2 August 2013 made it clear that ASADA was requesting information from the AFL for ASADA’s continuing work on its investigation.
As to the question of whether the Interim Report was given “in connection with” the ASADA investigation, the following can be concluded.
On the evidence before the Court, the investigation disclosed a strong link between deficient governance and management practices at Essendon and the possibility of Essendon players being involved in anti-doping violations. This can be seen from the Statement of Grounds brought by the AFL against Essendon and Mr Hird, and by reference to the Deeds entered into by Essendon and Mr Hird in the settlement of the disciplinary charges brought against them by the AFL.
The Interim Report itself identified a connection between deficient governance and management practices on the part of Essendon personnel and the possibility of players being involved in anti-doping violations. The Interim Report did not (as was contended by Mr Hird and Essendon) dwell extensively on matters of governance. Its focus was the suspected anti-doping violations by Essendon players and personnel.
Further, in the Switkowski Report it was concluded that:
… A number of management processes normally associated with good governance failed during this period, and as a result, suspicions and concerns have arisen about the EFC.
In particular, the presence of banned substances on Club premises, rapid diversification into exotic supplements, sharp increase in the frequency of injections, the shift to treatment offsite in alternative medicine clinics, emergency of unfamiliar suppliers, marginalisation of traditional medical staff etc combined to create a disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented within the Club in the period under review.
Compliance rules existed but normal controls during an abnormal period were insufficient to check the behaviours of some people who may have contravened accepted procedures, and the CEO and the board were not informed.
Therefore, the poor governance and management practices at Essendon were related to possible anti-doping violations by Essendon players, to the extent that such violations may have been systemic, or may have occurred because proper governance and management practices were not in place. This seems to have been the very situation that existed at Essendon. The disclosure of investigative information to enable the AFL to consider and, if thought appropriate, take disciplinary action against Essendon and its officials in this way was “in connection with” the ASADA investigation.
I should also reiterate that the divulging or communicating of information in the Interim Report did not include all the information and evidence gathered by ASADA in the course of the investigation. ASADA, as is apparent from the covering letter of 2 August 2013 (and other evidence), was careful not to include information that the AFL was not entitled to and which the AFL had itself obtained. The class of information I have in mind which was not divulged or communicated to the AFL included information provided to ASADA by certain Australian Government agencies and sensitive medical information.
In light of the above reasons, I will order the dismissal of the applications brought by Essendon and Mr Hird.
DISCRETIONARY CONSIDERATIONS
However, if I had found the investigation to be unlawful or the provision of the Interim Report to be unauthorised or done for an improper purpose, issues would have arisen as to the exercise of the Court’s discretion in granting relief.
As the applications in these proceedings are made under s 79B of the Judiciary Act 1903 (Cth), in my view all the relief sought in these proceedings is discretionary, including setting aside the Notices. The discretion to refuse relief is an indispensable part of the judicial function. In the High Court’s original jurisdiction, judicial review remedies can always be refused on discretionary grounds: see Ex parte Aala at 89, 105-8, 136-7, 144. Whether to grant relief in the course of a judicial review, is evaluative and discretionary.
Therefore, any applicant for judicial review needs to establish the substantive ground for relief and persuade the Court to grant the appropriate relief. In simple terms, the applicant for judicial review needs to establish what went wrong, and what needs to be done to remedy that wrong (to the extent the wrong is able to be remedied).
If beyond power, then the decision of the CEO to issue the Notices would be no decision at all: see Plaintiff S157/2002 at [76] and Lee v The Queen at [36]. At the same time it must be recognised that a purported exercise of a power conferred by law remains a thing actually done.
As Gageler J stated in New South Wales v Kable (2013) 298 ALR 144 at [52]:
Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a “nullity” in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.
(emphasis added)
Following upon a “null decision”, other decisions or events may occur. In these proceedings, during the investigation, and based upon it, the Interim Report was provided by ASADA to the AFL, which was acted upon by the AFL in a way adversely affecting Essendon and Mr Hird by the bringing of disciplinary charges.
It is to be recalled that the consequences following upon a finding that a decision is unlawful will depend upon the construction of the relevant legislation: see Project Blue Sky at [93].
The Court needs to determine the appropriate relief to grant, which may involve setting aside the Notices and granting injunctive relief.
In these proceedings, apart from the parties, there is also to be considered the interests of third parties, namely the 34 Players: see Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [69], and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [65] and [66].
The question at this stage of the enquiry is whether it would have been just that the remedy be withheld.
The courts have a responsibility to vindicate rights and ensure that public bodies act within the law. I do not consider that the discretion to refuse relief should be described as exceptional or rare in circumstances where a public body has acted unlawfully. However, there is a basic presumption that appropriate relief should follow upon a finding of unlawfulness.
In these proceedings, I would not have declined to set aside the Notices or grant injunctive orders on the basis of public policy, delay, acquiescence or the conduct of either Essendon or Mr Hird.
As to the last aspect, assuming there is an evidentiary basis for impugning the conduct of either Essendon or Mr Hird, I do not regard their conduct as being a basis to preclude the granting of the relief sought by them. I do not consider that the conduct of either Essendon or Mr Hird, relied upon by ASADA, has the “immediate and necessary relation” to the relief sought following upon the unlawful conduct of ASADA as alleged: see, eg, Meyers v Casey (1913) 17 CLR 90 at 123.
In any event, the interests of the 34 Players need to be considered, and there is no suggestion that any of the 34 Players acted in any way improperly which would be relevant to the relief sought in these proceedings, particularly in relation to the relief sought of setting aside the Notices.
As to delay and acquiescence, they do not in themselves result in relief being refused — the question is whether it is just that the remedy sought be withheld.
In my view, there was no relevant delay; once the Notices were issued, these proceedings were immediately commenced by Essendon and Mr Hird.
During the course of the investigation, Essendon, the 34 Players and Mr Hird hoped (maybe even anticipated) that the CEO would decide not to issue any notices at all. In that event, Essendon and Mr Hird would not have needed to agitate the issue of the legality of the investigation.
Whilst there was considerable acquiescence and co-operation with the investigation by Mr Hird and Essendon, ASADA itself continued with the investigation knowing of some legal uncertainty. In any event, ASADA had the ultimate responsibility to act within the law and administer the Act and the NAD Scheme. The public policy consideration of upholding the rule of law would have favoured the granting of the relief sought over any other public policy consideration relevant to these proceedings.
I also do not accept the contention of ASADA that no injunctive relief should be granted because subsequent downstream decision-makers will be able to make the appropriate evidentiary rulings, assuming some of the evidence was obtained unlawfully during the investigation.
In these proceedings, the Court is only concerned with the lawfulness of the investigation, and the future conduct of ASADA in using information obtained (said to be obtained unlawfully) in the course of the investigation. Any injunctive relief would only be directed to ASADA, and its subsequent use of unlawfully obtained information. This could not affect downstream decision-makers, who will need to consider the position if and when unlawfully obtained evidence is sought to be tendered and relied upon before them.
The only grounds in my view which would have precluded relief are the grounds of inevitable outcome and utility.
The AFL could itself have separately and lawfully (pursuant to the contractual regime) compelled the 34 Players and Mr Hird to provide the very information in fact provided by them in the course of the investigation.
ASADA could then have requested the provision of information from the AFL, or the AFL could have volunteered the information. The privileges against self-incrimination would not have been claimed in relation to the AFL due to the contractual obligations of Mr Hird and the 34 Players. In such a scenario, there would have been no question of unauthorised information being divulged or communicated by ASADA, as the AFL would have divulged or communicated the information to ASADA.
As to the future, no useful purpose would be served by setting aside the Notices or the grant of injunctive relief sought by Mr Hird and Essendon, because the process set out above could then be undertaken by the AFL and ASADA. I am not suggesting that this could be done by the simple expedient of obtaining the transcripts of the interviews in the possession and control of the AFL. This may not be permissible if the information contained in such transcripts was obtained unlawfully by ASADA.
However, the Court would not frame an order which prevents ASADA from being able to carry out its statutory functions in accordance with the law, even if that involves the derivative use of information sourced from the unlawfully conducted interviews. Nor does the power of the Court extend to removing from the memory of ASADA the material it has gathered in the investigation, some of which was lawfully obtained in any event.
If ASADA had made an unlawful decision, itself a nullity as contended for by Mr Hird and Essendon, this would not prevent a decision-maker making another lawful decision: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
The CEO or ASADA could in the future lawfully obtain effectively the same information by further interviews conducted independently by the AFL, which information would be given to ASADA. 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.
The CEO would then need to consciously re-consider whether to issue new notices based upon that information and any additional material before him.
I make a final observation relating to the declaration sought concerning the Interim Report. If I had come to the view that the provision of the Interim Report to the AFL was unlawful, I would have been disinclined to make the declaration sought.
The Interim Report was provided to the AFL on 2 August 2013, with the knowledge of Mr Hird, Essendon and the 34 Players. No proceedings were brought to challenge the provision of the Interim Report to the AFL until the commencement of these proceedings.
More significantly, the AFL (not a party to these proceedings) has acted upon that Interim Report, bringing disciplinary charges against Essendon and Mr Hird. Both Essendon and Mr Hird entered into settlements with the AFL in relation to those disciplinary charges.
CONCLUSION
In my view, ASADA complied with the rule of law in establishing and conducting, in the manner and for the purposes it did, the investigation.
In addition, ASADA lawfully provided the Interim Report to the AFL, which has subsequently been acted upon by the AFL in bringing disciplinary charges against Essendon and Mr Hird.
On the basis of the reasons I now publish, the applications of Mr Hird and Essendon are dismissed.
In each application the Court orders the following:
(a)The application is dismissed.
(b)Unless a party notifies in writing the Court by 4.00 pm on Wednesday 1 October 2014, indicating opposition to this order as to costs, the Applicant pay the Respondent’s costs of and in connection with the proceeding to be taxed in default of agreement.
I certify that the preceding five hundred (500) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate:
Dated: 19 September 2014
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