Riordan v Australian Sports Drug Agency
[2002] FCA 858
•5 JULY 2002
FEDERAL COURT OF AUSTRALIA
Riordan v Australian Sports Drug Agency [2002] FCA 858
ADMINISTRATIVE LAW - drug testing in sports – appeal from Administrative Appeals Tribunal (AAT) – AAT reviewing decision of Australian Sports Drug Agency that positive test result valid and must be placed on register of notifiable events – whether discretion to place result of valid, positive, test on register – whether obliged to consider relevant circumstances other than those specified – whether competitor’s age, previous drug-free record, competitor’s alleged failure to resemble profile of a drug-taker, allegation that positive test result may be explained other than by ingestion of prohibited drugs and allegation that specific drugs found do not enhance performance of athletes in particular event were relevant circumstances – whether AAT obliged to make specific finding on every item of evidence conflicting with its ultimate finding
WORDS AND PHRASES – “other relevant considerations” – “includes”
Dilworth v The Commissioner of Stamps [1899] AC 99 referred to
Y.Z. Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 referred to
Lamont v Commissioner for Railways (1963) 80 WN (NSW) 1242 referred to
Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368 followed
Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 referred to
Blackwood Hodge (Australia) Pty Ltd v Collector of Customs, New South Wales (No 2) (1980) 3 ALD 38 referred to
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (2000) 168 ALR 407 appliedAustralian Sports Drug Agency Act 1990 (Cth) ss 6, 7, 8, 9(1), 11, 14, 15(4), 17G, 54C, 65B
Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Australian Sports Drug Agency Regulations 1999 (Cth) regs 6, 7, 23, 24, 26, 29, 31, 43, 45, 47, 48, 64
Australian Sports Drug Agency Testing (Scheme A) Orders 1999 clauses 59, 61
Acts Interpretation Act 1901 (Cth) s 33(2A)Pearce and Geddes Statutory Interpretation in Australia 5th ed. 2001
HEIDI RIORDAN (BY HER NEXT FRIEND RAYMOND GEORGE RIORDAN) v AUSTRALIAN SPORTS DRUG AGENCY (ASDA)
V 1060 of 2001GRAY J
5 JULY 2002
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 1060 of 2001
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
HEIDI RIORDAN (BY HER NEXT FRIEND RAYMOND GEORGE RIORDAN)
APPLICANTAND:
AUSTRALIAN SPORTS DRUG AGENCY (ASDA)
RESPONDENTJUDGE:
GRAY J
DATE OF ORDER:
5 JULY 2002
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant’s next friend and father pay the respondent’s costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 1060 of 2001
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
HEIDI RIORDAN (BY HER NEXT FRIEND RAYMOND GEORGE RIORDAN)
APPLICANTAND:
AUSTRALIAN SPORTS DRUG AGENCY (ASDA)
RESPONDENT
JUDGE:
GRAY J
DATE:
5 JULY 2002
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The nature of the proceeding
This application raises issues as to the proper functioning of the Australian Sports Drug Agency (“the Agency”), a body corporate established by the Australian Sports Drug Agency Act 1990 (Cth) (“the ASDA Act”). In particular, the proceeding raises the issue of the extent, if at all, to which the functions of the Agency as a drug tester involve the exercise of discretion.
The application is by way of appeal from the Administrative Appeals Tribunal (“the Tribunal”), pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). Section 44(1) of the AAT Act makes it clear that such an appeal is confined to a question of law.
On 10 May 2001, the Agency made two decisions. The first was not to determine invalid a positive test result of the applicant. The second was to enter the name of the applicant on a register known as the Register of Notifiable Events. The applicant applied to the Tribunal for review of those decisions. On 6 September 2001, the Tribunal published its written decision and reasons for decision. Its decision was to affirm both of the decisions under review.
In consequence of her name being placed on the Register of Notifiable Events, the applicant was banned from competition for two years by Athletics Australia, the governing body of the sport in which she competed.
On 2 October 2001, the applicant filed her application in the Court. At the time, she was seventeen years old. She had persuaded the Tribunal to suppress her name, so she was described in the Tribunal’s decision as “VZZ”. The application to the Court was handwritten. It designated the relevant question of law in the following terms:
“Is it a matter of ‘strict compliance’ or a matter of ‘substantial compliance’ which determines wether [sic] or not the A.S.D.A. should conclude wether [sic] or not a positive or negative result should be determined in relation to the applicant V.Z.Z.?”
The ground of the application was as follows:
“Senior Member Handley was mistaken in finding that the required strict compliance with the procedures set out in the Australian Sports Drug Agency Acts, REGULATIONS and ORDERS had taken place in this matter.”
At the first directions hearing, the applicant was represented by counsel. I ordered that her father, Raymond George Riordan, be added as her next friend in the proceeding, and gave the applicant leave to file and serve an amended notice of appeal by 19 November 2001.
On 19 November 2001, the solicitor for the applicant filed an amended notice of appeal. The questions of law said to be raised on the appeal in that amended notice were:
“(a) The Tribunal misdirected itself as to the matters to be considered in
reaching its decision.(b) The Tribunal failed to consider a relevant matter in reaching its
.”
decisionThe grounds of appeal were stated as follows:
“The learned Senior Member in his reasons for decision found that no contamination or tampering of the samples occurred by the respondent or its officers or agents and therefore, in so finding, failed to address the question as to whether there had been contamination of the samples by the applicant.”
Notwithstanding that, by the time of the first directions hearing on 29 October 2001, the applicant had a solicitor on the record as acting for her. On that date she filed a handwritten notice of motion containing no reference to the solicitor. She sought an order that her name be suppressed.
The next directions hearing was on 3 December 2001. On that date, senior and junior counsel appeared for the applicant. They continued to act for her throughout the proceeding. I understand that they did so without fee, in accordance with the highest traditions of the Bar.
At the directions hearing on 3 December 2001, counsel for the applicant handed up a further amended notice of appeal. This detailed the questions of law raised on the appeal as follows:
“a. Whether the Tribunal misdirected itself as to the matters to be
considered in reaching its decision;b. Whether the Tribunal failed to consider a relevant matter in reaching
its decision;c. Whether the Applicant received a hearing at all as required;
d.Whether the Tribunal failed to consider the circumstances of the
Applicant, in particular the fact that the Applicant had not knowingly
ingested any substance which could account for the test result;e.Whether the Tribunal, having found that the sample was valid, failed to consider matters affecting its discretion to enter the test result in the Register of Notifiable Events in the circumstances.”
The grounds were stated as follows:
“a. The learned Senior Member in his reasons for decision found that no
contamination or tampering of the samples had occurred by the
Respondent or its agents and therefore, in so finding, failed to
address the question as to whether there had been contamination of
the samples by the Applicant;b. The learned Senior Member failed to consider whether there had been
strict compliance with the Australian Sports Drug Agency Testing
(Scheme A) Orders 1999;c. The learned Senior Member failed to consider whether the
circumstances of the case, including the individual circumstances of
the Applicant, should lead the Tribunal to exercise its discretion not
to enter the result in the Register of Notifiable Events notwithstanding
that the test result was positive;d. The Applicant:
i. is a minor;
ii. was not competently represented at the hearing;
iii. was unable to make an independent assessment of whether she
was competently represented at the hearing;iv. as a consequence did not receive a hearing at all.”
On that day, counsel for the applicant persuaded me that it was open to the applicant to rely on a question of law based on reg 29(1)(g) and (h) of the Australian Sports Drug Agency Regulations 1999 (Cth) (“the ASDA Regulations”). I therefore ordered that, on or before 7 December 2001, the applicant file and serve a further amended notice of appeal, specifying only a question of law based on reg 29(1)(g) and (h) of the ASDA Regulations. I
also gave directions for the filing and service of written submissions by both parties. I dismissed the motion filed on 29 October 2001.
Pursuant to the direction given on 3 December 2001, on 7 December 2001, the applicant’s solicitor filed a further amended notice of appeal. The questions of law designated in that notice are as follows:
“a. Whether the Tribunal, having decided that the test result was
positive failed to consider any other relevant circumstances before
deciding that the test result:i. was valid;
ii. must be entered on the Register of Notifiable Events;
b. Whether the Tribunal:
i. recognized that regulations 29(1)(g) and 29(1)(h) of the
Australian Sport Drug Agency Regulations 1999 required it
to consider other matters once it had decided that the test
result was positive;ii. recognized that regulations 29(1)(g) and 29(1)(h) of the
Australian Sport Drug Agency Regulations 1999 required it
to consider other matters once it had decided that the test
result was valid;iii. considered those other matters.”
The grounds of appeal are:
“a. The learned Senior Member failed to consider whether there had
been strict compliance with the Australian Sports Drug Agency
Testing (Scheme A) Orders 1999;b.Once the learned Senior Member had determined that the test result
was positive he failed to consider any other matters before
determining that the result should be entered the [sic] in the Register of Notifiable Events.PARTICULARS
i. The Applicant is a minor;
ii. The Applicant presented for medical examinations and blood
tests on a monthly basis prior to 4 March 2001 and there is no
evidence to suggest that she had ever used drugs included in
the schedule of drugs or doping methods specified in the
Australian Sports Drug Agency Drug Testing (Scheme A)
Orders 1999 prior to 4 March 2001;iii. The Applicant does not fit the profile of an athlete using any of
the prescribed [sic] substances;iv. The positive test result may have been explained by
circumstances other than the ingestion of Stanozonol and
Nandralone by the Applicant;v. Stanozonol and Nandralone do not benefit athletes engaged in
”
middle distance running.It was by this process that the proceeding came to raise the issue of the nature of any discretion that the Agency may have in relation to a positive drug test.
The facts
In its written reasons for decision, the Tribunal made detailed findings of fact. It is unnecessary for me to set out those findings of fact in such detail, but some summary is required.
On 4 March 2001, the applicant competed in and won an open age 800 metre event at the Telstra Athletics Grand Prix meet at Perry Lakes Stadium in Perth. It was a very hot day. At the completion of the event, Ms Kirsten Woodyard, a chaperone with the Agency, notified the applicant that she had been selected to provide a urine sample for drug testing. After the completion of the formalities, the applicant attempted to pass sufficient urine for a sample (80ml was required), but was unable to do so.
There was then a delay while a meal was taken. The applicant drank a quantity of fluids. After the meal, the applicant and Ms Woodyard returned to the testing room. After some further delay, the applicant was able to produce a sufficient quantity of urine to enable a test to be conducted.
On 30 March 2001, the applicant was told by her father that the sample result had proved positive. She then told her father that, in the course of the second episode of producing urine, she had dropped the beaker into which she had urinated into the toilet bowl and then retrieved it. According to her, she did this at a time when Ms Woodyard’s back was turned. The testing procedure required that Ms Woodyard, as the chaperone, observe the passage of urine from the applicant into the beaker. For this purpose, the applicant was required to hold the beaker between herself and the toilet bowl, and to position herself so that the passage of urine was visible to Ms Woodyard, who stood outside the open door of the toilet cubicle. It was not disputed that, because of the difficulty the applicant was having, Ms Woodyard turned on a tap, in the hope that the running water would assist. According to the applicant, in order to do this, Ms Woodyard ceased to observe the applicant for approximately eight seconds, while she walked to a hand basin, turned on the tap and returned. During this time, the applicant said that she dropped the beaker into the toilet bowl, without it hitting the sides of the bowl, retrieved it and wiped excess water from the outside of the beaker on her leg in order to dry it. She did not notify Ms Woodyard that she had dropped the beaker because she felt under pressure by reason of the fact that she was delaying a number of people.
Ms Woodyard’s version was that it was unnecessary for her to walk away from the open door of the toilet cubicle in order to turn on the tap. She merely had to turn to a hand basin beside her. As a consequence, she lost vision of the applicant only for a split second when she looked at the tap to position her hand on it.
The Tribunal found that at all relevant times Ms Woodyard did observe the applicant other than for the split second when she turned towards the tap. It rejected the applicant’s evidence that Ms Woodyard had to walk to the basin to turn on the tap. It did not believe the applicant’s evidence that Ms Woodyard turned her back and walked to the basin and lost vision for approximately eight seconds. The Tribunal found it strange that the applicant would not have said something if she had dropped the beaker into the toilet bowl, either to Ms Woodyard at the time, or to her father between the date of the event and the communication of the result of the test. In its reasons for decision, the Tribunal recorded that no issue was raised by the applicant or her father as to the drug testing procedures. The Tribunal was in any event satisfied that the protocols followed were consistent with the ASDA Act, the ASDA Regulations and the relevant scheme.
The Agency’s discretion
In reviewing the decisions of the Agency, the Tribunal was standing in the shoes of the Agency as the original decision-maker, for the purpose of making the correct or preferable decision on the material before the Tribunal. By s 43 of the AAT Act, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. Counsel for the applicant contended that the Tribunal made an error of law in failing to exercise a discretion in relation to the applicant’s case. In particular, the Tribunal failed to take into account the five matters identified in the particulars of the grounds in the version of the notice of appeal filed on 7 December 2001.
If, in making its initial decision, the Agency was invested with a statutory discretion, then plainly the Tribunal also had, and was bound to exercise as the occasion arose, such discretion. The first question, therefore, is whether the Tribunal was exercising a discretionary power of the Agency. To answer this question, it is necessary to look at the relevant statutory scheme.
Section 6 of the ASDA Act establishes the Agency. Section 7 gives it the usual attributes of a statutory body corporate. Section 8 provides:
“The objects of the establishment of the Agency are:
(a) to deter the use of drugs or doping methods in sport; and
(aa) to facilitate the safety of participants in sporting competitions; and
(b) to encourage the development of programs to educate the sporting
community about matters relating to the use of drugs in sport; and(c) to advocate the international adoption of consistent and effective
anti-doping programs; and(d) to co-ordinate the development of a consistent and effective national
response to matters relating to the use of drugs in sport.”Section 9(1) sets out the functions of the Agency. Those relevant to the present case are:
“(a) such functions as are conferred on the Agency by a drug testing
scheme;(b) to provide drug testing services.”
Section 11 provides for drug testing schemes as follows:
“(1) The regulations may formulate one or more drug testing schemes.
(2) A drug testing scheme is a scheme that:
(a) is expressed to apply to:
(i) all competitors; or
(ii) a specified class of competitors; and
(b) sets out a schedule of drugs and doping methods for the scheme
and permitted levels (if any) in relation to each such scheduled
drug or method; and(c) authorises the Agency to request a competitor to provide a
sample for the purpose of detecting whether or not the
competitor has used such a scheduled drug or method; and(d) requires the Agency to establish and maintain a Register of
Notifiable Events for the scheme; and(e) requires the Agency to enter the name of a competitor on that
Register if the competitor fails, without reasonable cause, to
comply with a request by the Agency to provide such a sample;
and(f) requires the Agency to enter the name of a competitor on that
Register in specified circumstances, being circumstances that
consist of, or include, the circumstance that the competitor
has returned a positive test result in relation to such a sample;
and(g) requires the Agency to enter, on that Register, specified
particulars relating to a competitor referred to in paragraph
(e) or (f); and(h) requires the Agency to give written notice of the making, and
of particulars, of an entry in that Register to:(i) each relevant national sporting organisation in relation
to the competitor concerned; and(ii) each relevant sporting organisation (if any) in relation
to the competitor concerned; and(i) complies with the statement of competitors’ rights set out in
section 15.Specification of different circumstances
(3) Circumstances specified for the purposes of paragraph (2)(f) may
differ according to:(a) the fields of sporting activities in which competitors compete;
and(b) the drugs or doping methods revealed by positive test results.
Subsection 33(3A) of the Acts Interpretation Act 1901 not limited
(4) Subsection (3) does not, by implication, limit subsection 33(3A) of the
Acts Interpretation Act 1901.Schedule may apply, adopt or incorporate matters contained in other
instruments(5) The schedule referred to in paragraph (2)(b) may make provision for
or in relation to a matter by applying, adopting or incorporating, with
or without modification, any matter contained in any other instument
or writing made by a sporting administration body:(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time.”
Section 14 provides:
“For the purposes of the application of this Part to a particular drug testing scheme, a positive test result, in relation to a competitor who competes in a particular field of sporting activity, is a finding, made:
(a) by an accredited laboratory; or
(b) using specified analytical techniques and equipment;
by means of testing of a sample provided by the competitor, to the effect that:
(c) the testing reveals the presence of a drug in the sample or the use of
a doping method by the competitor, being a drug or doping method:(i) that is included in the schedule of drugs and doping methods
set out in the scheme; and(ii) that is specified by the scheme to be a drug or doping method
applicable to that field of sporting activity; and(d) if that schedule sets out a permitted level in relation to that drug or
doping method and in relation to that field of sporting activity—the
testing reveals that the permitted level has been exceeded.”Section 15(4) provides that a competitor has a right to apply to the Tribunal for review of a decision of the agency to enter the competitor’s name and particulars on the register of notifiable events for the scheme. Section 16 requires the removal of the name from the register if the Tribunal sets aside the decision.
Section 17G provides that a drug testing scheme may empower the Agency to make orders, known as drug testing orders, for the scheme. Such orders can be made, for example, as to the schedule of drugs and doping methods for the scheme, or as to procedures for dealing with a sample.
Section 65B of the ASDA Act provides for the establishment of the Australian Sports Drug Medical Advisory Committee (“ASDMAC”). The functions conferred on ASDMAC by s 65C include such functions as are conferred on it under a drug testing scheme. These may include conducting investigations relating to positive test results, approving the use of scheduled drugs for therapeutic purposes and disclosing, to sporting administration bodies, information arising out of the entry of competitors’ names on the register of notifiable events for the scheme.
The ASDA Regulations contain some of the details of any drug testing scheme formulated under s 11(1) of the ASDA Act. Regulation 6 provides that there is to be a drug testing scheme called Scheme A, which applies to all competitors, and consists of the requirements of Pt 2 of the ASDA Regulations and any drug testing orders made under reg 7. The Regulations then make provision for various aspects of the process of obtaining samples and testing them. Regulation 26 requires the Agency to establish and maintain a register of notifiable events for each drug testing scheme. Regulation 29 provides:
“(1) This regulation applies if:
(a) the Agency asks a competitor for a sample under regulation
17; and(b) the competitor gives the sample in response to the Agency’s
request; and(c) the result of the relevant test of the sample is positive; and
(d) the relevant submission period has ended; and
(e) the Agency has considered any submission that the competitor
has given to the Agency under paragraph 45 (2) (a) or 48 (1)
(a); and(f) the Agency is satisfied that the procedures for collecting and
dealing with the sample mentioned in regulation 20 that the
relevant orders require the Agency to comply with strictly
have been strictly complied with; and(g) the Agency has considered any other relevant circumstances;
and(h) the Agency has decided that the test result is valid and must be
entered on the relevant register.(2) As soon as practicable, the Agency must enter on the relevant register:
(a) the name of the competitor; and
(b) the details of the test result; and
(c) any information about the competitor that the relevant orders
require the Agency to enter in the circumstances.(3) The Agency must also enter that information on the relevant register
in the circumstances (if any) stated in the relevant orders.(4) In this regulation:
relevant circumstances includes the following circumstances:
(a) an investigation conducted by the ASDMAC under
subregulation 64 (1), or an analytical investigative body under
regulation 25, in relation to the sample, has revealed that the
positive test result is not attributable to naturally occurring
levels of the substance concerned;(b) the competitor had approval from the ASDMAC or a
therapeutic approval body for the use of the drug concerned
for therapeutic purposes;(c) any circumstances stated in the relevant orders for this
subregulation.relevant submission period means:
(a) if only Part A of the competitor’s sample has been tested under
the relevant scheme — the submission period mentioned in
subregulation 45 (2); and(b) if both Part A and Part B of the competitor’s sample have been
tested under the relevant scheme — the submission period
mentioned in subregulation 48 (1).relevant test means:
(a) if only Part A of the competitor’s sample has been tested
under the relevant scheme — the testing of Part A of the
sample; and(b) if both Part A and Part B of the competitor’s sample have been
tested under the relevant scheme and the testing of Part B of
the sample confirms the result of the testing of Part A of the
sample — the testing of Part A and Part B of the sample.”Regulation 31 requires the Agency, if it has entered information about a competitor on a relevant register, within a reasonable time to give written notice of the entry to each relevant national sporting organisation, sporting organisation (if any) and government agency in relation to the competitor. Part 2 of the ASDA Regulations also includes provisions about the rights of competitors. This Part includes regs 45 and 48, which contain provisions giving a competitor whose sample has tested positive (in the case of reg 45 Part A of the sample and in the case of reg 48 Part A or Part B of the sample) a right to make a submission setting out any information or evidence that may affect the validity of the results of the test.
Part 3 of the ASDA Regulations provides for the functions and procedures of ASDMAC. By reg 64, ASDMAC may investigate a positive test result to find out whether the result was caused by naturally occurring levels of the substance concerned. ASDMAC may also give a competitor approval to use a scheduled drug or doping method for therapeutic purposes.
There are also in force the Australian Sports Drug Agency Testing (Scheme A) Orders 1999 (“the Scheme A Orders”). Again, they deal in some detail with procedures for the collection and testing of samples. Of relevance for the present case are clauses 59 and 61. The former provides:
“For paragraphs 29 (2) (c) and 30 (2) (c) of the Regulations, in addition to the name of the competitor, the Agency must enter on the Scheme A register the following details:
(a) a statement that the Agency has decided, under paragraph 29 (1) (h)
or 30 (1) (i) of the Regulations, that the positive test result is valid
and must be entered on the Scheme A register;(b) if the competitor is under 18 — the competitor’s date of birth;
(c) the sport in relation to which the sample was requested;
(d) if the Agency asked a sporting administration body, under paragraph
17ZC (1) (a) of the Act, to arrange for the competitor to be asked to
give the sample — the name of the sporting administration body;(e) the State, Territory or country in which the request was made;
(f) a description of the reason why the sample was requested;
(g) the date on which the sample was given;
(h) a description of the reason why the Agency decided to make the entry
on the Scheme A register, that includes:(i) the name and class (if any) of the relevant scheduled drug or
doping method detected that caused the positive test result
and any other drug or doping method detected by the test; and(ii) if the schedule of drugs and doping methods for Scheme A sets
out a permitted level for the drug or doping method detected
for the sport in relation to which the competitor was asked for
a sample — the fact that the permitted level is exceeded;(i) the name of any sporting administration body to which the Agency has
given, or intends to give, notice about the entry under regulation 32;(j) the details of any action taken by any sporting administration body in
relation to the positive test result.”Clause 61 provides that the schedule of drugs and doping methods for Scheme A consists of each list of prohibited drugs and doping methods, as in force from time to time, kept by each sporting administration body mentioned in Sch 1. It also provides that the permitted level (if any) for each of those drugs and doping methods in relation to a particular sport is the amount mentioned in that list of prohibited drugs and doping methods applicable to the sport. In the list of sporting administration bodies in Sch 1, Athletics Australia is included.
The provisions relating to the function that the Agency has discharged, and the Tribunal was discharging, in relation to the applicant’s drug test do not contain an express grant of discretionary power. The drafting convention that the word “may” should be used when a discretion is conferred has not been followed. That convention was made particularly strong by the enactment of s 33(2A) of the Acts Interpretation Act 1901 (Cth), which came into operation on 8 December 1987, prior to the passage of the ASDA Act. If Parliament, or the framer of the ASDA Regulations, had intended to confer a discretionary power on the Agency, it might have been expected that it would have done so in the conventional form.
Counsel for the applicant contended that reg 29(1)(g) and (h) of the ASDA Regulations confer the discretion. Taken together, those provisions require that the Agency first consider “any other relevant circumstances” and then make two decisions. The first decision is that the test result is valid. It is conceded that this would not involve any discretion. The second decision is that the test result must be entered on the relevant register. It is said that this function inevitably imports a discretion, given that it involves the consideration of “any other relevant circumstances”.
Regulation 29(1) does not itself confer a power or function on the Agency. It simply lists the circumstances in which the regulation applies. The operative part of reg 29 is subreg (2). Subregulation (2) is definitely not expressed in terms of a discretion. If the appropriate circumstances apply, the Agency “must” enter on the relevant register the required information. If the circumstances listed in subreg (1) apply, the effect of the regulation is mandatory.
The difficult point of interpretation of reg 29 arises from the definition of “relevant circumstances” in subreg (4), and particularly from the use of the word “includes” in that definition. Ordinarily, when a word or phrase is defined by the use of the word “includes”, the intention is taken to be that the word or phrase should have its ordinary meaning, with the addition of the element or elements following the word “includes”. There have been difficulties identified in some cases, especially when some of the elements following the word “includes” are elements that would fall within the natural and ordinary meaning of the word or phrase, and other elements following the word “includes” would not fall within that meaning. It can then be said that the intention is to define the word or phrase exhaustively. See Dilworth v The Commissioner of Stamps [1899] AC 99 at 106, Y.Z. Finance Company Pty Limited v Cummings (1964) 109 CLR 395, Lamont v Commissioner for Railways (1963) 80 WN (NSW) 1242 and the other examples given in Pearce and Geddes Statutory Interpretation in Australia 5th ed. 2001 at [6.56] – [6.59]. In the present case, no doubt relying on the normal practice in relation to the use of the word “includes”, counsel for the Agency conceded that the use of the word “includes” in the definition of “relevant circumstances” in reg 29(4) of the ASDA Regulations suggested that the definition was not exhaustive and it is therefore possible that there could be relevant considerations that are not mentioned.
In my view, this concession is incorrect. In my view, the context and purpose of reg 29 indicates that, while the definition of “relevant circumstances”, is not expressed as an exhaustive definition, the effect of reg 29 is that the Agency cannot consider as relevant circumstances other than those set out in reg 29(1) and those falling within the definition of “relevant circumstances” in reg 29(4). It must be remembered that the source of the power to include a provision of this nature in a drug testing scheme is s 11(2)(f) of the ASDA Act. By that provision, the regulations are permitted to formulate a scheme that requires the Agency to enter the name of a competitor on the register in specified circumstances. Those circumstances may include circumstances other than that the competitor has returned a positive test result in relation to a sample. Whatever the circumstances, they must be “specified”. In my view, leaving it to the Agency, or to the Tribunal, or to the Court, to determine what were relevant circumstances would have the result that the circumstances would not be “specified”. A scheme that required the Agency to enter the name of a competitor on a register in circumstances that were not “specified” would be beyond the power given by s 11(2)(f). In that respect, the scheme would be invalid. If the words of reg 29 can reasonably be construed to avoid them being ultra vires the regulation-maker, such a construction should be adopted. Put another way, the Court should not construe the regulation so as to render it invalid, if there is another construction reasonably open. In the case of reg 29, not only is a construction that favours validity reasonably open, it is the preferable construction on the words of the regulation itself.
The essential element for the application of reg 29 referred to in subreg (1)(g) is that the Agency “has considered any other relevant circumstances”. The use of the word “other” prompts the question, other than what? The obvious answer is, other than those already listed in the preceding paragraphs in reg 29(1). Each of the elements specified in pars (a) – (f) is plainly a relevant circumstance. The Agency must consider all of them, as well as any “other” relevant circumstances. In my view, the sensible meaning of reg 29 is that the other relevant circumstances are those referred to in the definition of “relevant circumstances” in subreg (4). The word “includes” is used because the definition is not exhaustive. The term includes the circumstances referred to in subreg (1)(a) – (f).
If this construction were adopted, it would be clear that the Agency was obliged only to consider the circumstances listed in reg 29(1)(a) – (f) and those referred to in the definition of “relevant circumstances” in reg 29(4). (So far as I have been able to ascertain, the Scheme A Orders do not contain any reference to any other circumstances, for the purpose of expanding the definition by reference to par (c).) In my view, that is the correct construction. There is only one reservation. If the construction that I think is correct were the one the drafting officer wished to produce, it would have been easier to insert a definition of “other relevant circumstances” instead of a definition of “relevant circumstances” and to use the word “means” in that definition, rather than the word “includes”. In view of this reservation, in case my conclusion on the construction of reg 29 is wrong, and because of the concession of counsel for the Agency, I proceed to consider the effect of reg 29(1)(g) and (h) on the assumption that the Agency was obliged to consider relevant circumstances not specifically listed in subreg (1)(a) – (f) or in the definition of “relevant circumstances” in subreg (4).
The determination of what other circumstances are relevant must depend upon the nature of the function being exercised by the Agency pursuant to reg 29 of the ASDA Regulations. It must be borne in mind that, for this purpose, the Agency is exercising the functions referred to in s 9(1)(a) and (b) of the ASDA Act, being functions conferred on it by a drug testing scheme and the provision of drug testing services. As summarised in reg 29(1), the procedure involves a number of steps. The Agency asks a competitor for a sample. The competitor gives the sample. The agent tests the sample (reg 23) or asks an accredited laboratory to test the sample (reg 24). In some cases, it may do both. The relevant submission period, referred to in reg 29(1)(d) is a period of seven days from when the competitor receives written notice that Part A of the sample has tested positive (reg 43(2) and reg 45(2)) or a period of seven days after the competitor receives written notice that the result of the testing of Pt B of the sample is positive (reg 47(2) and reg 48(1)). If any submission is made, the Agency must consider it. It must then consider the matters in reg 29(1)(f) and form a view as to whether the procedures for collecting and dealing with the sample have been strictly complied with.
The task that ultimately confronts the Agency is to decide whether the test result is valid. I do not accept the submission of counsel for the applicant that there are two separate decisions to be made for the purposes of reg 29(1)(h). In my view, if the test result is valid, the Agency is obliged to act in accordance with reg 29(2), by entering the required information on the register. The task is to decide whether “the test result is valid and must be entered”, in the sense that the result is valid and therefore must be entered. The “other relevant circumstances” for the purposes of reg 29(1)(g) can only be circumstances going to the validity of the test, and not those going to the consequences of a decision that a positive test is valid. This construction is confirmed by reference to the content of reg 29(1)(e) and (f). The submissions that can be made pursuant to reg 45(2) and reg 48(1) are submissions concerning information or evidence that may “affect the validity of the results of the testing”. Similarly, if the test result were positive because of naturally occurring levels of the substance concerned, or because of approved use of the substance for therapeutic purposes, the positive result would be falsified in terms of its use as a valid result for the purposes of a drug testing scheme. The concern of the Agency, in the exercise of this function, is the validity of the test result. It can only take into account circumstances that would tend to falsify such a test.
This construction is also confirmed by consideration of the limits on the role of the Agency. It does not determine what drugs or doping methods are to be prohibited. That function is committed by cl 61 of the Scheme A Orders to the relevant sporting body. The Agency does not determine the permitted level, if any, for each drug or doping method. That is for the sporting body. The Agency does not decide the penalty, if any, to be imposed on an athlete in consequence of a positive test. Again, that is for the relevant sporting body. Any mitigating circumstances accompanying a valid, positive test are matters for consideration by the particular sporting body. Some may impose mandatory periods of disqualification. Others may decide the appropriate penalty on a case-by-case basis. All that the Agency does is to request samples, take them, test them and, if the test result is positive, determine whether it is valid. To the extent to which circumstances not referred to specifically in reg 29 are to be taken into account, they are limited to circumstances going to this process. They do not include matters that might go to penalty.
The applicant’s circumstances
In this context, it is necessary to examine the five particular circumstances that the applicant claimed the Tribunal should have considered as “other relevant circumstances”, before affirming the Agency’s decision. These are the five circumstances listed in the particulars following the grounds in the version of the notice of appeal filed on 7 December 2001.
At the outset, it is fair to note that these five circumstances were not advanced to the Tribunal as “other relevant considerations” that it should consider. As the Tribunal recorded in its reasons for decision, the applicant’s father raised as the sole issue in the case the question whether the sample was tampered with, by the alleged dropping of the beaker into the toilet bowl. The five circumstances have been selected from among the material that was before the Tribunal, by counsel for the applicant, for the purpose of arguing that the Tribunal should itself have selected them and taken them into account as “other relevant considerations”.
The extent to which the Tribunal is obliged to be proactive is a difficult question. It is possible to have considerable sympathy with the proposition that the Tribunal is obliged only to determine the issues placed before it by the parties. It must be recognised, however, that at least in some circumstances, the Tribunal is obliged to look at issues that are not raised directly. It can only do so, however, if those issues are apparent on the material before it.
The first issue relied on by the applicant is that she was not of full age. This is apparent from the application for review, lodged with the Tribunal on 15 May 2001, in which the applicant’s date of birth is given as 7 February 1984. This made her seventeen years and three months old at the time of the application. The Tribunal was well aware of this, particularly having ordered that information as to the applicant’s identity be suppressed because of her infancy.
The second consideration advanced was that the applicant presented for medical examinations and blood tests on a monthly basis prior to 4 March 2001 and there was no evidence to suggest that she had ever used drugs included in the schedule of drugs or doping methods in the Scheme A Orders prior to 4 March 2001. This alleged fact was asserted by the applicant’s father in a telephone conversation with Ms Anne Gripper, the Manager, Drug Testing of the Agency, on 2 April 2001. It is recorded in Ms Gripper’s note of that telephone conversation in the following terms:
“He said that Heidi has had regular monthly checkups including ‘full bloods’ and nothing has ever shown up before. She had been seeing Dr Peter Fuller – the best sports doctor in Australia. He suggested that I call Dr Fuller to find out about Heidi’s history with him.”
The allegation was repeated in a letter dated 10 April 2001 from the applicant to the Agency, in the following terms:
“My doctor, Dr. Peter Fuller, has been made aware of the allegations and is quite disturbed. I present for medical examinations and blood tests frequently and in his opinion there is no evidence to suggest the use of the agents prescribed [sic] in the samples provided. He has indicated that he will provide appropriate medical reports if required.”
The third consideration advanced was that “the applicant does not fit the profile of an athlete using any of the prescribed [sic] substances”. This was alleged by the applicant’s father, in a letter of 10 April 2001 to Ms Gripper in the following terms:
“As you pointed out, Heidi doesn’t even resemble the profile of an athlete using such substances.”
Also, in his evidence to the Tribunal in the course of its hearing, the applicant’s father referred to discussions with Ms Gripper and alleged that she had said that “Heidi didn’t fit the profile of an athlete on substances of that nature.”
The fourth consideration advanced was that the positive test result may have been explained by circumstances other than the ingestion of stanozolol and nandrolone by the applicant. Again, this was an assertion made in the applicant’s father’s letter of 10 April 2001. The letter contains a reference to a conversation Mr Riordan allegedly had with Dr Fuller about those issues and states that Dr Fuller “pointed out that there is evidence to suggest that metabolites, resembling those found in Heidi’s test, can evolve from the use of creatine.”
Finally, the applicant advanced the consideration that stanozolol and nandrolone do not benefit athletes engaged in middle distance running. Again, this was an assertion in Mr Riordan’s letter of 10 April 2001.
It is worth noting that no attempt was made to adduce evidence before the Tribunal to support the allegations made in the last four of these considerations. Dr Fuller was not called to give evidence, and no report from him was tendered, to show that he had tested the applicant on a monthly basis and found no evidence that she used prohibited drugs or doping methods, or his alleged opinion that the positive test result may have been explained by circumstances other than the ingestion of the drugs found. No evidence of an expert nature was called, in an endeavour to substantiate Mr Riordan’s statements about the profile of an athlete using prohibited substances, or the absence of benefit to athletes engaged in middle distance running. Counsel for the applicant argued that these allegations had been put in writing a substantial time before the Tribunal’s hearing and not contested. Counsel for the respondent submitted that, if they had been advanced at the hearing, at least some of them would have been controversial and would have been contested by expert evidence. He also contended that, because the Tribunal did not make any finding of fact about any of the considerations advanced, it cannot be argued on appeal that there is error of law in the Tribunal failing to take them into account.
The applicant’s age was not a consideration relevant to the validity of the test. It may have had some bearing on the appropriate penalty, but that was a matter for Athletics Australia, not for the Agency.
Even if established as facts, the second, third and last considerations alleged were not relevant considerations, for the purposes of the task the Tribunal was performing. At best for the applicant, they could only go to corroboration of her allegations about the dropping of the beaker into the toilet bowl. The truth or otherwise of the applicant’s story was a matter for the Tribunal. The issues of prior regular testing, profile and benefit to middle distance runners were part of the material before the Tribunal, available for its consideration as to the credit of the applicant. The use the Tribunal made of them was a matter for it. In finding against the applicant, the Tribunal was not obliged to mention every single item of material that might have conflicted with its finding. In Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368, Foster J referred to Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 251 per Lockhart J and to Blackwood Hodge (Australia) Pty Ltd v Collector of Customs, New South Wales (No 2) (1980) 3 ALD 38 at 49 per Fisher J. At 370, Foster J said:
“It could not be suggested that the Tribunal was under any obligation to isolate in its reasons every issue of fact and record a specific finding in respect of each of them. It is obviously sufficient, in light of the cases referred to above, and as a matter of common sense, that a sufficient compliance with the requirement of considering all issues of fact and giving adequate reasons occurs when the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored.”
As McHugh J said of the Refugee Review Tribunal in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (2000) 168 ALR 407 at [65]:
“it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.”
There is nothing to indicate that the Tribunal misused its opportunity of seeing the witnesses concerned. Indeed, given the nature of the applicant’s story, it is not surprising that the Tribunal accepted Ms Woodyard’s evidence and rejected that of the applicant.
The remaining consideration might be said to have gone to the validity of the test result. If it were to have been shown by expert evidence that a positive test for stanozolol and nandrolone could occur without those substances having been introduced directly into the body, but by metabolism from other substances that were not prohibited, this might falsify the result of the test. The mere allegation, by assertion from Mr Riordan that he had obtained this expert opinion from Dr Fuller, could not be elevated to the status of such expert evidence. It is true that the Tribunal is not bound by the rules of evidence. Nor is it bound to give equal weight to every item of material placed before it. It was entitled to disregard the passage in Mr Riordan’s letter of 10 April 2001, in the absence of other evidence. This was especially so when the applicant’s father had indicated to the Tribunal that the only issue in the case was the possible contamination of the sample by the dropping of the beaker into the toilet bowl.
Conclusion
I am of the view that the Tribunal did not have any discretion. Once it was satisfied that the positive test result was valid, the conclusion that the test result must be entered on the relevant register followed inevitably. The Tribunal was bound by reg 29(2) of the ASDA Regulations to affirm the decision of the Agency to enter the specified information on the relevant register.
If the Tribunal did have a discretion, or was obliged to take into account circumstances other than those referred to in reg 29, in the present case it made no error of law. There were no circumstances before the Tribunal that would give rise to the exercise of any discretion favourably to the applicant. There were no “other relevant circumstances”, for the purposes of reg 29(1)(g), that would bear upon the question of the validity of the positive test result. For these reasons, the application must be dismissed.
The applicant was under eighteen at the time the proceeding was commenced. One of the purposes of requiring that an infant bring a proceeding by his or her next friend is that there be an adult against whom an order for costs can be made, in the event that the proceeding is unsuccessful. There appears to be no reason why costs should not follow the event in this case. The proper order is that the respondent’s costs be paid by the applicant’s next friend and father.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate:
Dated: 5 July 2002
Counsel for the Applicant: J W K Burnside QC with D A Siemensma Solicitor for the Applicant: Margot Foster Counsel for the Respondent: J E Marshall Solicitor for the Respondent: Moray & Agnew Date of Hearing: 18 April 2002 Date of Judgment: 5 July 2002
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