Posted 13/11/2014 by Jaan Murphy
The ‘joint investigation’ by ASADA and the AFL into the potential use of prohibited substances was legal, the Federal Court decided. The 123 page judgment was handed down in September 2014, but has been appealed.
Background
In February 2013, the Australian Sports Anti-Doping Authority (ASADA) and the Australian Football League (AFL) agreed to conduct a ‘joint investigation’ into the supplements program implemented by Essendon Football Club (Essendon) in 2011-2012.
One reason that this approach was taken was that the AFL had extensive investigative powers under the contracts between the AFL, players and officials, which at the time were superior—to those of ASADA. This meant that the AFL could require players and Mr Hird, Senior Coach of Essendon to answer questions and provide information to the AFL (subject to a limited right to claim the privilege against self-incrimination).
ASADA used the information obtained from interviews (and other sources) to prepare an Interim Report most of which was provided (minus certain sensitive information) to the AFL in August 2013. This resulted in the AFL bringing disciplinary charges against Essendon and Mr Hird, which were settled by agreement. ASADA also issued ‘show cause notices’ to 34 present and former Essendon players in June 2014, a step in the anti-doping rule violation enforcement process.
The Federal Court proceedings
Following the issue of the show cause notice, Essendon and Mr Hird commenced legal proceedings, alleging that:
- ASADA had no power to conduct a ‘joint investigation’ that involved the use of the AFL’s ‘compulsory powers’
- the joint investigation was undertaken for improper purposes, and
- ASADA breached its confidentiality obligations during the investigation (by providing the Interim Report to the AFL).
The Court rejected these arguments.
The power to conduct ‘joint investigations’
Justice Middleton noted that the purpose of judicial review is to determine the legality (rather than the correctness) of government action. He restated the long-held position that whether any investigation is lawful or not will depend upon its purpose and conduct. He noted that whilst the Australian Sports Anti-Doping Authority Act 2006 (the Act) did not provide an express power to conduct a ‘joint investigation’, it did provide ASADA with the power to do all things ‘convenient’ to be done ‘in connection’ with its functions. This could include calling upon the assistance or co-operation of a sporting administration body, like the AFL, in investigating possible anti-doping rule violations. As a result, the label given to the investigation was of little relevance, and the contention that ASADA could not conduct ‘joint’ investigations as ‘a general proposition’, was ‘too wide’ and was dismissed.
The Court also rejected submissions related to the legality of the conduct of the investigation itself, including that ASADA was not able to conduct joint interviews with the AFL. It noted that the Act does not limit the persons who may co-operate with or assist ASADA. Therefore, the joint interviews were legitimate.
The purpose of the ‘joint investigation’
Justice Middleton found that ASADA and the AFL had different, but related, purposes for conducting the ‘joint investigation’.
- ASADA’s purpose was to investigate allegations of anti-doping rule violations, and not to ‘harness’ the AFL’s compulsory powers (the investigation would have proceeded in any case).
- The AFL, also concerned with anti-doping rule violations, was interested in the governance of its clubs (such as Essendon) to ensure its anti-doping policy was being properly implemented.
Because ASADA’s purpose was to investigate anti-doping matters (and it acted within the confines of the Act and National Anti-Doping Scheme ), the investigation was not improper.
Provision of the Interim Report
The Court rejected the argument that ASADA breached its confidentiality obligations by providing the Interim Report to the AFL, noting:
- clause 4.21 of the National Anti-Doping Scheme expressly permits disclosure of information ‘in connection with’ matters other than those which are ‘for the purposes of’ an ASADA investigation,
- the Interim Report was given to the AFL for both ‘the purposes of’ and ‘in connection with’ ASADA’s continuing investigation, and
- the Interim Report did not include all information gathered by ASADA, and deliberately omitted information that the AFL was not entitled to (e.g. sensitive medical information).
The Court also held that by knowingly being in the interview room with both AFL and ASADA personnel, aware of their contractual obligations, and by responding to each and every question ‘it can hardly be said that Mr Hird and the Essendon players and personnel did not knowingly consent to any information being disclosed then and there to all in the interview room’ (including the AFL).
Why is the case important?
First, from a practical perspective, it allows the Anti-doping rule violation enforcement process to proceed. It also reaffirms the long-held view that the Australian anti-doping system was designed to be collaborative in nature, allowing it to operate as intended.
Second, it makes useful observations about joint investigations conducted by government and non‑government agencies (albeit most directly relevant to anti-doping).
Third, it provides a useful restatement on the use of extrinsic materials in the interpretation of legislation (including international treaties), with the Court noting that in this case, they indicated general support for the validity investigation, and for ASADA relying on the AFL’s contractual powers of compulsion.
The appeal
Mr Hird appealed the decision. The appeal was heard by the Full Federal Court in November 2014.