Justices Kenny, Besanko and White of the Federal Court have handed down their unanimous judgement dismissing James Hird’s appeal in connection with high profile ASADA investigation into the Essendon Football Club’s (Essendon) 2011/2012 supplements program.

For a summary of the primary judgement and the regulatory context, see our earlier article Football and administrative power – the case of Essendon Football Club v CEO of ASADA.

The Full Federal Court decision confirms the Federal Court’s earlier decision to reject an application by Hird and Essendon for judicial review of the decision of the CEO of ASADA to issue notices under clause 4.07A of the National Anti-Doping Scheme (NAD Scheme) to 34 current and former Essendon players notifying them of a possible ‘non-presence anti-doping rule violation’[1].  This article explains some key elements of the decision.

GROUNDS OF APPEAL

Hird’s fundamental submission on appeal was that the primary judge had made a legal error in finding that there was a statutory basis for ASADA to conduct a joint investigation with the AFL into possible anti-doping rule violations by Essendon personnel and players.[2]

Hird’s main arguments are summarised as follows:

  • that the ‘joint’ or cooperative investigation was beyond the power provided for in the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act)
  • that by relying on the AFL’s powers to compel players to attend for interview the CEO of ASADA acted unlawfully and further that this meant that any evidence obtained during the player interviews could not be relied upon by ASADA to issue the show cause notices (meaning those notices were invalid)
  • that the CEO of ASADA acted unlawfully in disclosing NAD Scheme personal information to the AFL in the interview room.

WAS THERE A POWER TO CONDUCT A ‘JOINT INVESTIGATION’?

In relation to Hird’s primary submission that the joint investigation between ASADA and the AFL was beyond the power provided for in the ASADA Act, their Honours said that, whilst an investigation by ASADA was required to be independent in the sense that ASADA was to make its own decisions about the conduct of the investigation and the significance of the information gathered, the ASADA Act and the NAD Scheme contemplated that ASADA and sports administration bodies (SABs)(such as the AFL) would cooperate closely during anti-doping investigations.

The Full Federal Court agreed with ASADA that it and the AFL conducted separate investigations for their own distinct, but complementary and overlapping objectives and in the course of those investigations each body cooperated closely with the other and subsequently made separate decisions within their own complementary areas of responsibility.

The Full Court said that cooperation between public authorities and the sports community was also in the contemplation of international anti-doping conventions and instruments, to which the ASADA Act, ASADA Regulations[3] and NAD Scheme (collectively ‘legislative scheme’) refer.

In addition, the Full Court considered clause 2.04(j) of the NAD Scheme which states:

A sporting administration body must:

(j)  refer all instances of possible anti‑doping rule violations to the CEO for investigation and cooperate with any investigation, as required

Hird had argued that, once the AFL referred a matter to ASADA for investigation under clause 2.04(j), the AFL’s investigative role, and its power to compel players to take part in the investigations, ended.

The Full Court said there was nothing in the legislative scheme to suggest that this conclusion was correct and, in fact, the suggestion was contrary to the AFL’s anti-doping responsibilities under the sporting administration body rules.[4]

The Full Court said that the legislative regime expressly contemplated that an SAB such as the AFL might be required to assist ASADA with its investigations into possible anti-doping rule violations. For example:

  • under section 22 of the ASADA Act, the CEO has the power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions. One of the functions of the CEO is to investigate possible violations of the anti-doping rules.[5]
  • the Court said the functions given to the CEO were conferred in general terms and the CEO was given a wide discretion to determine how to fulfil the functions conferred on him or her.[6]
  • as a result, their Honours held that the CEO’s power under section 22 was to be construed broadly and should not be read as being subject to an implied prohibition against collaborating or cooperating with an SAB in conducting an anti-doping investigation.

COULD ASADA LEGITIMATELY BENEFIT FROM THE AFL’S USE OF ITS COMPULSORY CONTRACTUAL POWERS OVER THE PLAYERS?

Pursuant to the Standard Player Contract entered into by each player with Essendon and the AFL, players are subject to the AFL Player Rules which provide the AFL with the power to investigate, obtain and take possession of documents and require players to attend or give evidence as directed at any investigation.

Hird argued that ASADA could not carry out an investigation in a way that ASADA benefited from those compulsory powers of the AFL. Rejecting this argument, the Court considered that:

  • the legislative regime contemplates cooperation between SABs and ASADA in investigating anti-doping rule violations
  • despite the lack of an express power to conduct a joint investigation, the legislation conferred broad discretion on the CEO to determine how to carry out an investigation and it could be considered ‘convenient’ to the performance of investigatory functions to call upon the assistance of an SAB such as the AFL.

On the question of whether engaging the AFL to participate in ASADA’s investigations resulted in an unlawful loss of the player’s common law rights against self-incrimination and exposure to civil penalty, the Full Federal Court rejected this submission. The court’s reasoning included that

  • upon becoming a player or official, Essendon personnel and players had voluntarily accepted the obligations under the AFL Player Rules and Anti-Doping Code to attend interviews and answer questions
  • the players had legal representation during the interviews
  • neither Hird nor any of the players objected to the presence of either the AFL or ASADA at the interviews or to answering any of the questions put to them.

It followed that because the use of the AFL’s powers to compel the players was lawful, the evidence obtained during those interviews could be relied upon by ASADA to issue the show cause notices and therefore these notices were not invalid.

WAS INFORMATION UNLAWFULLY DISCLOSED BY ASADA TO THE AFL DURING THE INTERVIEWS?

The Full Court confirmed the primary judge’s view that, because both the AFL and ASADA took an active role in conducting the joint interviews, and because information was simultaneously divulged and communicated by Hird and the players to the personnel of both the AFL and ASADA, there was no disclosure of any information by ASADA to the AFL that could amount to a breach of the non-disclosure provision.

NEXT STEPS

Their Honour’s dismissed the appeal with costs. Hird has not sought leave to appeal the decision to the High Court.

The decision means that the Full Court found the investigation process undertaken by ASADA, and the notices issued by it, were valid. As a result, the infraction notices and provisional suspensions of players directed by the AFL last year will continue to stand and Essendon must await the AFL Anti-Doping Tribunal’s decision on whether the past and present players were administered a banned substance. No doubt, some more interesting legal issues will arise before the administrative process embarked upon by ASADA against the Essendon Football Club comes to a full conclusion.