In early February 2013 the CEO of Australian Sports Anti-Doping Authority (ASADA) and the Australian Football League (AFL) agreed to conduct a joint investigation into the Essendon Football Club, players and personnel involved in a supplements program conducted by Essendon through 2011 and 2012.

In the course of the investigation, ASADA and the AFL agreed to use the AFL’s powers of compulsion available to the AFL under the AFL Player’s Rules and the AFL Anti-Doping Code, in order to compel Essendon players and personnel to attend interviews and answer questions.

The investigation resulted in the AFL and ASADA each making separate decisions an taking separate courses of action within their distinct areas of responsibility; the AFL brought disciplinary charges against Essendon and James Hird and the CEO of ASADA issuing show cause notices to a number of Essendon players.

Russell Kennedy acted for several Essendon players early on in the joint investigation and at that time questioned its legality.   

Essendon Football Club and its Coach, James Hird, brought proceedings against the CEO of ASADA alleging, amongst other things, that ASADA had no power to conduct the investigation in the manner it did. Claiming that, involving the use of the AFL’s “compulsory powers” to obtain information through interviews and the unauthorised disclosure of information to the AFL in the provision of an interim report was unlawful. The AFL and the Essendon Players were not parties to the proceeding.

The proceedings were brought under s 39B of the Judiciary Act 1903 (Cth), involving the judicial review of administrative action. The proceedings were issued the day after the issuing of notices to the then current and former players at Essendon under the Australian Sports Anti-Doping Authority Act 2006 (Cth) (‘the Act’) and Schedule 1 (‘the NAD Scheme’) of the Australian Sports Anti-Doping Authority Regulations 2006 (Cth) (‘the Regulations’). 

Essendon sought declarations and injunctive relief, but primarily sought to have the Notices given to the players set aside.  Hird also sought declarations and injunctive relief, seeking to prevent any similar notice being issued under the NAD Scheme in future.

The issues in the proceeding were as follows:

  • Did ASADA have the power to conduct a joint investigation with the AFL?
  • Did ASADA conduct the investigation for improper purposes, in particular 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 in order to assist the AFL to investigate and take action for the AFL’s own purposes?
  • Did ASADA breach the obligations of confidentiality or restrictions on disclosure imposed under its governing legislation in the conduct of the investigation, including the provision of the interim report to the AFL and Essendon?
  • Did ASADA act for improper purposes in providing information from the investigation, including the interim report to the AFL?

Middleton J dismissed the applications brought by Essendon and Hird and ordered that they pay the costs of the CEO of ASADA.  Middleton J stated that whether any investigation is lawful or not will depend upon the characterisation of its purpose, and the conduct and nature of that investigation.  He found the investigation of ASADA, was for the purpose of investigating anti-doping violations and that the nature and conduct of the investigation was lawful.

Whilst there was no express power to conduct a “joint investigation”, the CEO has the power to do all things “convenient” to be done “in connection” with the performance of his or her functions.  This includes doing anything incidental to, or conducive to, the performance of the elaborated functions in the ASADA Act.

Middleton J found that calling upon the assistance or co-operation of a sporting administration body, such as the AFL, could be convenient to the performance of an investigatory function into possible violations of anti-doping rules.  Likewise, assistance and co-operation of the AFL could also be convenient in monitoring the compliance by the AFL with its own anti-doping policies and practices, and for the purpose of publishing reports about the extent of that compliance. 

Middleton J was also not convinced by the characterisation of the conduct of the investigation by the applicants that in attending interviews with ASADA, where the AFL was present, involved the immediate and contemporaneous disclosure of information by ASADA. As it was the AFL had the power to request and obtain this information therefore it cannot be said that ASADA communicated or divulged the information to the AFL.

It was alleged that the CEO of ASADA agreed with the AFL to conduct the investigation for an improper purpose to take advantage of the AFL’s contractual “compulsion powers” and to abrogate the common law right against self-incrimination for Essendon players and personnel. Middleton J found that the desire to use or harness the AFL’s compulsion powers in the aid of ASADA’s investigation was not the purpose for conducting the investigation. ASADA’s purpose was to investigate possible anti-doping violations. Similarly, there was no suggestion in the proceedings that the players or personnel did not understand the nature of the contractual obligations, or rights they had given up, in return for the right or privilege to play or coach in the AFL.

Middleton J’s determination centred on his factual characterisation of the investigation, particularly by reference to the AFL contractual regime and the fact that the investigation and ASADA’s conduct were undertaken by ASADA for its legitimate purpose of investigating possible anti-doping violations. He found that the privilege against self-incrimination was effectively curtailed under the contractual regime entered into by Hird and the players. 

At the interviews, no claim to invoke the privilege against self-incrimination was made and 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. This regime in essence meant there was no “compulsion” by ASADA at all, nor any resultant abrogation of privilege against self-incrimination. Once Middleton J had reached these factual conclusions, he considered that contentions of Hird and Essendon in relation to the investigation being for an improper purpose had no foundation and could not be sustained.  

Hird and Essendon further contended 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 use of the term “for the purposes of, or in connection with” in the Act enabled alternative and different disclosures. That is the Act and the NAD Scheme expressly permitted disclosures of information “in connection with” matters other than those which are “for the purposes of” ASADA’s investigation. On this basis Middleton J considered that the Interim Report produced by ASADA was lawfully disclosed to the AFL for both “the purposes of” the continuing ASADA investigation, and “in connection with” the ASADA investigation. 

The decision provides useful guidance on:

  • the principles applying where an improper purpose, and possible plurality of purposes, is alleged in the exercise of a power; and
  • useful guidance on the interpretation of general powers and functions provisions expressed as “in connection with” or “for the purposes of”.