20140827 annotated asada opening submissions for closing

Filed on behalf of the Respondent

Prepared by: Craig Rawson / Christopher McDermott

Australian Government Solicitor

Address for Service: Australian Government Solicitor, Level 21, 200 Queen St, Melbourne, VIC 3000 [email protected]

File ref: 14097050

Telephone: 03 9242 1248 Lawyer's Email:

[email protected] [email protected]

Facsimile: 03 9242 1333 DX 50 Melbourne

FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY: VICTORIA

DIVISION: GENERAL

NO VID 327 OF 2014

ESSENDON FOOTBALL CLUB ACN 004 286 373

Applicant

THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN

SPORTS ANTI-DOPING AUTHORITY

Respondent

AND

NO VID 328 OF 2014

JAMES ALBERT HIRD

Applicant

THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN

SPORTS ANTI-DOPING AUTHORITY

Respondent

OUTLINE OF RESPONDENT’S OPENING SUBMISSIONS

CONFIDENTIAL INFORMATION VERSION

ANY CONFIDENTIAL INFORMATION HIGHLIGHTED IN YELLOW

Updated for closing submissions on 13 August 2014 in blue.

PAGE START NO(S)

A. Introduction; the four fundamental issues which arise 3

B. Overview of statutory scheme 4

C. Preliminary submissions concerning the statutory scheme 6

D. Extrinsic materials 7

The General Anti-Doping Convention 1994 (the 1994 Convention) 7

UNESCO International Convention Against Doping in Sport 2005 (the 2005 Convention)

9

The World Anti-Doping Code 2009 (the Code) 11

Second Reading Speech for the ASADA Bill 2005 13

Explanatory Memorandum to the Australian Sports Anti-Doping Authority Amendment Act 2009

14

Second Reading Speech for the 2009 Act 14

EM to the Australian Sports Anti-Doping Authority Amendment Regulations 2012 (No. 1)

14

The International Anti-Doping Arrangement (ADA) 2011 – 2014 14

Second Reading Speech for the ASADA Amendment Bill 2013 15

E. Submissions concerning the first fundamental issue 19

F. Submissions concerning the second and third fundamental issues 22

Amplitude of the expression ‘for the purposes of, or in connection with’ as it appears in s 13(1)(g)

27

Interaction between section 68 of the ASADA Act and clause 4.21 30

Interaction between section 72 of the ASADA Act and clause 4.21 of the NAD scheme

31

Interaction between section 71(2)(b) of the ASADA Act and clause 4.21 of the NAD scheme

32

G. Submissions on the fourth fundamental issue: multiple purposes 32

H. Additional issues which may arise (subject to resolution of the four fundamental issues canvassed above)

33

Reliance upon section 71 of the ASADA Act 33

Even if ASADA obtained information unlawfully, no permanent injunctive relief should be granted in respect of future use of such information

35

Any unlawfully obtained information would be subject to reacquisition by ASADA

38

Each applicant entered into contractual arrangements with the AFL authorising the very matters now complained of

38

ASADA could lawfully re-acquire all of the exact same information by the issue of disclosure notices under Division 3.4B of the NAD scheme

39

Other discretionary factors against the granting of relief 43

I. Other facts and matters as to why there should be no discretionary relief to Essendon or Mr Hird

43

Overview 43

Essendon and Hird were the proponents and instigators for the ASADA/AFL ‘joint investigation’

43

Support of and co-operation with the joint investigation by Essendon and Hird

46

No objections; praise for the investigation by Essendon and Mr Hird

49

Essendon and Mr Hird’s repeated public stance to support and fully co-operate with ASADA

52

Conclusion on the facts justifying denial of discretionary relief to Essendon and Mr Hird

56

A. Introduction; the four fundamental issues which arise

1. There are, essentially, four fundamental issues joined between the parties in these proceedings. Significantly, the Court’s adjudication of these four issues does not depend to any significant extent (or at all) on factual matters which are in dispute between the parties. Rather, they require the application of ordinary principles of statutory construction.

2. If the four fundamental issues identified below are resolved adversely to the applicants, there is no need for the Court to proceed and consider any additional issues referable to the grant of relief.

3. It is apparent from the applicants’ submissions that any prospect of relief in their favour hinges upon them succeeding with respect to one or more of the following three issues:

3.1. Upon the proper construction of the Australian Sports and Anti-Doping Authority Act 2006 (the ASADA Act) and the Australian Sports and Anti-Doping Authority Regulations 2006 (the Regulations) (including the National Anti-Doping (NAD) Scheme), was ASADA prohibited from entering into, and/or participating in, a joint investigation for the (principal) purpose of enabling it to obtain investigative information through the exercise of the AFL’s coercive powers (being information which ASADA could not itself compel the players or support personnel to provide to it)?1 Resolution of this issue will necessarily deal with an anterior issue raised by the applicants as to whether ASADA is authorised to conduct a joint investigation of any kind.2 (This is ‘the first fundamental issue’.)

3.2. Upon the proper construction of the ASADA Act and Regulations (including the NAD scheme), was ASADA prohibited from entering into, and/or participating in, a joint investigation for purposes which included the provision of information to the AFL to assist the AFL to decide whether to take disciplinary action against Essendon and/or Essendon support personnel, in circumstances where that disciplinary action:

3.2.1. did not depend upon proof of any violation of a specific anti-doping rule; but

3.2.2. related, instead, to perceived poor management/governance of anti-doping issues by Essendon and/or support personnel, of a kind which caused or contributed to the risk or actuality of anti-doping rule violations (ADRVs)?3

3.3. Upon the proper construction of the ASADA Act and Regulations (including the NAD scheme), was ASADA prohibited from providing information to the AFL for purposes which included enabling the AFL to decide whether to take disciplinary action as described above?4

1 This issue is dealt with in the applicants’ submissions at paragraphs 4.1, 4.2(a), 5.1 (1st part), 6.2(a), 260.1, 261.2, 264, 266, 267, 268.1, 268.2, 269.2 and 270.

2 This anterior issue is dealt with in the applicants’ submissions at paragraphs 263, 280-285 and 287. 3 This issue is dealt with in the applicants’ submissions at paragraphs 2.5(a), 2.6, 4.2(b), 4.3 (1st part), 5.1

(2nd part), 5.3 (2nd part), 6.2(b), 260.2, 260.3, 261.1, 264.3, 268.3, 271, 274-275 and 276-279. 4 This issue is dealt with in the applicants’ submissions at 2.5(a), 2.6, 4.3 (2nd half), 4.4, 5.3, 260.2, 260.3,

262, 264.3, 274-279 and 304-315.

(These are ’the second and third fundamental issues’.)

4. The second and third fundamental issues are obviously closely related; each directs attention to whether ASADA was empowered to disclose the information in question to the AFL for the described disciplinary purpose.

5. The ‘fourth fundamental issue’ which arises is this: if the applicants establish an absence of power because the purpose in question was improper/unlawful, was that purpose an ‘initiating and abiding purpose’ in the sense that ASADA’s participation in, or conduct of, the joint investigation would not have occurred but for the unlawful purpose?5

B. Overview of statutory scheme

6. For present purposes, it is sufficient to note the following:

6.1. The ASADA Act and Regulations implement the General Anti-Doping Convention 1994 (the 1994 Convention), the UNESCO International Convention Against Doping in Sport 2005 (the 2005 Convention), and the World Anti-Doping Code (the Code).6

6.2. The functions, powers, roles and responsibilities of the CEO/ASADA under the ASADA Act and Regulations are built upon, and were intended to complement, existing disciplinary standards in organised sports.

6.3. The ASADA Act specifically envisages that ‘sporting administration body rules’ could include rules directed to promoting compliance, by athletes and support persons, with the anti-doping rules – see ss 15(1)(a)(ii) and 15(2)(a) of the ASADA Act. That is, the ASADA Act envisages two separate but related sets of rules, namely:

6.3.1. the ‘anti-doping rules’ themselves (defined in s 4 of the ASADA Act to have the meaning given by the NAD scheme); and

6.3.2. ‘related’ rules (see s 15(1)(a)(ii), such as compliance rules directed to promoting observance of the anti-doping rules by athletes and support persons (see the examples of ‘related’ rules enumerated in s 15(2)).7

6.4. The ASADA Act stipulates that the NAD scheme must authorise the CEO to monitor, and report on, compliance by sporting administration bodies (such as the AFL) with their sporting administration body rules: see s 15(1)(b) and (d). Again, the language of the ASADA Act recognises that the ‘sporting administration body rules’ are separate from, and extend beyond, the anti-doping rules.

5 This issue is dealt with at 232 of the applicants’ submissions. 6 See s 9 of the Act, Regulation 3 and Schedule 1 to the Regulations which sets out the NAD scheme, and

cl 1.01 of the NAD scheme. 7 As noted below, the AFL’s Anti-Doping Code was incorporated into its Player Rules. The inter-linking of

those two sets of rules had the effect of requiring Clubs, and support persons, to engage with anti-doping issues in a manner which did not bring the sport into disrepute.

6.5. The ASADA Act also envisages that sporting administration bodies would assist, and give information to, ASADA in relation to matters such as (i) the extent of compliance with their sporting administration body rules (ss 15(1)(b) and 15(2)(a)) and (ii) investigations into possible violations of the anti-doping rules (s 15(2)(c)).

6.6. The ASADA Act confers a very wide array of functions upon the CEO in relation to anti-doping issues; these extend well beyond investigation of possible violations of the anti-doping rules. For example, s 21(1) enumerates a long list of functions in connection with ‘sports doping and safety matters’. The expression ‘sports doping and safety matter’ is defined very broadly in s 4 of the ASADA Act, and clearly extends beyond specific ADRVs.

6.7. Section 22 of the ASADA Act confers upon the CEO the power ‘to do all things necessary or convenient to be done for in connection with the performance of his or her functions’. This in turn includes the function specified in s 21(1)(o), which confers the function of doing anything incidental or conducive to the performance of any of the CEO’s other functions. The legislature has been at pains to confer upon the CEO/ASADA a very large array of functions and powers in relation to sports doping matters.

6.8. The amplitude and plenitude of the functions and powers conferred upon the CEO/ASADA under the Act are supplemented by cl 1.02(1)(c) which authorises the CEO to exercise powers and functions referable to the role and responsibilities of a National Anti-Doping Organisation for Australia under the 2005 Convention and the Code. The 2005 Convention and the Code each contemplate cooperative arrangements between ASADA and sporting administration bodies in order to detect, prevent, and eliminate sports doping (as elaborated below).

6.9. The amplitude and plenitude of the functions and powers of the CEO/ASADA under the ASADA Act are also supplemented by cl 1.02(1)(g) of the NAD scheme which confers upon the CEO ‘functions about performance of activities relating to sports doping and safety matters referred to ASADA or the CEO by a sporting administration body’. One such activity would be the provision of assistance to a sporting administration body in connection with investigation(s) by it of (i) possible doping rule violations and (ii) alleged non-compliance by Clubs and support personnel with disciplinary standards related to anti-doping issues. The respondent pauses here to note that there is no reason to suppose that the range of ‘activities’ contemplated by cl 1.02(1)(g) could not extend to questioning of players and support personnel in relation to investigations being carried out by sporting administration bodies, including pursuant to the exercise of their coercive powers.

6.10. A large number of specific provisions of the NAD scheme expressly contemplate a high measure of cooperation and collaboration between sporting administration bodies and the CEO/ASADA: see, for instances, cll 1.02A(2), 1.03(1), 1.03(2), 2.04(d), 2.04(e), 2.04(f), 2.04(h), 2.04(i), 2.04(j), 2.04(n) and 3.15.

7. The respondent pauses here to emphasise that the ASADA Act, Regulations and NAD scheme specifically contemplate that sporting administration bodies would have in place, and would maintain and enforce, ‘anti-doping policies and practices’ extending well beyond a simplistic stipulation that the anti-doping rules should not be violated. The legislative

scheme draws a clear and enduring distinction between the anti-doping rules, and other related rules:

7.1. Section 15(1)(a)(ii) refers to sporting administration body rules that ‘relate to the anti-doping rules’ – a concept clearly wider than a mere re-statement of the anti-doping rules. As noted above, rules about promoting compliance with the anti-doping rules by athletes and support persons (see s 15(2)(a)) would ordinarily be expected to go beyond a simplistic requirement to obey the anti-doping rules.

7.2. Section 68(7) specifically permits ASADA to disclose Customs-sourced information to a sporting administration body for purposes which include (i) ‘investigating possible breaches of a current policy of the body about drugs’ (s 67(7)(a)); and (ii) ‘determining whether to take action under such a policy of the body’ (s 67(7)(c)). This is returned to in paragraph 107 below.

7.3. There is an explicit distinction drawn between ‘anti-doping rules’ and ‘anti-doping policies’ in cll 1.06(1), 1.07(1), 2.01, 2.04(a)-(d),(g), and (h).

C. Preliminary submissions concerning the statutory scheme

8. The applicants’ basic contention in relation to improper/unlawful purpose is that ASADA was not authorised to (i) work cooperatively with the AFL, or (ii) disclose information to the AFL, for the purpose of assisting or facilitating the AFL’s disciplinary action against Essendon and its officials towards the end of the 2013 AFL season.

9. However, the legislative scheme recognises, on its face, a very close relationship or connection between (i) the objective of adherence to the anti-doping rules on the one hand, and (ii) enforcement by sporting administration bodies of appropriate rules, policies and practices related to the anti-doping rules on the other hand. This is hardly surprising. It is equally undeniable that the legislative scheme places a premium on investigative cooperation between sporting administration bodies and ASADA – not just in relation to possible ADRVs, but also with respect to investigations into alleged breaches of a sporting administration body’s anti-doping policy. A cursory comparison of the provisions of cll 2.04(d) and (j) of the NAD scheme bears this out.

10. This outcome is crucial for present purposes. In early 2013 the AFL clearly had concerns that were not limited to the existence of possible ADRVs. The concerns of the AFL extended to possible failures on the part of Essendon Football Club (Essendon) and its officials to comply with various aspects of its anti-doping policies. The CEO/ASADA was clearly authorised to (i) carry out an ‘investigation into the matter’ of suspected non-compliance by Essendon and its officials with the AFL’s anti-doping policies – see cl 2.04(d); and (ii) carry out an investigation into possible ADRVs by Essendon players – see cl 2.04(j).

11. Thus, the NAD scheme itself recognises, and is predicated upon, the existence of a close connection between possible ADRVs and adherence to general disciplinary standards with respect to anti-doping issues.

12. This feature of the legislative scheme necessarily informs the proper construction of cl 4.21, and other disclosure provisions in the scheme.

13. Both factually and legally, deficiencies in governance/management of anti-doping issues may have a connection with the possible commission of ADRVs.

14. Both applicants accepted the reality of this connection when, in August 2013, Essendon and Mr Hird agreed to the imposition of sanctions for disciplinary breaches - breaches which explicitly connected their acts and omissions to undermining the fight against doping in the AFL competition, thereby bringing the sport into disrepute.8 Twelve months later, the applicants seek to persuade the Court that (i) enforcement of the AFL’s disciplinary standards on the topic of anti-doping must be regarded, as a matter of law, as having no connection with ASADA’s investigation; and (ii) ASADA was not authorised to conduct a joint investigation with the AFL which had, as one of its purposes, the taking of disciplinary action to address non-compliance with the AFL’s anti-doping rules and policies.

15. The extraordinariness of the outcome for which the applicants contend is resoundingly reinforced when regard is had to the extrinsic materials relevant to the legislative scheme.

D. Extrinsic Materials

The General Anti-Doping Convention 1994 (the 1994 Convention)9

16. The 1994 Convention was entered into at Strasbourg on 16 November 1989, and entered into force for Australia on 1 December 1994 (having been acceded to on 24 April 1994). It is referred to in the ASADA Act in ss 4 and 9(a). It is also referred to in reg 4 and Sch 2 to the ASADA Regulations, and cl 1.01(1) of the NAD scheme. It is one of the Conventions underpinning the NAD scheme.

17. The Preamble to the 1994 Convention includes statements reflecting the following:

17.1. concern about the growing use of doping agents, and the consequences for the health of participants and the future of sport;

17.2. mindfulness that this problem put at risk the ethical principles and educational values embodied in the Olympic Charter; in the International Charter for Sport and Physical Education of UNESCO and in Resolution (76) 41 of the Committee of Ministers of the Council of Europe, known as the ‘European Sport for All Charter’;

17.3. cognizance of anti-doping regulations, policies and declarations already adopted by various member States and international sports organisations (such as the IOC);

17.4. awareness that public authorities and sports organisations have complementary responsibilities to combat doping in sport, notably to ensure the proper conduct, on

8 See Deed of Settlement dated 27 August 2013: JAH-7 to Mr Hird’s affidavit sworn 30 July 2014 and Document 5 in Section F of the Respondent’s tender bundle.

9 The General Anti-Doping Convention, acceded to on 24 April 1994, ATS [1994] 33 (entered into force 1 December 1994). This convention is also known as the Council of Europe Anti-Doping Convention, opened for signature 16 November 1989, CETS 135 (entered into force 1 March 1990).

the basis of the principle of fair play, of sports events and to protect the health of those that take part in them;10

17.5. recognition that these authorities and organisations must work together for these purposes at all appropriate levels;

17.6. an acknowledgment of earlier international initiatives such as Recommendation No R(88)12 – wherein it was noted that, as at 1988 (the year of that Recommendation), organisers of most major national and international competitions had already instituted mandatory doping controls (in-competition) as a condition of participation in sports events. That same Recommendation welcomed the decisions taken by several member States, and by some international sports federations, to institute mandatory out-of-competition doping controls, and called for adoption of those initiatives more generally; and

17.7. a determination to take further and stronger co-operative action aimed at the reduction and eventual elimination of doping.

18. Article 4 of the 1994 Convention states that parties shall adopt legislative, regulatory or administrative measures to restrict the availability and use in sport of banned doping substances and methods, including by:

18.1. making it a criterion for the grant of public subsidies to sports organisations that they effectively apply anti-doping regulations;

18.2. assisting sports organisations to finance doping controls and analyses;

18.3. withholding the grant of subsidies from public funds to persons who have been suspended following a doping offence;

18.4. encouraging and:

where appropriate facilitat[ing] the carrying out by their sports organisations of the doping

controls required by the competent international sports organisations whether during or

outside competitions;

18.5. encourag[ing] and facilitat[ing] the negotiation by sports organisations of agreements permitting their members to be tested by duly authorised doping control teams in other countries.

19. It is clear from the Preamble and Article 4 that the 1994 Convention contemplated institution of world-wide anti-doping regimes which would have, as their cornerstone, the contractual obligations of sports participants to provide samples (and other information) to sports organisations as a condition of their participation in sports.

10 Dictionary definitions of ‘complementary’ ascribe the following meanings: ‘forming a complement, completing’; ‘forming a satisfactory or balanced whole’; ‘combining in such a way as to enhance or emphasise the qualities of each other or another’; ‘harmonizing, reciprocal, interdependent or interrelated’.

20. Article 7 of the 1994 Convention is entitled: ‘Cooperation with sports organisations on measures to be taken by them‘. It provides, inter alia, that the Parties undertake to encourage their sports organisations to formulate and apply all appropriate measures against doping in sport.

UNESCO International Convention Against Doping in Sport 2005 (the 2005 Convention)11

21. The 2005 Convention was ratified by Australia on 17 January 2006, shortly before commencement of the ASADA Act. It is referred to in the ASADA Act in ss 4 and 9(a). It is also referred to in Regulation 4 and Schedule 2 to the ASADA Regulations, and cl 1.01(1) of the NAD scheme. It is another of the Conventions underpinning the NAD scheme. Significantly it gives binding force to the World Anti-Doping Code.

22. The Preamble to the 2005 Convention refers to (emphasis added):

22.1. an awareness that:

public authorities and the organisations responsible for sport have complementary

responsibilities to prevent and combat doping in sport, notably to ensure the proper

conduct, on the basis of the principle of fair play, of sports events and to protect the

health of those that take part in them.

22.2. a recognition that:

these authorities and organisations must work together for these purposes, ensuring

the highest degree of independence and transparency at all appropriate levels;

22.3. a determination to take further and stronger co-operative action aimed at the elimination of doping in sport; and

22.4. a recognition that the elimination of doping in sport is dependent in part upon progressive harmonisation of anti-doping standards and practices and cooperation at the national and global levels.

23. The purpose of the Convention was stated to be:

to promote the prevention of and the fight against doping in sport, with a view to its

elimination.

24. Article 7 is titled ‘Domestic coordination’ and states that (emphasis added):

States Parties shall ensure the application of the present Convention, notably through

domestic coordination. To meet their obligations under this Convention, States Parties may

rely on … sports authorities and organisations.

11 UNESCO International Convention Against Doping in Sport, opened for signature 19 October 2005, 2419 UNTS (entered into force 1 February 2007).

25. Article 9 provides that (emphasis added):

States Parties shall themselves take measures or encourage sports organisations and anti-

doping organisations to adopt measures, including sanctions or penalties, aimed at athlete

support personnel who commit an anti-doping rule violation or other doping offence ...

26. Article 11 provides that Parties shall where appropriate:

26.1. provide funding to support a national testing program across all sports or assist sports organisations and anti-doping organisations in financing doping controls;

26.2. take steps to withhold financial support from athletes or athlete support personnel who have been suspended following an ADRV;

26.3. withhold financial or other sport related support from any sports organisation or anti-doping organisation not Code compliant.

27. Article 12 deals with implementing a testing regime, providing that Parties shall, where appropriate:

27.1. encourage and facilitate the implementation by sports organisations and anti-doping organisations of doping controls;

27.2. encourage and facilitate negotiation by sports organisations and anti-doping organisations of agreements permitting their members to be tested by duly authorised doping control teams from other countries;

27.3. undertake to assist sports organisations and anti-doping organisations to gain access to accredited doping control laboratories.


States Parties shall encourage cooperation between anti-doping organisations [such as

ASADA], public authorities and sports organisations within their jurisdiction and those

within the jurisdiction of other States Parties in order to achieve at the international level the

purpose of this Convention.

29. Article 14 provides an undertaking to support the World Anti-Doping Agency (WADA).

30. Article 19 deals with education and training programs, and Article 19(2)(b) provides that athletes and athlete support personnel should be provided with updated and accurate information on athletes’ rights and responsibilities in regard to anti-doping, including information about the Code and the anti-doping policies of the relevant sports and anti-doping organisations.


States Parties shall co-operate mutually and with the relevant organisations to share, where

appropriate, information, expertise and experience on effective anti-doping programs.

32. There is a similar undertaking by States Parties in Article 24 to encourage and promote anti-doping research in cooperation with sports and other relevant organisations.

The World Anti-Doping Code 2009 (the Code)

33. The Code was adopted by WADA and, in its current form, took effect on 1 January 2009.12 The purpose of the Code is said to be to:13

33.1. protect athletes’ right to participate in doping-free sport and thus promote health, fairness and equality for athletes worldwide; and

33.2. to ensure harmonised, coordinated and effective anti-doping programs at the international and national levels with regard to detection, deterrence and prevention of doping.

34. The Code is also said to be:14

the fundamental and universal document upon which the World Anti-Doping Program in sport

is based.

35. The Introduction says that:15

Anti-doping rules, like Competition rules, are sport rules governing the conditions under which

sport is played. Athletes or other Persons accept these rules as a condition of

participation and shall be bound by these rules.

36. Article 2 of the Code contains the ADRVs which are reflected in cl 2.01 of the NAD scheme.

37. Significantly, however, the Code is not confined to specification of the ADRVs and sanctions applicable thereto. It also deals with the management/governance of anti-doping issues. The Code also refers at pp 99-100 to:

12 The current version of the Code took effect on 1 January 2009. The Code first entered into force on 1 January 2004. The revisions were made by the WADA Board on 17 November 2007.

13 At page 11. 14 At page 11. 15 At page 17 (emphasis in bold added).

establish[ing] an environment that is strongly conducive to doping-free sport and [which] will

have a positive and long-term influence on the choices made by Athletes and other Persons.

…

Athlete Support Personnel should educate and counsel Athletes regarding anti-doping policies

and rules adopted pursuant to the Code.

…

18.3 Professional Codes of Conduct

All Signatories shall cooperate with each other and governments to encourage relevant

competent professional associations and institutions to develop and implement

appropriate Codes of Conduct, good practice and ethics related to sport practice

regarding anti-doping, as well as sanctions, which are consistent with the Code. (Emphasis

added)

38. Article 20.5 specifies various roles and responsibilities of National Anti-Doping Organisations (such as ASADA), one of which is to ‘cooperate with other relevant national organisations and agencies’ (such as the AFL). The role of WADA itself is described in Article 20.7.8 as:

To conduct Doping Controls as authorised by other Anti-Doping Organisations and to

cooperate with relevant national and international organisations and agencies, including but not limited to facilitating inquiries and investigations. (Emphasis added)

39. Article 21 then sets our ‘additional’ roles and responsibilities’ of athletes and other persons. The reference to ‘additional’ clearly contemplates that athletes and other persons have roles and responsibilities going beyond non-commission of ADRVs. It provides:

21.1 Roles and Responsibilities of Athletes

21.1.1 To be knowledgeable of and comply with all applicable anti-doping policies

and rules adopted pursuant to the Code.

…

21.1.3 To take responsibility, in the context of anti-doping, for what they ingest and use.

21.1.4 … to take responsibility to make sure that any medical treatment received

does not violate anti-doping policies and rules adopted pursuant to the Code.

21.2 Roles and Responsibilities of Athlete Support Personnel

21.2.1 To be knowledgeable of and comply with all anti-doping policies and rules adopted

pursuant to the Code and which are applicable to them or the Athletes whom they support.

21.2.3 To use their influence on Athlete values and behaviour to foster anti-doping

attitudes. (Emphasis added)

40. The Code clearly requires national sporting organisations such as the AFL to have anti-doping policies and rules directed to the promotion of anti-doping values, behaviours, and attitudes. The Code also contemplates very close cooperation between the AFL and ASADA, including but not limited to facilitating inquiries and investigations.

41. If one were to apply the provisions of the Code to resolve the issues in these proceedings, it would have to be regarded as lending clear support to the joint investigation and to the disclosure of information by ASADA to the AFL in order to facilitate enforcement of the AFL’s disciplinary standards relating to management/governance of anti-doping issues. This proposition invokes the following observations of French J (as he then was) in Cabal v United Mexican States (No 3) (2000) 186 ALR 188 at [127]:16

There is a general principle of the common law that legislation will be construed, so far as is

possible, in accordance with the provisions of international agreements to which it gives effect:

Queensland v Commonwealth (1989) 167 CLR 232 at 238–40; 86 ALR 519; Koowarta v

Bjelke-Petersen (1982) 153 CLR 168 at 204; 39 ALR 417; Yager v R (1977) 139 CLR 28 at

43–4; 13 ALR 247; Polites v Commonwealth (1945) 70 CLR 60 at 69.

Second Reading Speech for the ASADA Bill 2005

42. In the Second Reading Speech, Kevin Andrews MP, the then Minister for Employment and Workplace Relations and Minister Assisting the Prime Minister for the Public Service, relevantly stated that (emphasis added):17

In the event of serious allegations of doping infractions by athletes, Australia will have in place

an integrated system to respond vigorously from the outset – from collecting, preserving and

analysis of evidence to making recommendations on its findings and carrying a case to a

tribunal hearing if required.

43. The Minister’s reference to an ‘integrated’ system should be understood in light of the following statements:18

The National Anti-Doping Scheme will reflect the provisions of the two major international

instruments on anti-doping to which Australia is a party…

…

The scheme will set out the obligations for Australian sporting organisations in the following

areas:

- Promoting athlete compliance with the scheme;

- Referring violations of the scheme to ASADA;

- Assisting ASADA in the course of its investigations….

16 The Full Federal Court dismissed an appeal against the decision of French J: Cabal v United Mexican States (2001) 108 FCR 311.

17 Commonwealth, Parliamentary Debates, House of Representatives, 7 December 2005, 9 (Kevin Andrews). 18 Commonwealth, Parliamentary Debates, House of Representatives, 7 December 2005, 9 (Kevin Andrews).

The scheme will authorise ASADA to:

- Monitor the compliance of sports and sports administration bodies … with these

obligations…

….

This carries with it the requirements for sports to ensure that their athletes and support

personnel cooperate with ASADA officials in carrying out its testing, investigations and

presentations at hearings functions

Explanatory Memorandum to the Australian Sports Anti-Doping Authority Amendment Act 2009

44. It was the 2009 Amendment Act which transferred ASADA functions and powers to the CEO. The Explanatory Memorandum which accompanied the amending Bill stated (in the Outline):19

ASADA is the key implementation agency for Australia’s anti-doping program and supports the

Government in coordinating the harmonisation of anti-doping efforts with State and Territory

governments and national sporting associations.

Second Reading Speech for the 2009 Act

45. In the second reading speech, Kate Ellis MP, then Minister for Early Childhood Education, Childcare and Youth and Minister for Sport, relevantly stated:20

… the Bill also gives effect to incidental changes that are required to align the ASADA Act

more closely with the World Anti-Doping Code, which came into effect on 1 January 2009.

Australia is committed to the principles of the World Anti-Doping Code (the Code) through its

ratification of the UNESCO International Convention Against Doping in Sport (the Convention).

This includes the operation of policies and programs that seek to eliminate doping from

sport…

EM to the Australian Sports Anti-Doping Authority Amendment Regulations 2012 (No. 1)

46. The Explanatory Statement states at page 3:21

The World Anti-Doping Code provides the framework for harmonised anti-doping policies,

rules and regulations across the world. In ratifying the UNESCO International Convention

Against Doping in Sport, the Australian Government committed to implement anti-doping

arrangements consistent with the principles of the World Anti-Doping Code.

The International Anti-Doping Arrangement (IADA) 2011 – 2014

47. Clauses 1.03 and 1.03B of the NAD scheme make reference to this Arrangement. It is a ‘relevant international anti-doping instrument’ as defined in s 4 of the ASADA Act – noting that it is prescribed by the Regulations (see Schedule 2 thereof).

19 Explanatory Memorandum, Australian Sports Anti-Doping Authority Amendment Bill 2009, 1. 20 Commonwealth, Parliamentary Debates, House of Representatives, 16 September 2009, 9713 (Kate Ellis). 21 Explanatory Statement, Australian Sports Anti-Doping Authority Amendment Regulations 2012 (No 1), 3.

48. Clause 1.03(1) provides as follows:

The CEO is authorised to exercise powers under the NAD scheme in order to cooperate with

a request from a sporting administration body if the request is reasonably necessary to

enforce or give effect to the World Anti-Doping Code and other relevant international anti-

doping instruments.

49. Clause 1.03B (inserted in 2012)22 of the NAD scheme provides:

In exercising powers for the NAD scheme and making recommendations, the CEO …. Must

have regard to:

(a) the World Anti-Doping Code ….; and

(b) other relevant international anti-doping instruments.

50. The Arrangement includes the following statements:

Philosophy

This Arrangement is based on the conviction of the Participating Parties that international

cooperation in the field of anti-doping and high quality standards in anti-doping

programmes will contribute to ensuring an ethical and healthy sports environment which

provides for mutual trust and shared values where athletes can compete without the use of

prohibited doping substances or methods.

Principles

The participating Parties are dedicated to doping-free sport. They firmly believe that anti-

doping policies and programmes must be periodically reviewed and revised accordingly to

serve the sport community. The Participating Parties recognise the sport community as

a crucial ally in anti-doping work and thus develop policies and programmes in a cooperative manner with the sport community. (emphasis added)

Second Reading Speech for the ASADA Amendment Bill 2013

51. The Applicants rely heavily upon the Australian Sports Anti-Doping Authority Amendment Act 2013 (the 2013 Amendment Act)23, which made provision for the CEO to issue disclosure notices, and which displaced the privileges against (i) self-incrimination and (ii) self-exposure to a penalty in respect of production of ‘documents and things’ at coercive interviews - but preserved those privileges in respect of the giving of answers and information at compulsory interviews.

22 By the ASADA Amendment Regulation 2012 (No 1). It came into effect on 11 December 2012. 23 Allina Pty Ltd v Federal Commissioner of Taxation (1991) 99 ALR 295 at 303 (Lockhart, Burchett &

Gummow JJ) where it is said: “but if the words of the earlier statute are clear, little assistance may be gained from the later statute”.

52. The Applicants submit that the enactment of the 2013 Amendment Act reflects a legislative intention that ASADA should not be permitted to have access to answers and information compulsorily acquired from interviewees, including through the use of a sporting administration body’s coercive powers.24 In fact, the reverse is true.

53. In the Minister’s Second Reading Speech she stated:25

the recent Review of Cycling Australia conducted by the Hon James Wood AO QC has

demonstrated that there is still plenty of work to be done in the ongoing effort to address the

challenges of doping in sport.

This Bill I introduce today responds to the recommendations contained in Mr Wood’s Report

…

Intense media speculation around recent revelations of systemic doping in international

cycling have unfortunately highlighted that public confidence in sport can be easily

undermined by actions that bring into question the integrity of sport.

54. Significantly, the Minister then stated (emphasis added):26

I have also asked ASADA and the National Integrity in Sport Unit within the Office for Sport to

work with our national sporting organisations to amend their Codes of Conduct and/or anti-

doping policies so that all athletes and their support personnel are required to cooperate

with an ASADA investigation. National sporting organisations will be required to apply an

appropriately strong sanction (such as significant periods of ineligibility) for those who fail to

do so.

55. Thus, the Minister unambiguously recognised that it was an intended feature of the scheme that ASADA’s investigations could ‘leverage off’ contractual arrangements between sporting organisations and their participants requiring those participants, through the exercise of coercive powers by the sporting organisations, to provide information to ASADA. If there is any doubt whatsoever about this being an intended feature of the entire legislative scheme, that doubt is dispelled when one has regard to:

55.1. the hearings of the Rural and Regional Affairs and Transport Legislation Committee, which inquired into and reported on the Amendment Bill (the date of hearings being 1 March 2013); and

55.2. the content of the report of James Wood AO QC into Cycling Australia which the Minister referred to in her Second Reading speech as the genesis of the Bill for the 2013 Amendment Act.

56. Dealing first with the Senate Committee hearings held on 1 March 2013:

24 See, eg, the applicants’ submissions at paragraph 270. 25 Commonwealth, Parliamentary Debates, Senate, 6 February 2013, 316 (Kate Ellis). 26 Commonwealth, Parliamentary Debates, Senate, 6 February 2013, 317 (Kate Ellis).

56.1. Senator Brandis (the then Shadow Attorney-General) stated:

As all of the players and support personnel and club officials have contractual obligations,

and the sanction for not complying is disciplinary action under the code of the sport or

termination of their contract, why does ASADA need these powers to issue a disclosure

notice, to require the interview, to provide information, to provide substances, with no

privilege against self-incrimination? If your own sports codes are being enforced, then the

athletes and support personnel and officials at pain of being excluded from the sport are already under these obligations.27

… why do we need to impose additional liability on the players when under their existing

contracts they already have that obligation and the sanction that enforces compliance with the obligation is to lose their contract. 28

…

Looking at the Australian Olympic Committee agreement with athletes – given how

extensive and thorough the contractual obligations are on athletes – you do not need the

additional force of these amendments to police and enforce anti-doping rules, because

you already have them in your team agreement and they are very extensive and they carry very heavy sanctions. Your interests are fully protected by your team agreement.29

56.2. Matthew Finnis, Board Member, Australian Athletes’ Alliance and Chief Executive Officer AFL Players’ Association, told the Committee:30

The primary motivator would be the fact that it is a privilege to play the game and as part

of that the athletes have signed up to the contractual arrangement whereby they forego

certain liberties which we would ordinarily expect, and they do so because of the value in

curbing any threats to the integrity of the sport. But there needs to be proportionality, and

the athletes are in the best place to ensure proportionality through contractual

negotiations …

56.3. It is noteworthy that at the time of the Committee’s consideration of the amending Bill it excluded the privileges in respect of interview answers and information, but this aspect of the Bill was removed prior to its enactment. The tolerably clear inference to be drawn is that the legislature took the view that ASADA should have access to compulsorily acquired information, not through the exercise of its own powers, but pursuant to the coercive powers able to be exerted by sporting organisations under their contractual arrangements with sports’ participants.31

27 Rural and Regional Affairs and Transport Legislation Committee, Parliament of Australia, Canberra, 1 March 2013, 11 (George Brandis).

28 Ibid at 12. 29 Ibid at 28. 30 Ibid at 18 (Matthew Finnis). 31 The Supplementary EM for the 2013 Amendment Act acknowledged that amendments had occurred in

response to comments made by the various Senate Committees which reviewed the Bill after it was first introduced.

57. Any doubt about this is dispelled when one has regard to the report of Mr Wood AO QC.

57.1. In that report Justice Wood made recommendations for the revision and expansion of Cycling Australia’s Code of Conduct for members and for securing athletes’ cooperation with ASADA investigations.32

57.2. One such recommendation was that Cycling Australia establish a policy that would provide sanctions for an athlete, coach or support person who refused to cooperate with an ASADA investigation.33

57.3. These recommendations were made because the contractual arrangements which existed between Cycling Australia and cyclists at the time of Justice Wood’s inquiry did not oblige cyclists to disclose information against their interests to ASADA.34

57.4. Justice Wood specifically recommended that Cycling Australia should prepare a more comprehensive Code of Conduct. He recommended that the requirement for compliance with that Code should then be incorporated into contractual arrangements.35

57.5. Justice Wood then stated:

In completing this Review, it became apparent that an essential element of doping

detection is the ability of relevant authorities to investigate alleged incidents of doping

involving athletes, support personnel or team staff. In the Australian context, critical to

ASADA’s role is the cooperation of these groups with its investigation efforts. Elsewhere

in this Report I discussed the possible strengthening of the ASADA Act and other relevant

legislation in relation to investigations, but I consider it of the upmost importance that

Cycling Australia [CA] make provision in its policies to sanction those who fail to

cooperate with ASADA investigations.

…

I am aware that some sports have put in place arrangements to facilitate cooperation

between athletes, clubs and support personnel and ASADA in relation to investigations.

The National Rugby League (NRL) and Australian Football League (AFL), as part of their

anti-doping arrangements, have a requirement that certain classes of people, which are

defined by the respective policies, must cooperate with investigations associated with

doping. For example, the AFL’s anti-doping code requires each player, club, officer and

official to fully cooperate with any investigation and includes a sanction for a breach of

this requirement. CA should develop similar arrangements, appropriate to its

circumstances, to enable greater cooperation with ASADA investigations.

…

32 James Wood AO QC, Review of Cycling Australia – Final Report (Department of Regional Australia, Local Government, Arts and Sport, 14 January 2013), (iii).

33 Ibid at Recommendation 4.5.3, at page (viii). 34 Ibid at paragraph 3.64 at page 31. 35 Ibid at paragraph 4.29.

58. In light of these statements in the report of Justice Wood, the Minister’s statement in her Second Reading Speech quoted at paragraph 54 above should be regarded as a resounding endorsement of the following proposition: although ASADA is not authorised to exercise its own coercive powers to compel sports’ participants to provide answers at interviews, an important feature of the legislative scheme is that ASADA is able to rely on the exercise of coercive powers by sporting organisations. According to the Minister, that state of affairs should continue as a feature of the scheme, and more national sporting organisations should be required to amend their codes of conduct and anti-doping policies to oblige participants to cooperate with ASADA.

59. This legislative history explains the legislative emphasis upon the existence of anti-doping policies on the part of sporting administration bodies, going well beyond the mere stipulation of a requirement to avoid ADRVs. See, again, ss 15(1)(a)(ii), 15(1)(b), 15(2)(a), (b) and (c) of the ASADA Act; and cll 2.04(a)-(h), (j) and (n) of the NAD scheme.

E. Submissions concerning the first fundamental issue

60. Given the legislative provisions referred to above, when read in light of their history and extrinsic materials, the submission of the applicants to the effect that any kind of joint investigation between ASADA and a sporting administration body was prohibited should be given short shrift.

60.1. The ‘negative implication’ for which the applicants contend involves the introduction of a very dramatic gloss upon the plain language of paragraph 13(1)(f) of the ASADA Act and cl 3.27(2) of the NAD scheme.

60.2. It is the very nature of investigations that they must be fluid, dynamic and responsive to the exigencies and circumstances prevailing at any point in time. The legislature can be expected to have understood this. If the legislature had intended to prohibit joint investigations altogether, one would expect to see some express reference to it, if only as an antidote to the strong statements in the 1994 and 2005 Conventions in favour of cooperative arrangements between sporting organisations and anti-doping organisations.

60.3. The ASADA Act, Regulations and NAD scheme were clearly intended to constitute a robust response to the problem of doping in sports. The contention of the applicants would seriously work against achievement of the purposes of detecting, preventing and eliminating sports doping.36

61. The applicants’ further argument that the particular joint investigation carried out between the AFL and ASADA was invalid because it involved an improper, unauthorised, and extraneous purpose – reliance upon the AFL’s compulsory powers – is similarly weak. Again, the applicants’ argument depends upon discernment of a ‘negative implication’, which finds no textual support in any specific provision of the legislative scheme, or in its overall operation. Indeed, the negative implication for which the applicants contend is quite

36 Section 15AA of the Acts Interpretation Act 1901 provides that in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

contrary to international developments and agreements (including the 1994 and 2005 Conventions) which preceded the introduction of the ASADA Act. As noted above, international and domestic extrinsic materials indicate that the legislative scheme was predicated on ASADA being able to rely upon sporting administration bodies enforcing their contractual arrangements with sports’ participants.

62. In support of that argument the applicants seek to place an extraordinarily strained complexion upon what happened at the joint interviews. The applicants contend that interviewee answers were given to ASADA, but were not given to the AFL by the interviewees. That argument seeks to lay the foundation for an even more extraordinary proposition – namely, interviewee answers were, upon receipt by ASADA, the subject of a ‘simultaneous’ disclosure by ASADA to the AFL.37 With respect, those arguments are wholly unsustainable. The reality is that interviewees were directed by the AFL to answer questions in the presence of AFL and ASADA representatives, each of whom received the answers simultaneously. The relevant ‘disclosure’ of information was, in each case, by the interviewee (and, on occasions, their legal representative(s)).

63. In any event, the argument of the applicants is misconceived. It may readily be accepted that the ASADA Act does not authorise ASADA to compel interviewees to provide answers to it. However, that does not equate to, or establish, the proposition that the ASADA Act prohibits ASADA from obtaining access to answers from interviewees on other bases – whether voluntary or, as mostly happened here, as a consequence of the exertion by the AFL of its compulsory powers.

64. It is one thing to say that ASADA could not itself directly compel interviewees to provide answers to it. It is another thing altogether to say that ASADA was prohibited from being given, or obtaining access to, interview answers under all and any circumstances. Indeed, the logical extrapolation of the argument of the applicants is this: (i) prior to 1 August 2013 ASADA lacked the legal authority to directly compel anyone to provide ‘non-presence’ investigative information to it (i.e. other than samples for testing in connection with suspected ‘presence’ ADRVs); (ii) therefore, ASADA was not authorised to receive any such information, other than on a wholly voluntary basis.

65. The applicants’ argument really comes down to an assertion that ‘what cannot be done directly, cannot be done indirectly’. In Pacific Coal; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346, Gleeson CJ stated as follows in relation to that proposition:

It has often been pointed out that s 51(xxxv) does not empower the Parliament to legislate

directly to regulate conditions of employment. An attempt was made in argument to develop

that proposition by adding to it what may be described as “the principle that Parliament cannot

do indirectly what it cannot do directly”. Two points need to be made about that. First, it is one

thing to say that the nature of the power is such that it deals with instituting and maintaining a

system of conciliation and arbitration, and that it is only through such a system that conditions

of employment may be regulated under s 51(xxxv); it is another thing to find some negative

implication amounting to a prohibition against the Parliament enacting any law which has the

37 See the applicants’ submissions at paragraphs 288-295.

effect of altering conditions of employment. That there is no such negative implication, and no

such prohibition, must follow from the acceptance that, where Parliament can rely upon some

other power conferred by s 51, it can legislate in relation to conditions of employment. Such an

implication was rejected, for example, in Pidoto v Victoria. In the present case, an attempt was

made to rely, if necessary, upon the power conferred by s 51(xx). It is unnecessary to deal

with that attempt but if, in a given case, legislation was validly enacted pursuant to that power,

then it would not be affected by any negative implication or prohibition of the kind mentioned.

Secondly, there is no principle that Parliament can never do indirectly what it cannot do

directly. Whether or not Parliament can do something indirectly, which it cannot do

directly, may depend upon why it cannot do it directly. In law, as in life, there are many

examples of things that can be done indirectly, although not directly. The true principle

is that “it is not permissible to do indirectly what is prohibited directly”. If there were a

constitutional prohibition of the kind earlier considered, then it could not be

circumvented by an attempt to do directly that which is prohibited directly. There is,

however, no such prohibition.

66. These observations were quoted with approval by Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in the New South Wales v Commonwealth (2006) 229 CLR 1 (WorkChoices) at 131. Their Honours held that the observations of Gleeson CJ in Pacific Coal should be accepted and followed.

67. The reasoning of Gleeson CJ in Pacific Coal is fatal to this aspect of the applicants’ case.

67.1. When the question is posed ‘why is ASADA unable to directly compel answers to be given at interview’ the response must be ‘because ASADA is able to rely upon the exertion of compulsory powers by sporting administration bodies under contractual arrangements between them and athletes/support persons’.

67.2. Further, as noted by Gleeson CJ it is important to identify with some precision exactly what is said to be prohibited. An absence of power to directly compel the provision of particular information does not amount to a direct or indirect prohibition against all and any acquisition of the information by other means.

67.3. For instance, it has been held that a prohibition against compulsory acquisition of a sample of an accused person’s DNA, does not prevent police from placing the accused under surveillance until he or she discards a cigarette or the like from which a DNA profile can be extracted: see R v Kane [2004] NSWCCA 78; Martin v Medical Complaints Tribunal (2006) 15 Tas R 413 at [22].

67.4. Put simply, an absence of authority to compulsorily acquire information cannot be regarded as supporting an implied prohibition against the acquisition of the information by other means.

67.5. Were it otherwise, ASADA would be reduced to a wholly benign and ineffective regulator.

68. Finally, cl 1.03(2) of the NAD scheme expressly refers to the CEO requesting a sporting administration body ‘to provide, or obtain and provide’ information about an athlete or support person, and it expressly authorises the CEO to use such information for investigative purposes. The plain terms of cl 1.03(2) sit very uncomfortably with the

negative implication sought by the applicants. Indeed, the applicants’ argument requires the introduction of a dramatic exception to the scope of cl 1.03(2): namely, that it does not apply to any information obtained by a sporting administration body pursuant to the exercise of any compulsory powers available to it. The introduction of that exception, by way of so-called ‘implication’, is quite contrary to the reasoning in Taylor v The Owners – Strata Plan No 11564 (2014) 88 ALJR 473 at [38]-[39].

F. Submissions concerning the second and third fundamental issues

69. These two issues will be dealt with together. They each direct attention to whether ASADA is empowered to disclose information to a sporting administration body such as the AFL for the purpose of enforcing disciplinary standards in relation to anti-doping, not dependent upon proof of an actual ADRV.

70. The applicants contend that ASADA’s functions and powers cannot, as a matter of law, extend to investigating and reporting on compliance with disciplinary standards referable to anti-doping issues, save and except where any possible disciplinary action is based upon, and limited to, an allegation of an ADRV.

71. The short answer to the applicants’ argument is that it wholly ignores various provisions contained in cl 2.04:

71.1. Clause 2.04(a) requires a sporting administration body such as the AFL to have in place, maintain, and enforce anti-doping policies and practices that comply with (i) the mandatory provisions of the Code; and (ii) the NAD Scheme. It is notable that cl 2.04(a) requires sporting administration bodies to do more than simply state that athletes and support personnel ‘shall not commit ADRVs’. Rather, cl 2.04(a) speaks of ‘policies and practices’, the purpose of which is to facilitate compliance with the Code and the NAD Scheme.

71.2. Bearing in mind the provisions of Article 21 of the Code,38 it is clear that cl 2.04(a) comprehends anti-doping policies and practices which facilitate compliance by athletes and support personnel with the roles and responsibilities imposed upon them.

71.3. The roles and responsibilities imposed upon support personnel by article 21 include using ‘their influence on Athlete values and behaviour to foster anti-doping attitudes’.

72. The AFL chose to fulfil the requirements imposed by cl 2.04(a) by promulgating the AFL Anti-Doping Code (AFLADC) , with the following features:

72.1. The AFLADC contains a clear statement of ‘Objectives’ in cl 1 in the following terms:

The AFL subscribes to a philosophy and adopts a stance that:

38 See paragraph 39 above.

(a) ensures that the AFL Competition is conducted upon the basis of athletic prowess

and natural levels of fitness and development and not on any pharmacologically

enhanced performance;

(b) protects players from using substances which may cause acute or long term harm

to their bodies;

(c) educates the players to understand the dangers and consequences of the use of

performance enhancing substances; and

(d) sets an example for all participants in the sport of Australian Football by

condemning the use of performance enhancing substances.

72.2. The AFLADC is linked to the AFL Rules and Regulations in the strongest of possible terms - by cl 2.4 which operates to render the AFLADC part of the AFL Rules and Regulations, including AFL Player Rules (see the definition of ‘AFL Rules and Regulations’ in cl 1.1 of the AFL’s Player Rules). Accordingly, if a Club or official engaged in behaviour which seriously undermined achievement of the objectives of the AFLADC, and/or failed to notify the AFL of ‘all facts and circumstances where … there is or may be an Anti Doping Rule Violation or other breach of this Code’,39 the Club or official would be exposed to disciplinary action of a kind which would not depend upon proof of an ADRV.

72.3. The incorporation of the AFLADC into the AFL Rules and Regulations was the means chosen by the AFL to ensure that ‘at all times it has the authority to enforce its anti-doping policy’: see cl 2.04(c) of the NAD scheme.

72.4. For instance, the linking of the AFLADC to the AFL Player Rules had the effect of requiring Clubs, players and support personnel to refrain from engaging in conduct, relating to anti-doping issues, which would be likely to bring the game into disrepute: see cl 1.6.1 of the AFL Player Rules. Again, disciplinary action of this kind would ‘relate to anti-doping’ (within the meaning of s 15(1)(a)(ii) of the ASADA Act), but would not depend upon proof of an ADRV.

72.5. As with the NAD scheme, the AFLADC distinguishes between the commission of ADRVs on the one hand and ‘breaches [of] the provisions of this Code’ on the other hand: see, for example, cll 3.2, 8.1(d), 12.2.

72.6. Clause 3.3 of the AFLADC stipulates that ‘a Club will be deemed to have breached this Code should any of its officers or officials breach this Code and may be sanctioned in addition to the officers or officials concerned’.

72.7. Given the interlinking between the AFLADC and the AFL Player Rules, and the non-confinement of the AFLADC to ADRVs, the kinds of disciplinary action contemplated

39 See clause 12.2 of the AFLADC.

by the AFL’s Rules and Regulations extended well beyond disciplinary action dependent upon proof of an ADRV.40

72.8. Clause 4.2 of the AFLADC stated, in part, ‘[the] AFL has a responsibility to encourage and promote competition free from prohibited substances and methods and to prevent doping practices in sport’. Clearly, when the AFL took disciplinary action against Essendon and its officials in 2013, it was doing so, at least in part, pursuant to this acknowledged responsibility.

72.9. Pursuant to cl 4.9 of the AFLADC, the AFL agreed to provide reports to ASADA ‘on the AFL’s conduct of any anti-doping functions under this Code’. This clause was not limited to provision of information with respect to possible ADRVs.

73. It is clear, therefore, that the AFL’s ‘anti-doping policies and practices’ within the meaning of cl 2.04(a) required Essendon and its officials to refrain from engaging in acts referable to anti-doping issues which would be likely to bring the sport into disrepute.

74. Accordingly, the taking of disciplinary action by the AFL against a Club or official with respect to anti-doping issues, albeit action of a kind not dependent upon proof of an ADRV, cannot possibly be regarded as something falling outside the rubric of the ASADA Act, Regulations or NAD scheme.

75. The AFLADC was approved, as required, by the CEO of ASADA: see cl 2.04(b) of the NAD scheme.

76. It is against the backdrop of these provisions that cl 2.04(d) of the NAD scheme falls for consideration. That clause provides that a sporting administration body must:

immediately inform the CEO of an alleged breach of its anti-doping policy and cooperate with

any investigation into the matter.

77. Pausing there, the obligation imposed by cl 2.04(d) was not confined to, or the same as, an obligation to inform the CEO of a possible ADRV. This is made clear by the reference in cl 2.04(d) to a sporting administration body’s ‘anti-doping policy’ - which can be contrasted with the obligation imposed on a sporting administration body under cl 2.04(j) to ‘refer all instances of possible ADRVs to the CEO for investigation and cooperate with any investigation, as required’.

78. This necessarily means that the obligations imposed by cl 2.04(e) (to provide to the CEO appropriate details or reports related to investigations) and cl 2.04(f) (to provide the CEO with relevant information in a timely manner) were obligations which did not depend in any way upon suspicion (let alone occurrence) of an ADRV.

79. Clause 2.04(h) of the NAD scheme required the AFL to:

comply with, implement and enforce its anti-doping policy to the satisfaction of the CEO.

40 See cl 7.7(h) and (i); cl 8.1(d); cl 12.2; cl 12.6.

And cl 2.04(n) required the AFL to:

ensure that its members and staff cooperate with the CEO.

80. The obligations on the AFL to keep ASADA informed, and cooperate with ASADA, relate to both (i) investigations into alleged breaches of the AFLADP (cl 2.04(d)); and (ii) investigations into possible ADRVs (see cl 2.04(j)). It seems clear, therefore, that the obligation imposed on the AFL by cl 2.04 – to ensure that its members and staff cooperated with the CEO – similarly relate to both types of investigation.

81. The upshot is that the NAD scheme expressly contemplates, indeed requires, a very close level of cooperation between bodies such as the AFL and ASADA in connection with enforcement of anti-doping policies and practices going well beyond the existence or otherwise of ADRVs.

82. And the CEO was not intended to be a passive partner in any cooperative arrangements. Pursuant to s 21(1)(b), the CEO had ‘such functions as are conferred on the CEO by the NAD scheme’. Pursuant to cl 2.03(2)(a) of the NAD scheme, the CEO was authorised ‘to monitor the compliance by sporting administration bodies with the sporting administration body rules’; and, pursuant to cl 2.03(2)(c), the CEO was authorised to publish reports about the extent of compliance. Section 21(1)(o) conferred upon the CEO the function of doing ‘anything incidental to or conducive to the performance of’ that compliance function. Section 22 of the ASADA Act also conferred upon the CEO the power to do ‘all things necessary or convenient to be done for or in connection with the performance of’ that compliance function.

83. Given the interplay of these various provisions, there can be little doubt that ASADA had a very large measure of discretion as to the nature and extent of its engagement with the AFL in relation to both (i) allegedly deficient governance/management practices and behaviours at Essendon; and (ii) alleged ADRVs. It could have chosen to conduct two investigations, each separate from the other, and without any close engagement with the AFL in either investigation. But it was not obliged to proceed that way. It was entitled to work very closely with the AFL by way of a joint investigation into both sets of issues (ADRVs and deficient governance/management).

84. ASADA was also authorised under the legislative scheme to disclose information to the AFL for the purpose of enabling the AFL to consider, and decide, whether to take disciplinary action to enforce its anti-doping policy.

85. The immediate source of authority for disclosure of information by ASADA to the AFL was cl 4.21(2)(a) of the NAD scheme, when read in light of s 13(1)(g) of the ASADA Act. Under cl 4.21 the CEO/ASADA was authorised as follows:

85.1. In the period up to and including 31 July 2013, to disclose information obtained during and ADRV investigation for the purposes of, or in connection with, such investigation.

85.2. In the period as and from 1 August 2013, to disclose information, documents or things obtained in relation to the administration of the NAD Scheme (including information obtained during investigations of possible violations of the anti-doping rules) for the purposes of, or in connection with, that administration.

86. Accordingly, if the CEO/ASADA considered that governance/management issues at Essendon were connected with its investigation into possible ADRV at Essendon, the information could be disclosed to the AFL under cl 4.21.

87. In this regard, it must be remembered that ‘from the get go’ every interested stakeholder/person understood that the emergence of suspected ADRVs at Essendon may have been connected to deficient management/governance practices on the part of various support personnel. This was one of the principal concerns of both Essendon41 (particularly Mr Evans) and the AFL.

88. Then, in the course of ASADA’s investigation, considerable evidence emerged which, on any fair view, suggested a strong link between deficient governance/management practices and the possibility (or actuality) of ADRVs.

88.1. A cursory perusal of the Interim Report reinforces a strong factual connection between deficient governance/management practices on the part of Essendon support personnel and the possibility of ADRVs.

88.2. It is no exaggeration to say that references to these deficiencies are strewn throughout the Interim Report: see, by way of example, multiple references to the following:

– the emergence of a ‘pushing the boundaries’ culture;

– failures to undertake rudimentary background checks of support personnel who were engaged;

– liberal administration of ‘amino acids’ by way of large numbers of injections by a support person;

– commencement of private blood testing of players without the knowledge of Club doctors, using an external NSW based testing facility and a ‘fly in’ doctor rather than the Club doctor;

– protests raised by the Club doctor gaining no, or insufficient, traction with support personnel;

– provision of insufficient information to players about the nature of the ‘supplements’ administered to them;

– administration of Hexarelin, a S2 category peptide on the WADA prohibited list, by one support person to another support person;

– the absence of any suitable records management to enable recording of supplements given to players;

– failure to apply the usual financial systems when ordering and paying for supplements;

– engagement in practices that exposed players to potential risks to their health and safety;

41 It was Essendon who commissioned the report of Ziggy Switkowski for this purpose.

– seriously inadequate supervision of support personnel implementing the supplements program.

88.3. In the words of Dr Ziggy Switkowski in his report of April 2013:42 [See tab D-41 in vol 1 of Exhibit A12.]

… 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.

89. In light of the above, it is surprising in the extreme that the applicants should advance an argument to this Court that ASADA was not authorised to release relevant information to the AFL because the release of that information was not ‘for the purposes of, or in connection with’ its investigation into ADRVs.

90. Of course, if ASADA had released investigative material for the purpose of enabling the AFL to take disciplinary action against Essendon and its officials with respect to matters wholly unconnected with possible ADRVs (such as poor uniform maintenance or unruly post-match conduct), then a breach of cl 4.21 would have occurred. But all and any disclosures of information by ASADA to the AFL were authorised by the wide terms of cl 4.21.

Amplitude of the expression ‘for the purposes of, or in connection with’ as it appears in s 13(1)(g)

91. The ordinary meaning of this expression is wide. True it is that the width of the expression ‘in connection with’ can vary according to the statutory context. It is also true that the expression is capable of describing a spectrum of relationships, ranging from the direct and immediate to the tenuous and remote.43 However, an analysis of cases dealing with the meaning of the expression shows that judges have rarely construed it as requiring a ‘direct and immediate’ link.

92. The following observations of the Full Federal Court in Collector of Customs v Pressure Tankers (1993) 43 FCR 280 at 288 are apposite:

42 See Ziggy Switkowski, ‘Essendon Football Club Report’ (Independent Review, Essendon Football Club, 29 April 2013), p2: document 41 in Section D of the Respondent’s tender bundle

43 Collector of Customs v Pressure Tankers (1993) 115 ALR 1

As Sheppard and Burchett JJ observed in Australian National Railways Commission v

Collector of Customs (SA) at FCR 378, the meaning of the word ‘connection’ is wide and

imprecise, one of its common meanings being ‘relation between things one of which is bound

up with, or involved in, another’: Shorter Oxford English Dictionary.

93. In Our Town FN Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465, Wilcox J took a similar approach. His Honour stated at 479:

The words “in connection with” have a wide connotation, requiring merely a relation between

one thing and another. They do not necessarily require a causal relationship between two

things: see Commissioner for Superannuation v Millar (1985) 8 FCR 153 at 154, 160, 163.

94. In that same case at 480, Wilcox J cited the following statement with apparent approval:

One of the very generally accepted meanings of “connection” is “relation between things one

of which is bound up with or involved in another”; or, again, “having to do with”. The words

include matters occurring prior to as well as subsequent to or consequent upon so long as

they are related to the principal thing. The phrase “having to do with” perhaps gives as good a

suggestion of the meaning as could be had.

95. In Doomadgee and Anor v Deputy State Coroner Clements and Ors (2006) 2 Qd R 352, Muir J stated as follows (footnotes omitted):

[30] The expressions “connected with” and “relates to” are of wide import and connote a

connection or relationship between one thing and another. The closeness of the connection or

relationship is to be “ascertained by reference to the nature and purpose of the provision in

question and the context in which it appears”. The expressions are “capable of including

matters occurring prior to as well as subsequent to or consequent upon” as long as a relevant

relationship exists.

[31] … The purpose of the other two paragraphs of the subsection is to empower the Coroner

to address the topics specified in them with a view to exposing some failing, deficiency or

wrong and/or suggesting measures which may be implemented for the public benefit. Section

46(1), being remedial in nature, should be construed liberally.

96. In Western Australia v Ward (2002) 213 CLR 1 Gleeson CJ, Gaudron, Gummow and Hayne JJ considered that the expression ‘in connection with’, as used in the definition of the word ‘works’, was ‘very broad’.44 Callinan J reasoned as follows to similar effect at [807]:45

… The phrase “in connection with” also has a wide import, although its exact ambit will

depend on the statutory context. It signifies a relationship of some sort, as one judge

(Macfarlane J) has noted:

44 See at [277]. 45 See also QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 per

Madgwick J at [109].

One of the very generally accepted meanings of “connection” is “relation between things

one of which is bound up with or involved in another”; or again “having to do with”.

Here, “in connection with” signifies that there must be a relationship between the use of the

land and “works” (in its extended statutory meaning). There is nothing in the statutory context

to suggest that the phrase should have any more narrow meaning. Accordingly, so long as it

can be fairly said that the use of the land has “to do with” the works, the relevant land will fall

within the definition.

97. As these observations make clear, the existence of a causal connection (particularly a strong one) between one thing and another will nearly always mean that a ‘connection’ exists between them. So much accords with ordinary common sense.

98. Here, the poor governance/management practices at Essendon were clearly regarded as having caused or contributed to the emergence of the ‘suspicions and concerns’ about possible ADRVs. The poor governance/management practices were certainly regarded as being ‘bound up with’ or ‘to do with’ possible ADRVs. Therefore, disclosure of investigative information to enable the AFL to consider and, if thought appropriate, take disciplinary action against Essendon and its officials was unquestionably connected with ASADA’s investigation.

99. In conducting investigations into possible ADRVs, ASADA was not required to wholly suspend performance of its other functions and wholly abandon all and any regard to them. In particular, ASADA was entitled to regard the ADRV investigative material contained in the Interim Report as strongly connected with non-compliance by Essendon and its officials with the AFLADC. Accordingly, ASADA was entitled to disclose all of the investigative material canvassed in the Interim Report to the AFL for the purpose of enabling it to enforce proper standards of behaviour at Essendon. That was a purpose connected to the investigation - factually and legally (as to the latter see ss 15(1)(b) and (d), 15(2)(a) and cl 2.03(2)).

100. In context, the expression ‘in connection with’ is clearly intended to extend and go beyond the expression ‘for the purposes of’. That fact alone militates very strongly against a narrow or confined construction of ‘in connection with’ as it appears in cl 4.21.46 Similarly, achievement of the purposes of the legislative scheme supports an expansive approach.

101. Such an approach is also supported by the Explanatory Statement which accompanied the promulgation of the ASADA Regulations in 2006. That Explanatory Statement includes the following:

Clause 95 – Disclosing information to sporting administration bodies – non-entry information

Paragraph 13(1)(g) of the Act requires the NAD scheme to authorise certain disclosures.

Therefore, clause 95 authorises and sets out when ASADA can disclose information that is not

information arising out of an entry on the register but where the information relates to or

appears to relate to any person in connection with the anti-doping rules. Such information

46 The words “in connection with” appear in s 13(1)(g) (and, by reference, in cl 4.21(2)) and in cl 4.21(1)(b).

includes any possible breaches of those rules and ASADA investigations of such

matters.

Sub-clause 95(2) provides that ASADA [may] disclose the relevant information to sporting

administration bodies, the Australian Federal Police (AFP) and the Australian Customs

Service (Customs). It is important to be able to disclose this type of information to the AFP

and/or Customs for example in the event of trafficking or possession of certain

substances. (Emphasis added)

102. This passage from the Explanatory Statement contemplates the possibility of the AFP or Customs using the disclosed information for their own investigative purposes.

103. This is hardly surprising. Were it otherwise, the words ‘in connection with’ would add nothing to the expression ‘for the purposes of” in s 13(1)(g) (and, by reference, cl 4.21(2)). That is, cl 4.21 expressly permits disclosures of information in connection with purposes other than for the ‘purposes of’ ASADA’s investigation. Clause 4.21 permits information to be disclosed for purposes connected with ASADA’s investigation.

104. Thus, if an ASADA investigation revealed that prohibited substances were being marketed contrary to State/Territory fair trading laws, ASADA could disclose information for the purpose of fair trading officers taking enforcement action even if such action might not, in and of itself, advance any specific aspect of ASADA’s investigation. Similarly, if 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 AFP or Customs even if it did not advance or facilitate any particular aspect of an extant ASADA investigation.

105. Here, the connection was much closer. AFL enforcement of its prescribed standards of behaviour with respect to anti-doping issues was something very closely connected to ASADA’s investigation, and cl 4.21 operated to authorise disclosure.

106. This approach to the meaning of cl 4.21 harmonises its operation with that of s 68 of the ASADA Act, as required by the principles enunciated in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355.

Interaction between section 68 of the ASADA Act and clause 4.21

107. Section 68 of the ASADA Act permits ASADA to disclose ‘protected customs information’ (as defined in s 67(2)) to sporting administration bodies for the anti-doping purposes of those bodies if certain conditions are met. The conditions are stringent. They reflect an obvious recognition on the part of the legislature that disclosure of ‘protected customs information’ should be the subject of special constraints going beyond those otherwise applicable to disclosures of ASADA investigative material to sporting administration bodies.

108. Section 68(1)(a) of the ASADA Act provides:

68 Disclosing protected customs information to sporting administration bodies

The CEO may disclose protected customs information

(1) The functions of the CEO include disclosing protected customs information to a sporting

administration body if:

(a) the CEO is satisfied that the information should be disclosed to the body for permitted

anti-doping purposes of the body.

109. Although styled as a ‘function’, s 68(1)(a) operates as a conferral of authority upon the CEO to disclose protected customs information.

110. Significantly, s 68(7) then provides as follows in relation to the expression ‘permitted anti-doping purposes’ as it appears in s 68(1)(a):

(7) For the purposes of this Act, each of the following purposes is a permitted anti-doping

purpose of a sporting administration body:

(a) investigating possible breaches of a current policy of the body about drugs and/or doping

methods;

(b) determining whether to take action under such a policy of the body;

(c) determining what action to take under such a policy of the body;

(d) taking action under such a policy of the body;

(e) taking, or participating in, any proceedings relating to action that has been taken under

such a policy of the body.

111. The terms of s 68(7) make two things clear: first, the expression ‘permitted anti-doping purpose’ refers to a purpose ‘of a sporting administration body’ rather than a purpose of ASADA; secondly, the definition of ‘permitted anti-doping purpose’ is not limited to the taking of disciplinary action which depends upon proof of an ARDV. Sections 68(1)(a) and 68(7) clearly contemplate a disclosure of sensitive customs-sourced information to sporting administration bodies for the purpose of enabling them to enforce their anti-doping policies (subject, of course, to satisfaction of the conditions enumerated in s 68 itself).

112. If the applicants’ submissions concerning the construction of cl 4.21 are correct, then irreconcilable conflict and absurdity results. It would mean that the CEO/ASADA could not disclose sensitive customs-sourced information to the AFL under cl 4.21, but could have disclosed that information to the AFL under s 68 (subject to satisfaction of the enumerated conditions). The conflict and absurdity does not arise if it is accepted, as contended by the respondent, that facilitation of disciplinary standards referable to anti-doping is a purpose connected with investigations of ASADA into possible ADRVs.

Interaction between section 72 of the ASADA Act and clause 4.21 of the NAD scheme

113. Another anomaly arises on the argument advanced by the applicants. On the applicants’ argument, the alleged limitations imposed by cl 4.21 could have been overcome by the simple expedient of the AFL and ASADA entering into a services contract within the meaning of s 21(1)(k)(iii) relating to sports doping and safety matters. Such a service contract could have entailed ASADA agreeing to carry out an investigation into

governance/management deficiencies at Essendon and reporting to the AFL in relation to possible disciplinary action which might be taken, dependent upon proof of an ADRV or otherwise. Section 72(2)(b) of the ASADA Act, dealing with disclosure of ‘contract services personal information’ would unquestionably have permitted ASADA to disclose any information it acquired in the course of its investigation (noting the width of the expression ‘sports doping and safety matters’ as it appears in s 21(1)(k) of the ASADA Act).

Interaction between section 71(2)(b) of the ASADA Act and clause 4.21 of the NAD scheme

114. As noted above, it is clear that ASADA’s disclosure of information for the purpose of enabling the AFL to consider taking the subject disciplinary action was a disclosure for the purposes of the NAD Scheme.

114.1. Clause 2.04 of the NAD Scheme required the AFL to enforce its anti-doping policies and practices.

114.2. Clause 2.04(d) contemplates the possibility of an investigation into an alleged breach of the AFL’s anti-doping policy, and cl 2.03(2) authorised the CEO to monitor the AFL’s compliance with its anti-doping policies and practices.

114.3. Therefore, disclosure of information by ASADA referable to those various matters comes within the rubric of ‘disclosure for the purpose of the NAD Scheme’ within the meaning of s 71(2)(b). Disclosures coming within s 71(2) are ‘authorised’ by s 71 – see s 71(3).

115. On the approach contended for by the applicants, a conflict necessarily arises between the operation of s 71(2)(b) and cl 4.21 of the NAD scheme. However, on the approach contended for by the respondent, the CEO/ASADA was authorised to disclose investigative material under both cl 4.21 and s 71(2)(b). This is because disclosure of investigative material for the purpose of enabling the AFL to take disciplinary action, albeit not dependent upon proof of ARDVs, falls within the terms of s 71(2)(b) and cl 4.21. In the case of the latter, this is because such disclosure is for a purpose ‘connected with’ an ARDV investigation.

G. Submissions on the Fourth Fundamental Issue: multiple purposes

116. At paragraph 258 of their submissions the applicants assert that, in relation to improper purposes, the question is simply ‘whether the powers have been exercised for a purpose other than the purpose to which the powers were conferred. If so, the decision should be set aside’. In footnote 207 the applicants rely upon the observations of Latham CJ in Brownells Limited v the Ironmongers’ Wages Board (1950) 81 CLR 108 at 120. The passage cited in footnote 207 does not support the argument advanced by the applicants in paragraph 258 (see further below).

117. Moreover, in paragraph 264 the applicants assert that no inquiry need be made into the respondent’s purposes in carrying out a joint investigation because ‘they did not extend to ASADA joining forces with an investigative partner in order to benefit from the partner’s use of its compulsive powers’. The applicants then state as follows at paragraph 272:

Finally, it is not necessary for the Applicants to establish that, “but for” the collateral or

extraneous purpose(s), the Respondent would not have exercised any power to enter into a

joint investigation with the AFL. Rather, the relevant enquiry is whether the collateral

purpose was “harmless”, “insubstantial” or “insignificant” in the sense that, in its absence,

there would have been no possibility of a different outcome.…

118. With respect, these submissions of the applicants are legally unsound.

119. The correct position was summarised by a Full Court of this Court in Flanagan v Australian Federal Police (1996) 60 FCR 149 at 203 in the following terms:

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.

120. Justice Merkel put the position thus in Kazar v Duss (1998) 88 FCR 218 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.

121. These statements of principle were cited with approval by Hely J in Williams v Keelty (2001) 111 FCR 175 at [234].

122. Whilst a contestable issue might arise as to whether resort to the AFL’s compulsory powers was the actuating reason for the joint investigation (without which no joint investigation would have been conducted), it is not open on the evidence for the Court to find that the provision of investigative material by ASADA to the AFL for disciplinary purposes (not dependent upon proof of an ADRV) was a purpose without which the joint investigation would not have been conducted. Indeed, it cannot seriously be doubted but that the actuating purpose of the joint investigation was to enable ASADA to place itself in the best possible position to understand what had happened at Essendon. Accordingly, even if the applicants were to succeed in relation to the second and third fundamental issues, that would not enable the Court to declare the (i) joint investigation; or (ii) disclosures of information by ASADA to the AFL, invalid for improper purposes.

H. Additional issues which may arise (subject to resolution of the four fundamental issues canvassed above)

Reliance upon section 71 of the ASADA Act

123. Even if the Court were to find, against the respondent’s submissions, that cl 4.21 of the NAD scheme did not authorise disclosure of investigative material to the AFL for the purpose of the AFL enforcing its anti-doping code, the respondent relies upon s 71 of the ASADA Act as an alternative source of power.

124. In Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1, French CJ, Hayne, Kiefel and Bell JJ cited (at [34]) the following passage from the judgment of Heydon J in Eastman v Director of Public Prosecutions ACT (2003) 214 CLR 318 at 362:

If the maker of an administrative decision purposes to act under one head of power which

does not exist, but there is another head of power available and all conditions antecedent to

its valid exercise have been satisfied, the decision is valid despite purported reliance on the

unavailable head of power.

125. Section 71(1) of the ASADA Act makes it a criminal offence for an entrusted person who obtains NAD scheme personal information to disclose the information to ‘someone else’. Section 71(2) then provides:

Each of the following is an exception to the prohibition in subsection (1):

(a) a disclosure for the purposes of this Act;

(b) a disclosure for the purposes of the NAD scheme.

126. If s 71 ended there, it might have operated simply to de-criminalise disclosures for the purposes of the Act and the NAD scheme – although there is considerable authority in favour of the proposition that an exception to a secrecy provision operates as a positive power to disclose: see Johns v Australian Securities Commission (1993) 178 CLR 408; AWB Ltd v Australian Securities and Investments Commission [2008] FCA 1877 and Pedrana v Pedrana (No 2) [2012] FamCA 348. However, the position is put beyond doubt by s 71(3) which provides:47

If a disclosure of NAD scheme personal information is covered by subsection (2), the

disclosure is authorised by this section.

127. Accordingly, in relation to any disclosures of information to the AFL which occurred before 1 August 2013, if the Court considers such disclosures were not ‘for the purposes of, or in connection with’ ASADA’s investigation into possible ADRVs, the disclosures were nevertheless ‘for the purposes of the NAD scheme’ within the meaning of s 71(2)(b).

127.1. As noted above, the provisions of cl 2.03(2) and 2.04 of the NAD scheme specifically contemplate matters such as monitoring compliance by sporting administration bodies with their rules; enforcement by a sporting administration body of its anti-doping policies and practices; exertion of authority by sporting administration bodies with respect to enforcement of their anti-doping policies; investigations by ASADA into alleged breaches of the anti-doping policies of sporting administration bodies; provision of information by sporting administration bodies in relation to alleged or suspected breached of their anti-doping policies (whether or not such suspected breaches involve, or depend upon, an actual

47 Section 72 of the ASADA Act has an equivalent operation in respect of disclosures of ‘contract services personal information’.

ADRV); enforcement by sporting administration bodies of their anti-doping policies to the satisfaction of the CEO; and close cooperation between sporting administration bodies and the CEO in relation to enforcement of anti-doping policies (noting, again, that enforcement of such policies is not limited to taking action to prove the commission of an ADRV).

127.2. Indeed, as noted above, if a sporting administration body fails to take appropriate action to enforce standards of conduct with respect to anti-doping issues (such as the disciplinary action taken against Essendon and its officials in 2013), the NAD scheme contemplates notification of such failure by the CEO to the ASC (see s 15(1)(c) and s 21(1)(c)), with the possible consequence of withdrawal of funding from the sporting administration body by the ASC.

127.3. All of these provisions reinforce the legislature’s abiding concern to ensure compliance with the ‘anti-doping rules’ set out in cl 2.01 through the existence, maintenance, and enforcement of anti-doping policies and practices by sporting administration bodies (separately dealt with in cl 2.04).

Even if ASADA obtained information unlawfully, no permanent injunctive relief should be granted in

respect of future use of such information

128. Evidence which is unlawfully/improperly obtained does not thereby become non-evidence or material to which courts and tribunals should pay no regard. Even in the most stringent of circumstances, the admission of evidence in a criminal proceeding, there is a discretion to admit unlawfully obtained evidence.48 For this reason courts have refused to require the return of seized information, even when positively satisfied that the seizure was unlawful. This is because courts accept that such unlawfully acquired information may still be properly admitted in later criminal proceedings, and an order for its return would frustrate the exercise of a judicial discretion in those downstream proceedings (see, for example, Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 405). Here, the impugned evidence in question will/may fall for consideration by:

128.1. the CEO in deciding whether a possible non-presence ADRV warrants action under cl 4.07A);

128.2. the Anti-Doping Rule Violation Panel (ADRVP) (in deciding whether to make an entry on the register under cl 4.09;

128.3. by the Administrative Appeals Tribunal (AAT) in carrying out any review under cl 4.12 (noting that the right to seek AAT review is unqualified); and

128.4. a sporting tribunal adjudicating any alleged ADRVP brought before it, at first instance or on appeal.

129. All of these processes involve the exercise of administrative/executive power of a kind which does not attract the application of the rules of evidence – such that the discretion to

48 See s 138(1) of the Evidence Act 1995.

admit unlawfully acquired evidence is enlarged beyond that which arises in curial proceedings.

130. The granting of a permanent injunction preventing downstream decision-makers from having any regard to otherwise probative but unlawfully obtained evidence would involve, in effect, a pre-emption and usurpation of the decision-making processes conferred upon those decision-makers. In this regard, the following observations of Evans J in Martin v Medical Complaints Tribunal (2006) 15 Tas R 413 are apposite:

[14] … The common law rules of evidence are a product of the jury system and were

developed because of the perceived need to prevent particular classes of evidence being

submitted to the jury; Wigmore on Evidence, 3rd Ed, 1940 4b. There is no uncertainty about

the circumstances in which the common law rules of evidence apply to a statutory tribunal, it

depends upon the terms of the legislation governing the particular tribunal. Wigmore (supra) at

31 cautioned that “any attempt to apply strictly the jury-trial rules of evidence to an

administrative tribunal acting without a jury is an historical anomaly, predestined to probable

futility and failure”. It is perhaps with admonishments of this nature in mind that legislation

which governs a statutory tribunal commonly includes a provision to the effect that the tribunal

is not bound by the rules of evidence but may inform itself on any matter in any way it

considers appropriate. But a tribunal is not bound by the rules of evidence means that it may

have regard to evidence that is logically probative regardless of whether it is legally admissible

under the rules of evidence; R v The War Pensions Entitlement Appeal Tribunal; ex parte Bott

[1933] HCA 30; (1933) 50 CLR 228 and Pochi v Minister for Immigration and Ethnic Affairs

[1979] AATA 64; (1979) 36 FLR 482, Brennan J at 493. It is perfectly consistent with concepts

of procedural fairness to apply a provision that a tribunal is not bound by the rules of evidence

so as to admit evidence that may not be legally admissible but is logically probative … This

does not mean that the rules of evidence are to be ignored as being of no account; Bott

(supra) at 256 and Pochi (supra) at 492. That a rule of evidence would apply to exclude

otherwise logically probative evidence may be a guide as to its reliability and weight.

131. These observations were specifically directed to unlawfully obtained evidence.

132. A Full Court of this Court recently considered the significance of the Administrative Appeals Tribunal not being bound by the rules of evidence (albeit in a context not involving unlawfully obtained evidence) in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93. In that case, the Full Court was dealing with an appeal ground to the effect that the Tribunal had failed, as required, to apply the Briginshaw v Briginshaw49 principle and the Browne v Dunn50 principle. In a joint judgment Flick and Perry JJ emphasised that the significance of the non-application of rules of evidence to administrative decision-makers ought not be marginalised. Their Honours stated at [92]:

Gleeson CJ and McHugh J have said that such provisions [excluding the rules of evidence]

‘are intended to be facultative, not restrictive’ and that their ‘purpose is to free tribunals, at

least to some degree, from constraints otherwise applicable to courts of law, and regarded as

49 (1938) 60 CLR 336. 50 (1893) 6 R 67 HL.

inappropriate to tribunals’: Minister for Immigration and Multicultural Affairs v Eshetu [1999]

HCA 21 at [49], (1999) 197 CLR 611 at 628.

133. Justices Flick and Perry then cited with approval the following observations of the first President of the Administrative Appeals Tribunal, Brennan J (as his Honour then was), in Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492-493 (emphasis added):

… That does not mean, of course, that the rules of evidence which have been excluded

expressly by statute creep back through a domestic procedural rule. Facts can be fairly

found without demanding adherence to the rules of evidence …

…

The majority judgments in Bott’s case show that the Tribunal is entitled to have regard to

evidence which is logically probative whether it is legally admissible or not …

134. Justices Flick and Perry then made observations as to the approach which an appeal court should take in relation to appeal grounds based upon the Tribunal’s non-application of the rules of evidence (directly or indirectly). Their Honours stated (emphasis added):

[115] Moreover, the submission fails to also recognise the fact that the procedure of the

Tribunal is within its own discretion.

[116] What procedure the Tribunal decides to follow in any particular case, and whether

the Tribunal decides to either apply or inform itself by reference to the common laws of

evidence, is a matter which has been left by the legislature to the Tribunal itself to

determine. The manner in which the tribunal proceeds cannot, with respect, be

predetermined by any generally expressed “principle of law” …

[117] To endorse the general “principle of law”, it is respectfully concluded, would only serve

to confuse the fundamental division of functions between the Tribunal as a body vested with

administrative power and the function of this court when entertaining an “appeal” from a

decision of the Tribunal. This division is respected in the statutory limitation upon the subject

matter of an “appeal” from a Tribunal decision to a question of law: Administrative Appeals

Tribunal Act s 44(1).

135. The applicants here seek an even more dramatic ‘predetermination’ of a legal outcome (that the evidence in question not be used ever by anyone), in circumstances where (i) that outcome is not ordained by any principle of law, (ii) that outcome is not ordained by any rule of evidence, and (iii) the legislature has clearly entrusted responsibility to administrative decision-makers to decide for themselves what material should be taken into account (and what weight should be attached to that material).

136. It is significant in this regard that even if those administrative decision-makers were to proceed, analogically, by reference to the common law rules of evidence applicable to unlawfully obtained evidence, there is much to be said in favour of them deciding, in the exercise of their discretion, to take any unlawfully obtained evidence into account. This is because, under the common law rules of evidence, a significant factor to be weighed in the balance is whether the unlawfully obtained evidence was the product of deliberate

unlawfulness. As noted by King CJ in Mazinski v Bakka (1978) 20 SASR 350 at 361 (emphasis added):51

For the reasons given by Wells J I agree with the result that the analysis of the blood sample

[alleged to have been unlawfully obtained] was properly admitted by the learned trial judge. It

was argued before us that the judge had a discretion similar to that which existed in criminal

cases to exclude the evidence on the ground that its admission would be unfair to the party

against whom it was intended, and that the proper exercise of that discretion would have

resulted in the exclusion of the evidence. Even if a judge in a civil trial has such a

discretion, it is difficult to see how its exercise could have resulted in the exclusion of the evidence.

…

It is therefore unnecessary to decide whether a judge in a civil case has a discretion to reject

admissible evidence, particularly evidence which has been unlawfully obtained, and the extent

of any such discretion. There has been a marked development of the law in recent years as to

the basis and extent of the discretion in criminal cases … perhaps a parallel development is to

be looked for in relation to civil cases. Some of the considerations upon which the discretion is

exercised in criminal cases have no counter part on the civil side, but the public interest

referred to in Bunning v Cross in protecting the citizen’s immunity from arbitrary and unlawful

infringement of his rights is applicable to both. The courts cannot appear to condone the

obtaining of evidence by deliberately illegal conduct which constitutes a serious infringement

of legal rights. Whether by adopting the concept of abuse of process or by some other means,

it seems to me that the courts must seriously consider assuming a discretionary power in civil

cases to reject evidence which a party has obtained by a serious and deliberate

infringement of the legal rights of another. (Emphasis added)

137. In light of the foregoing, even if ASADA obtained information unlawfully in the course of the joint investigation (which is denied), that is a factor which the law recognises can and should 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.

Any unlawfully obtained information would be subject to reacquisition by ASADA

138. Even if ASADA obtained information unlawfully in the course of the joint investigation (which is denied), 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 anti-doping code.

139. The AFL unquestionably had the power, under its contractual arrangements with Essendon (and support personnel and players engaged by Essendon), to compel provision of the answers at interviews with Essendon officials and players. That information lawfully exists

51 Cited with approval by Lander J in Southern Equities Corporation Ltd (in liq) v Bond (2001) 78 SASR 554.

in the hands of the AFL. The AFL is subject to a legal obligation to provide that information to the CEO/ASADA. The grant of any permanent stay would have the effect of seriously confounding the statutory scheme and lawful arrangements between the AFL, Essendon, support personnel and players.

Each applicant entered into contractual arrangements with the AFL authorising the very matters

now complained of

140. Essendon, its support personnel, and its players all agreed to be bound by the AFL’s anti-doping code. They also agreed that the anti-doping code was to form part of the AFL’s Rules and Regulations – including the disciplinary provisions relied upon by the AFL in taking disciplinary action against Essendon and its officials in 2013.

141. Essendon, its officials, and players agreed to the information sharing arrangements set out in cl 4 of the AFLADC. They also agreed to the ‘joint investigation’ provisions contained in cl 12.6 and 12.7 of the AFLADC. They also agreed to be bound by cl 20.1 of the AFLADC 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.

142. By signing player registration forms the players acknowledged that the AFL Rules (including the AFLADC) ‘are necessary and reasonable for the purpose of protecting and promoting the game of Australian football’. The registration forms signed by Essendon officials 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)

143. Accordingly, each of the applicants and the players must be taken to have understood that the AFL and ASADA might conduct a joint investigation and share information in the very manner which occurred here. They voluntarily entered into contractual arrangements which, according to their plain terms, countenanced the very things which they now seek to impugn.

ASADA could lawfully re-acquire all of the exact same information by the issue of disclosure

notices under Division 3.4B of the NAD scheme

144. As a general principle, courts will not grant relief where so to do would be inutile.52

145. As noted above, the information which the applicants seek to enjoin in the hands of ASADA also exists in the hands of the AFL (in the case of the Deloitte material and interview transcripts), Essendon (in respect of the Deloitte material) and Essendon officials and players (in respect of their interview transcripts). All of that material would be amenable to compulsory production to ASADA pursuant to disclosure notices issued under Division 3.4B of the NAD scheme.

146. Scenarios such as the present are not unknown to the law. A close analogy exists in relation to material obtained unlawfully by police or other public officials pursuant to defective warrants or statutory notices.

147. For instance, in Feeman v Bateson (unreported, Supreme Court of Victoria, 20 November 1994), Beach J dealt with an interlocutory application to enjoin information acquired by police pursuant to an allegedly unlawful warrant. His Honour was not persuaded that the warrant was unlawful. His Honour then stated:

Even if I had been satisfied that it was seriously arguable that search warrants or some of

them were invalid in the exercise of my discretion I would not have granted the injunctive relief

sought.

The reality of the situation is that immediately following the delivery of a judgment to

that effect the police could obtain search warrants and reseize the documents presently in the custody of this Court and the Magistrate’s Court. (emphasis added)

148. Beach J dismissed the interlocutory application before him, whereupon the plaintiff filed a notice of appeal to the Full Court of the Victorian Supreme Court against the order of Beach J. The plaintiff again sought interlocutory relief pending disposition of his appeal. The plaintiff’s application for interlocutory relief came before the Full Court on 1 December

52 See, for example, in the context of the Constitutional writs, SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 per Gleeson CJ, Gummow, Callinan, Heydon & Crennan JJ at [29].

1994. A subsequent judgment of Byrne J (unreported, Supreme Court of Victoria, 12/13 December 1994), records what then occurred:

The [Full] Court, in the course of argument, raised the matter mentioned by Beach J in the

passage from his judgment set out above. Counsel for the respondents sought and obtained

instructions that a fresh warrant would therefore be issued. The application was adjourned to

6 December.

[His Honour noted that on 5 December 1994 one of the defendants issued a fresh warrant to

reseize the same material]

The application before the Full Court came on for hearing on the following morning. There is

some contest as to what was stated before the [Full] Court. What is clear is that an order was

made dismissing Dr and Mrs Freeman’s application for interlocutory relief and their appeal

against the order of Beach J on 15 November … The plaintiff’s version is that of his solicitor,

Allan Harvey Shnider, in his affidavit sworn 8 December 1994:

On the adjourned application coming on for hearing on 6 December 1994, senior counsel

for the respondents to that application announced to the Court that a fresh warrant had

issued and had been executed and that the respondents no longer held or purported to

hold pursuant to the warrants the subject of proceeding No No 8356 of 1994 the

documents and other things seized under those warrants but now held those documents

and things pursuant to the fresh warrant issued on 5 December 1994.

The version of the first named defendant is given by his solicitor, Phillip Grant Dodgson, in his

affidavit sworn on 12 December 1994:

Senior counsel for the respondents announced that a fresh warrant had been issued and

executed in accordance with the discussion between the [Full] [C]ourt and the parties on

1 December 1994. I deny the allegation in para 14 of the Shnider affidavit that senior

counsel for the respondents announced that the respondents no longer held or purported

to hold pursuant to the warrants the subject of proceeding No 8536 of 1994 the

documents and other things seized under those warrants. That assertion was made by

senior counsel for the appellants in the course of stating to the court that in the

circumstances there was no longer any substantive issue in the appeal, that it had

therefore become “academic” and that it should be dismissed …

It is not necessary that I resolve this difference.

…

I return to the facts of the present case … Indeed, it was conceded that if the items were

handed to Dr Freeman on 5 December following the order of the Full Court, it would be

possible immediately to effect the lawful seizure from him pursuant to the December warrant.

149. Significantly, Byrne J dismissed the plaintiff’s application to have the warrant issued on 5 December 1994 set aside as an abuse of process. His Honour stated ‘In short, I am entirely unable to see, among the plaintiff’s contentions, a serious issue to be tried’.

150. It is apparent therefore that Beach J, the Full Court of the Victorian Supreme Court, and Byrne J in the Freeman v Bateson/Prowse proceedings all took the view that (i) information unlawfully obtained can be re-acquired; (ii) the re-acquisition of such information pursuant to the issue of a fresh compulsory notice is not abusive of any process; and (iii) the fact that the unlawfully acquired information could be lawfully re-acquired is a proper (indeed strong) basis for the refusal of relief in respect of the original acquisition of information.

151. A similar approach was taken by Steytler J in Western Australian Police Union of Workers v Anti-Corruption Commission [1998] WASC 226. In that case the defendants obtained investigative material obtained pursuant to various statutory notices. The plaintiffs alleged that the statutory notices were unlawful and sought orders restraining the investigators from utilising information produced in response to them on an interlocutory basis. In the course of dismissing that application, Steytler J stated:

I am prepared to assume, for the purposes of these applications, that the matters raised by

way of the originating summons are arguable and that the March notice is arguably unlawful

with the consequence, if it is unlawful, that the search warrants issued pursuant to that notice

are likewise unlawful.

However, that is not enough to justify the grant of the injunction sought.

…

… While Mr Tsaknis may prove to be correct in his submission that the defects pointed to by

him, if they be defects, are such as to invalidate the whole of the notice, the point remains

that there is, on the face of it, nothing to prevent the first defendant from formulating a

new notice which is more specific in its terms and which is lawful and within the

powers given under the Anti-Corruption Commission Act. (emphasis added)

152. The same approach was also taken by Buchanan J in Gheko Holdings v Chief Executive Medicare (No 2) [2013] FCA 293. That case concerned alleged defects in a warrant issued under the Human Services (Medicare) Act 1973 in connection with evidence as to the commission of offences and civil contraventions of Part IIBA of the Health Insurance Act 1973. Gheko Holdings initially sought an injunction preventing inspection or use of material seized under the allegedly unlawful warrant. Jagot J dismissed that application at first instance, whereupon Gheko Holdings appealed and the matter came before Buchanan J In dismissing that appeal Buchanan J stated:

[13] …The applicant’s protest is, however, that it is entitled to be protected against the use of

an invalid search warrant in the investigation being conducted by the second respondent. The

applicant’s central contention is that the terms of the search warrant were impermissibly wide.

At the heart of the argument for an interlocutory injunction lies the premise that the applicant

will be prejudiced if the seized material is inspected and the appeal is successful, and also

that the appeal will be rendered nugatory if inspection occurs. If the applicant’s appeal is

unsuccessful, of course, no complaint may be maintained. It is against the possibility that the

appeal might succeed that the allegation of prejudice must be examined.

…

[25] … The applicant suggested that if its appeal was upheld it might nevertheless be met with

the evidence that had been unlawfully obtained, but there are at least two reasons (apart from

my views about the weak prospects of success on the appeal) why this argument does not

advance the applicant’s position very far.

[26] First, if the appeal succeeds the applicant would retain any relevant right to object to use

of the seized material in any proceedings commenced against it, if in fact such proceedings

were commenced …

[27] Secondly, I can think of no reason, and none was able to be suggested, why any

identified drafting defect in the terms of the first warrant could not be remedied so that the same material could be legitimately seized in any event. (emphasis added)

153. The same approach was also taken in the following cases:

153.1. See Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393, wherein investigating officers had seized material under warrants which were fundamentally defective. They obtained fresh warrants, then returned and reseized material under those warrants. The new warrants were held to be valid.

153.2. See the Full Court of the ACT Supreme Court in Director of Public Prosecutions for the ACT v The Honourable Acting Justice Brian Martin [2014] ACTSC 104. In that case the Full Court held that the establishment of an executive Inquiry into the trial and conviction of Mr Eastman was infected by jurisdictional error. The Full Court refused, in its discretion, to set aside the Inquiry, and stated as follows in support of that conclusion:

It is also true that, if this Court were to make the orders the Director seeks, it would be

open to the Executive to order an inquiry under Part 20 of the Crimes Act. …

Conceivably, any new board could also make use of the material acquired to date …

154. The upshot is that the Court ought not, by the grant of a permanent injunction, protect the applicants from the lawful operation of the NAD scheme in the future, according to its terms.

Other discretionary factors against the granting of relief

155. The respondent relies upon the facts and matters in Section I below as militating strongly against the grant of any discretionary relief (including permanent injunction) to the applicants.

I. Other facts and matters as to why there should be no discretionary relief to Essendon or Mr Hird

Overview

156. The respondent submits that the evidence will show the following. Essendon and Hird were the proponents and instigators for the ASADA/AFL ‘joint investigation’. By their conduct, the applicants facilitated and actively co-operated with the ASADA/AFL investigation. There has been no objection by Essendon or Mr Hird to the joint investigation (but rather much

encouragement and support by them to the investigation by ASADA). Essendon and Hird made a considered decision to fully support and co-operate with ASADA’s investigation and they repeatedly made public statements and assurances to this effect.

Essendon and Hird were the proponents and instigators for the ASADA/AFL ‘joint investigation’

157. Essendon was welcoming of, and fully supported, ASADA undertaking an investigation into its 2012 supplements program.

54 Accordingly Essendon’s Chairman sought the AFL and ASADA to conduct the very investigation which Essendon and Hird now seek to impugn.

158. It was Essendon (through its then CEO, Ian Robson) who proactively contacted the CEO of ASADA to request ASADA’s assistance by an investigation. This was on 5 February 2013 and Ms Andruska’s contemporaneous notes record that Mr Robson said that Essendon ‘wish to conduct [a] full and complete investigation’.55 These notes also indicate that Essendon wanted to say that the club had ‘spoken with ASADA to express concern’ and question ‘if [there was a] role for ASADA’ in investigating those concerns.56 The Applicants chose not call Mr Robson as a witness. However the Respondent has tendered Mr Robson’s own handwritten notes of this conversation which have been discovered by Essendon and they note that Mr Robson was informed that ASADA “will commence the investigation immediately”: See Exhibit A12, Section A, tab A-1. Ms Andruska’s evidence of her conversation with Mr Robson on 5 February 2014 in paragraph 14 of her affidavit should be fully accepted. Ms Andruska’s evidence includes that Mr Robson said that Evans and Hird were aware that he (Robson) was calling her: paragraph 14 of Ms Andruska’s affidavit, Exhibit A8.

159. No doubt Mr Robson contacted the CEO of ASADA with the knowledge of Essendon’s Chairman (David Evans) and its coach (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).57 There were 3 persons present at the Essendon Press Conference; Mr Evans, Mr Robson and Mr Hird. Mr Evans made the following statements:

53 See page 8 of Evans’ transcript (which itself is Annexure AW-4 to Walker’s Affidavit: This is Exhibit A9 (or Annexure 1 to the respondent’s Notice to Admit dated 25 July 2014: see tab G-6 in vol 2 of Exhibit A12)).

54 See page 37 of Evans’ transcript (which itself is Annexure AW-4 to Walker’s Affidavit: This is Exhibit A9 (or Annexure 1 to the respondent’s Notice to Admit dated 25 July 2014: see tab G-6 in vol 2 of Exhibit A12)).

55 Annexure AA-4 to Andruska’s affidavit; see Exhibit A8. also Document 4 in Section I of the respondent’s tender bundle.

56 Ibid. 57 Annexure AA-5 to Andruska’s affidavit (emphasis in bold added); see Exhibit A8. also Document 5 in

Section I of the respondent’s tender bundle. See also Annexure CM-1 (p5) to McDermott’s affidavit.

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 of 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.

We offered the full co-operation of everyone at the club and 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.

160. Mr Evans was not speaking for himself. He uses the plural “We”. The statements by Mr Evans were made for and on behalf of each of the individuals “sitting at the table” with him, including Mr Hird, as representatives of the Essendon Football Club. 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 given by the club and each of Mr Evans, Mr Robson and Mr Hird.58 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. Thus, Mr Hird acquiesced in, and adopted, the request for an investigation by the AFL and ASADA enunciated by Mr Evans. A video and full transcript of this press conference which was played in Court on 11 August 2014 is Exhibit A2.

58 As to why such statements by Essendon are also statements for and on behalf of Mr Hird, see paragraph 182 below.

161. Mr Hird was not mute at the Essendon Press Conference. In response to the following questions: ‘Then why this press conference? And why approach the AFL? Why come out to the public?’, Mr Hird said:59

As a football club, as a Chairman, a CEO and a coach, we want a full bill of – a clean bill of health for our football club. If there have been goings-on within our football club that are not

right, we want to know. It’s my belief though that we’ve done everything right, and our players have done everything right as well.

Mr Hird also later said when asked questions about supplements used:

I think the investigation will go through and that will come to light. …

As I said, the investigation will go on and we’ll provide that information in due course. …

We certainly don’t want to be sitting here talking about this. We want to get this investigation started, we want to get it done, and we want to come out with a clean bill of health and we’ll move on with the footy season.

162A.As to Mr Hird’s knowledge on 5 February 2013 immediately prior to the Essendon Press Conference, see

See also Hird’s transcript of interview at pages 104-105 (Confidential Annexure AW-6, Exhibit A9).

162. The next day (6 February 2013), Mr Robson again spoke with the CEO of ASADA. Ms Andruska’s contemporaneous notes record that Mr Robson said that ‘every player involved last year will be interviewed’ and that they ‘need to be absolutely truthful’.60 Such could only be regarded as acknowledgments that Essendon’s players would be interviewed pursuant to the AFL’s compulsory powers and their obligations were to be completely truthful and forthcoming. That is how Ms Andruska understood what Mr Robson said to her: paragraph 21 of Ms Andruska’s affidavit. The Applicants did not call Mr Robson as a witness. Ms Andruska’s evidence of her conversation with Mr Robson on 6 February 2014 in paragraph 22 of her affidavit should be fully accepted: Ms Andruska’s affidavit, Exhibit A8.

163. There was a meeting on or about 9 February 2013 of high level representatives of ASADA (including Ms Andruska), Essendon and the AFL. Mr Robson’s own handwritten notes record the following:61

DE [Evans] introduced and backgrounded events of last week and why we are here. Open the doors → let the investigation go where it goes.

59 Annexure CM-4 and Exhibit CM-1 to McDermott’s affidavit, see Exhibit A11. 60 Annexure AA-6 to Andruska’s affidavit; see Exhibit A12. also Document 6 in Section I of the respondent’s

tender bundle. 61 Document 1 in Section A of the Respondent’s tender bundle (Confidential EFC): EFC.005.000007. Mr

Robson’s notes appear to be dated 8 February 2013. (Essendon agreed to orders on 12 August 2014 that this document is no longer confidential).

This private assurance by Essendon to ASADA and the AFL jointly echoed the public assurance to the general public by Mr Evans at the Essendon Press Conference on 5 February 2013.62

Support of and co-operation with the joint investigation by Essendon and Hird

164. Throughout 2013, Essendon and Mr Hird facilitated and actively co-operated with the investigation by ASADA and the AFL.

165. Approximately a week after contacting both the AFL and ASADA seeking their assistance and an investigation, Essendon invited ASADA (together with representatives of the AFL) to speak to its players as a group about the investigation. On 13 February 2013, Mr Evans and Mr Robson jointly emailed Paul Simonsson63 and, after referring to an earlier meeting, stated:64

... we discussed the idea of inviting you to present to our players as a group to outline the ASADA investigation and the process involved from this point including the likelihood of a significant number of individual interviews.

In the continued spirit of co-operation between Essendon FC and ASADA we think this would be both a positive and productive exercise.

Representatives of ASADA and the AFL did attend a meeting of the players to brief them in response to this invitation on 18 and 20 February 2013.65

166. This was not the only occasion when Essendon invited the AFL and ASADA to attend its premises. On 9 March 2013, Essendon conducted a meeting with the AFL and ASADA at the Club’s new training facility in order to conduct a site inspection and to look at drug testing procedures.66 There was also a second briefing of the players on the progress of the ASADA/AFL investigation with ASADA representatives on 6 May 2013 at Essendon’s premises.67 This followed an invitation on 2 May 2013 by Mr Robson by email to Mr Simonsson in these terms:68

Further to your conversation with David Evans this morning we would be delighted to have you visit the Club next Monday to provide an update to the plating [sic – playing] group on the

ASADA/AFL Investigation.

)62 See the final paragraph from the Essendon Press Conference, extracted in paragraph 159 above. 63 Paul Simonsson was the ASADA Director of Intelligence and Investigations. 64 Document 1 in Section D of the Respondent’s tender bundle: ASA.001.0492-0493. This is tab D-1 in vol 1

of Exhibit A12. 65 The handout given to the players entitled ‘Australian Sports Anti-Doping Authority investigation into

activities at Essendon Football Club’ is exhibit 23 to Campbell’s affidavit sworn 2 July 2014. .

66 Document 6 in Section A of the Respondent’s tender bundle (Confidential EFC): EFC.001.028047. This is tab A-6 in vol 1 of Exhibit A12. (Essendon agreed to orders on 12 August 2014 that this document is no longer confidential: order made 12 August 2014.)

67 Document 7 in Section A of the Respondent’s tender bundle (Confidential EFC): EFC.001.021439. This is tab A-7 in vol 1 of Exhibit A12. (Essendon agreed to orders on 12 August 2014 that this document is no longer confidential: orders made 12 August 2014.)

68 Document 8 in Section D of the Respondent’s tender bundle: ASA.0003.3724.

ASADA was next invited to a briefing with the parents of the players.69 None of these visits to Essendon were coercive. Rather, Essendon was taking the initiative and making voluntary requests to ASADA and the AFL to visit it as part of its full co-operation with the joint investigation.

167. When the question of interviews arose in the early days of the investigation, it appears that Mr Hird was keen for his interview to come on quickly.70 Essendon also proactively engaged with the AFL and ASADA regarding the arrangements for the interviews. On 28 February 2013, Mr Robson emailed Mr Clothier about the ‘batting order’ for the interviews and stated:71

As discussed, whilst I am both mindful and respectful of the integrity of the investigation

process as it determines the priority of interviewees, I also remain keen to work with you and

your colleagues at ASADA to collaborate and ensure that we get through the significant

number of interviews to be conducted in a timely manner.

In a similar vein, Mr Robson emailed Mr Clothier on 15 March 2013:72

. . . I am [sic] remain keen to work with you and the ASADA Investigation team to ensure a

smooth and efficient process in locking in all the remaining interviews with players and staff.

...

168. Essendon’s assistance with progressing the joint investigation extended to contacting persons who worked at the club in 2012 but were now employed elsewhere to inform such persons of Essendon’s co-operative approach to the investigation. For example, on 26 February 2013 Mr Robson emailed an individual who was now in a support position at a different AFL club, noting it was ‘safe to assume’ that the individual will be ‘interviewed by the ASADA/AFL Investigation team’. Mr Robson passed on the contact details for Mr Simonsson of ASADA and solicited co-operation by stating:73

As you are aware the Club is currently working with both the AFL and ASADA as they conduct

an investigation into activities at the Club, and specifically within the Football Program during

the 2012 season. [This is tab A-4 in vol 1 of Exhibit A12.]

169. The position of Mr Hird is indistinguishable from that of Essendon.74 Prior to his interview, Mr Hird’s solicitors wrote to ASADA and the AFL on 15 April 2013 as follows:75

69 Document 9 in Section D of the Respondent’s tender bundle: ASA.0003.1001. However, Mr Simonsson of ASADA did not attend this event. This is tab D-7 in vol 1 of Exhibit A12.

70 See also Mr Robson’s email to Mr Simonsson dated 20 February 2013 – Document 3 in Section A of the Respondent’s tender bundle (Confidential EFC): EFC.001.021046_001. See also Transcript of Hird’s cross examination at pages 93 and 99.

71 Document 3 in Section A of the Respondent’s tender bundle (Confidential EFC): EFC.001.021046. This is tab A-3 in vol 1 of Exhibit A12.

72 Document 3 in Section A of the Respondent’s tender bundle (Confidential EFC): EFC.001.021046. 73 Document 5 in Section A of the Respondent’s tender bundle (Confidential EFC): EFC.001.019188-019190. 74 The Respondent contests the assertion to the contrary in the Applicants’ submissions in paragraph 28. 75 Document 1 in Section B of the Respondent’s tender bundle.

Consistent with his desire to assist and fully co-operate with the ongoing investigations, and

notwithstanding the issue of confidentiality discussed below, our client will answer all

questions put to him during the interview. [This is tab B-1 in vol 1 of Exhibit A12.]

Shortly after his interview, Mr Hird’s solicitors continued to give strong assurances about Mr Hird’s co-operation.76 Mr Hird promised publicly that he would not impede the investigation in any way; he made the following statement on 16 April 2013:77

Today I attended an interview with [ASADA] and the AFL Integrity Officers.

At the interview I fully cooperated and truthfully answered every question that was put to me

by the investigators.

I will not do anything to impede the ASADA and AFL investigation and will continue to

cooperate fully. …

170. Mr Hird (through his solicitor) continued the mantra of full co-operation. As late as 6 June 2013, his solicitors wrote by letter:78

In the interests of transparency and consistent with our client’s continued willingness to fully

cooperate with the AFL and ASADA, our client has accepted that Deloitte has taken a broad

view of relevance or potential relevance when reviewing the communications [on his mobile

phone].

171. Statements such as these were no doubt made on Mr Hird’s express instructions. There are also Mr Hird’s own words in a private communication to Mr Evans on 11 May 2013.79 Mr Hird wrote to the club’s then Chairman:

Dear David

My position, as you know, has always been to fully co-operate and assist the ASADA and AFL

in its investigation and the important work it is doing. …

This letter is Exhibit A3. It is also found at tab A-8 in vol 1 of Exhibit A12. (This redacted

version is agreed by Essendon to no longer be confidential: orders made on 12 August 2014.)

76 For example, see the letter from Ashurst to Mr Clothier dated 18 April 2013, being Document 2 in Section B of the Respondent’s tender bundle which includes: [This is tab B-2 in vol 1 of Exhibit A12.]

‘During the interview, we reiterated that we would co-operate …’ ‘In light of the above, and our client’s clear and demonstrated willingness to co-operate with the

investigation …’ ‘Nevertheless our client will continue to co-operate with the investigation. …’

See also Ashurst’s letter dated 23 April 2013 to Mr Clothier, being Document 3 in Section B of the Respondent’s tender bundle which includes: [This is tab B-3 in vol 1 of Exhibit A12.]

‘Nevertheless, in the meantime our client had continued to co-operate fully with the investigation.’ ‘Our client remains willing to co-operate with the AFL in its investigation, and his conduct throughout the

investigation to this point has demonstrated.’ 77 Annexure CM-1 (p15) to McDermott’s affidavit: see Exhibit A11. 78 Document 4 in Section B of the Respondent’s tender bundle. [This is tab B-4 in vol 1 of Exhibit A12.] 79 Document 8 in Section A of the Respondent’s tender bundle (Confidential EFC): EFC.001.021570-

021571_001. [This is tab A-8 in vol 1 of Exhibit A12.]

No objections; praise for the investigation by Essendon and Mr Hird

172. Instead of objections or complaints, there was generally strong endorsement of ASADA’s investigation. The time for Essendon and Mr Hird to make the legal points they now seek to make was over 18 months ago. As at 20 February 2013, Essendon and Mr Hird both knew (as a result of the interviews conducted with Essendon officials on 15 February 201380) that the player interviews were going to be conducted (i) jointly by ASADA and the AFL and (ii) pursuant to the AFL’s compulsory powers.

173. In fact, the day after the first player briefing by ASADA and the AFL (21 February 2013), Mr Evans spoke to the CEO of ASADA; Ms Andruska’s contemporaneous notes record he gave her positive feedback about Mr Simonsson (‘absolutely outstanding’, ‘really first class’).81 Ms Andruska’s contemporaneous notes also record that Mr Evans said to her that you ‘have my word’.82 Mr Evans was promising within his actual authority as the most senior person at Essendon that his club would co-operate with and not obstruct the investigation. The Applicants choose not call Mr Evans as a witness. Ms Andruska’s evidence of her conversation with Mr Evans on 21 February 2014 in paragraph 31 of her affidavit should be fully accepted.

174. Not only was there a lack of substantive complaints by Essendon about ASADA’s investigation83, there was glowing endorsement of it. On 22 April 2013, Mr Evans spoke with Ms Andruska. Ms Andruska’s notes record that Evans said to her that he was:84

v[ery] impressed with [the] way that ASADA [had] conducted [the] investigation.

175. In a meeting on 4 June 2013 with (inter alios) Ms Andruska and Mr McLachlan, Mr Evans said he was:85

More than impressed with investigation staff.

176. It is to be noted that each of the 45 current or former players and all but 6 of the support staff were legally represented during the course of each of the joint interviews by ASADA and the AFL. No player or support staff refused to answer any question or made any claim of privilege against self-incrimination or privilege against self-exposure to a pecuniary penalty in respect of any question sought to be put by either an ASADA or AFL investigator. Essendon’s lawyers as at 6 August 2013 wrote to ASADA stating that the players were

80 Both Mr Robson and Mr Evans were each interviewed by ASADA and the AFL on 15 February 2013: see confidential Annexures AW-3 and AW-4 to Walker’s affidavit. See Exhibit A9.

81 Annexure AA-8 to Andruska’s affidavit: see Exhibit A8; see also Document 8 in Section I of the respondent’s tender bundle.

82 Annexure AA-8 to Andruska’s affidavit: see Exhibit A8; see also document 8 in Section I of the respondent’s tender bundle.

83 Ms Andruska’s notes record one ad hoc complaint about a tweet of an investigator that was raised once by Mr Evans with her: Annexure AA-8 to Andruska’s affidavit; see Exhibit A8..also document 8 in Section I of the respondent’s tender bundle.

84 Annexure AA-10 to Andruska’s affidavit: see Exhibit A8; see also document 10 in Section I of the respondent’s tender bundle.

85 85 Annexure AA-11 to Andruska’s affidavit: see Exhibit A8; see also document 11 in Section I of the respondent’s tender bundle.

“actively encouraged by ASADA, the AFL and the Club to fully cooperate with the investigation and to answer all questions put to them” (emphasis added): See tab D-49 in vol 1 of Exhibit A12.]

177. There was also no claim of privilege (or other legal objection pressed) by Mr Hird at his interview on 16 April 2013. Mr Hird was legally represented at the interview by Senior Counsel and a solicitor.86

Note: An unredacted extract of the following is

given in paragraph 3 of Mr Hird’s second affidavit of 30 July 2014 and Annexure JAH-10 to that affidavit.

86 In addition to Mr Nolan SC and Mr Amendola, junior counsel also attended in the capacity of a “support person” for Mr Hird.

87 See Mr Hird’s ASADA/AFL interview: Confidential Annexure AW-6 to Walker’s affidavit; transcript p2: see Exhibit A9.

88 See Mr Hird’s ASADA/AFL interview: Confidential Annexure AW-6 to Walker’s affidavit; transcript p3: see Exhibit A9.

179. By this exchange, Mr Hird did not reserve his rights at the interview.89 On the contrary, having flagged a possible legal issue, Mr Hird and his legal representatives chose to take no action at that time and allowed the interview to proceed, thus acquiescing in that process. All the evidence shows the position to be that Mr Hird, having requested as part of the management of Essendon that the AFL and ASADA conduct a joint investigation, directly himself and/or through his legal representatives (including during his interview):

179.1. did not claim any privilege or right against self-incrimination and/or penalty and raised no objection to the presence of ASADA investigators or the role played by ASADA or the provision of information to ASADA;

179.2. cooperated with the investigation throughout;

179.3. accepted sanctions under the AFL rules in respect of matters ascertained during the conduct of the joint investigation;90

179.4. made public statements calculated to signal his cooperation and support for the joint investigation (see next section below);

179.5. declined to take any steps by way of legal action or otherwise to forestall the ongoing conduct of the joint investigation and/or the ongoing conduct of ASADA’s investigation subsequent thereto;

179.6.

91 and

179.7. stated on multiple occasions (directly or through his Counsel) that he (the Applicant) intended to cooperate with the investigation:

89 The Respondent contests the assertion to the contrary in the Applicants’ submissions in paragraph 102. 90 See Deed of Settlement dated 27 August 2013: Annexure JAH-7 to Mr Hird’s affidavit sworn 30 July 2014

(also document 5 in Section F of the Respondent’s tender bundle). The Deed of Settlement between Essendon and the AFL is in vol 1, tab E-3 The first 3 pages of the Essendon Deed of Settlement are not confidential: see Annexure XC-29 to Mr Campbell’s fourth affidavit of sworn 2 July 2014.

91 See, eg, Confidential Annexure AW-6 to Walker’s affidavit; at pp 151 – 156; 266 – 269; 291 -296. See Exhibit A9.

92 Confidential Annexure AW-6 to Walker’s affidavit; per Mr Nolan SC in response to Q1702 at p291. See Exhibit A9.

93 Confidential Annexure AW-6 to Walker’s affidavit; per legal representative for Mr Hird in response to Q1699 at p287. See Exhibit A9.

Essendon and Hird’s repeated public stance to support and fully co-operate with ASADA

180. Further to the many assurances and supporting conduct that they gave ASADA, Essendon and Mr Hird made very public their decision to fully co-operate with the ASADA/AFL investigation.

181. Having regard to the nature and extent of their public statements to support and co-operate with its investigation, ASADA was entitled to take Essendon and Mr Hird at their word. The public promises of full co-operation starting at the Essendon Press Conference and repeated on numerous occasions (see below) were:

181.1. made with the authority of Essendon;

181.2. made with the authority of Mr Hird as a senior employee of Essendon;

181.3. made in furtherance of a common purpose as between Essendon, Mr Evans, and Mr Hird, being the dissemination of information to the public.

182. As to these public statements, it is not open to Mr Hird to seek to draw a distinction between Essendon and himself. Essendon is a company which can only act through its agents/officials.

96 In any event, Mr Hird participated in discussions and made decisions jointly with others such as Evans and so is bound by the decisions that were made for Essendon. This includes those decisions and statements prior and subsequent to the Essendon Press Conference: see paragraph 159 above. Accordingly, the following statements made on behalf of Essendon are also to be taken as statements of and by Mr Hird.

183. In an ‘Open Letter’ from Mr Evans published on the Club’s website on 5 February 2013, Essendon stated:97

… the club has asked the AFL and [ASADA] to conduct an investigation into supplements given to our players during the 2012 season.

… the club received concerning information that we felt required swift action. As a result, the club contacted the AFL and ASADA to request an independent investigation.

The club is now fully cooperating with ASADA and the AFL in its investigation.



96 Mr Hird’s ASADA/AFL interview: Confidential Annexure AW-6 to Walker’s affidavit; transcript pp14-15. See Exhibit A9.

97 See Exhibit A9. Annexure CM-1 (p7) to McDermott’s affidavit. Emphasis in bold added.

… it is important the investigation is given the opportunity to take its course.

184. In an ‘Investigation Statement’ made on 10 February 2013, Essendon stated:98

Essendon Football Club is fully cooperating with the AFL and ASADA investigation and is

not in a position to make any further comment.

185. On 20 February 2013, Essendon (through Evans) said:99

… The club [is] still subject to, and fully cooperating with the ASADA investigation.

186. In an Essendon press release dated 27 February 2013, Evans relevantly said:100

Three weeks ago, I asked for the AFL and ASADA’s assistance in reviewing the 2012

supplements program of the Essendon Football Club.

… we must ensure continued cooperation with the ASADA and AFL investigation.

… The Board and I are now aware of irregular practices by the club that are being investigated

by ASADA and the AFL, and that is why we have decided to call an independent and external

review into the governance and processes that have led to us being in the position we are

today.

… We expect it to be completed before the ASADA investigation.

The report will be sent to the AFL Commission and to ASADA, and I expect that the

recommendations will be made public …

187. On 11 April 2013, there was a statement by Mr Evans publicly released on Essendon’s website as follows:101

… The Essendon Football Club is the subject of an ASADA and AFL investigation.

I want to remind people that it was the Essendon Football Club who called for this

investigation, and that we have opened our club to the full weight of that process.

… I as Chairman … And the Essendon Football Club under my leadership have and will

support ASADA and the AFL in their investigations.

Furthermore anyone who truly cares about our football club, our great game and the people

who play it, support it and work in it will back ASADA too.

98 Annexure CM-1 (p11) to McDermott’s affidavit. Emphasis in bold added: see Exhibit A11. 99 Annexure CM-1 (p8) to McDermott’s affidavit: see Exhibit A11. Emphasis in bold added. 100 Annexure CM-1 (pp9-10) to McDermott’s affidavit see Exhibit A11. Emphasis in bold added. 101 Annexure CM-1 (p14) to McDermott’s affidavit: see Exhibit A11. Emphasis in bold added. :

This investigation will take time, and that is taking a toll on our club, but I repeat we must give

them the time and space that they need to come to conclusions about what happened, and

how. …

188. Following receipt of the Ziggy Switkowski report on 6 May 2013, there was an Essendon statement in which Mr Evans stated:102

I want to remind everyone that our players have not yet been interviewed, and we are still in the hands of ASADA…

And as I have said previously, and I repeat today - anyone who cares about sport or our game, and anyone who cares about our club must let ASADA do its job.

… on behalf of the Board, and with the help of ASADA, I will continue the process of talking to all our players and their families about the range of supplements and substances that may be have [sic – been] used at our club.

189. At his resignation press conference on 23 May 2013, Mr Robson stated:103

I attended the meeting at the AFL to ask for the investigation, made contact with ASADA to

self-report, and subsequently accompanied David Evans to Canberra to meet with ASADA.

...

A lot of criticism has been levelled at the Australian Crime Commission, ASADA and the now

infamous “blackest day in sport” press conference. I want to make it really clear, from my point

of view, knowing what I now know, that we must use these events as a turning point in sport.

As David Evans has said, if you care about sport, then respect the people that are trying to

investigate what happened. If there is a line in the sand, I want to be on the side of those who

put first the health and safety of players and the underlying fairness of the game.

190. At this press conference on 23 May 2013, Mr Evans said:104

[Mr Robson] was part of the decision-making that led us to self-report to the AFL and to

ASADA, and he not only supported the Board’s decision to conduct the external review, he

assisted in opening the club up to Dr Switkowski to ensure that he and all that was required to

prepare for the report was done into the Club’s governance.

… we set this process up back on the 5th of February, inviting the AFL and ASADA to look

at our football club, that process has probably taken a bit longer than what we first thought

back then, but we’ve cooperated, we’ve been incredibly transparent. There will be some

change as a result not only from Ziggy’s report but also the investigation, which hopefully is

nearing its completion. So, that’s the timeframe and I feel that we’re now starting to, at least,

sight the end, whereas back on the 5th of February there were a lot of unknowns…

191. On 25 June 2013, Essendon released a statement:105

102 Annexure CM-1 (pp20-21) to McDermott’s affidavit. Emphasis in bold added: see Exhibit A11. 103 Annexure CM-2 and Exhibit CM-1 to McDermott’s affidavit: see Exhibit A11. 104 Annexure CM-2 and Exhibit CM-1 to McDermott’s affidavit: see Exhibit A11. 105 Annexure CM-1 (p22) to McDermott’s affidavit: see Exhibit A11. Emphasis in bold added.

There is still an ongoing investigation by the AFL and ASADA initiated by the Essendon

Football Club.

The club and our players are fully cooperating with the investigation…

192. Paul Little, as the new Chairman, made a club statement on 13 August 2013 which included:106

Since the club first raised its concerns with the AFL and proactively invited ASADA to

investigate these matters, we have cooperated fully with all enquiries.

193. The Club captain (Jobe Watson) also made a statement that day that stated:107

We’ve fully co-operated with every part of the ASADA investigation and we’ve always said

we’ve got nothing to hide.

194. As late as 2 October 2013, Chairman Little said in a public speech at the 2013 Crighton Medal Presentation:108

In 2013 it was unanimously agreed by the Board that the Club had a problem and that we

should self-report our concerns to the AFL and ASADA immediately.

195. The last two statements of Paul Little were after the Interim Report was provided by ASADA to the AFL. Further, after the Interim Report had been provided by ASADA to the AFL, the club was briefing its employees about the ‘need to respect the ongoing ASADA investigation’.109 Indeed, in September 2013 Essendon was commercially leveraging off its public stance of co-operation with ASADA and the AFL in its promotional material to sponsors. Thus the ‘Partner Report’ which was designed to ‘unashamedly spell out why … should stay with the Club’110 states as follows:111

Importantly, the desire for a resolution was never going to be at the expense of the integrity of

the process and the ASADA investigation.

We recognise and understand that this has been a trying time for all our sponsors and

commercial partners. The club is appreciative of the ongoing loyalty, support and patience of

all its stakeholders during the most challenging year in our history.

106 Annexure CM-1 (p28) to McDermott’s affidavit. Emphasis in bold added: see Exhibit A11. 107 Annexure CM-1 (p26) to McDermott’s affidavit. Emphasis in bold added: see Exhibit A11. 108 Annexure CM-1 (p35) to McDermott’s affidavit. Emphasis in bold added: see Exhibit A11. 109 Document 11 in Section A of the Respondent’s tender bundle (Confidential EFC): EFC.001.040333-

040333_001. This is tab A-11 in vol 1 of Exhibit A12. (Essendon agreed to orders on 12 August 2014 that this document is no longer confidential).

110 Document 12 in Section A of the Respondent’s tender bundle (Confidential EFC): EFC.001.005184. This is tab A-12 in vol 1 of Exhibit A12. (The redacted form of the first 3 pages is agreed by Essendon to no longer be confidential: order made on 12 August 2014.)

111 As above at EFC.001.005081_003. (The redacted form of the first 3 pages is agreed by Essendon to no longer be confidential: order made on 12 August 2014.)

We have learned from our mistakes and made substantial reforms to our governance and

people management practices to ensure the Club will never be in this position again.

The Club has taken a number of important steps in this process.

- The decision to self report to ASADA and the AFL

- Full co-operation with the subsequent investigation …

Conclusion on the facts justifying denial of discretionary relief to Essendon and Mr Hird

196. It cannot be contested that Essendon and Mr Hird made very public their decision to fully co-operate with the ASADA/AFL investigation. The applicants requested the AFL and ASADA to conduct a joint investigation in early February 2013 and therefore publicly expressed support for the conduct of that investigation. Each applicant knew, as and from early 2013, that the AFL and ASADA proposed to conduct, and did conduct, a joint investigation which would (and did) involve ASADA being provided with information obtained as a result of the AFL’s exercise of its compulsory powers. Each applicant was legally represented at all material times and advertently declined to take any action to vindicate the rights they now assert.

197. The applicants could have objected to the provision of the subject material to ASADA. They did not.

198. The applicants could have objected to the AFL’s acquisition of information at the interviews convened pursuant to the AFL’s statutory powers. They did not.

199. The applicants’ failure and/or delay in taking steps to vindicate the rights they now assert had the effect of allowing the joint investigation to continue over many months, with the result that ASADA acquired a vast amount of information - all of which the applicants now seek to permanently enjoin. Had the applicants taken timely action to enforce the rights they now assert, alternative steps could have been readily taken by ASADA to acquire the exact same information lawfully. For instance, ASADA could have asked the AFL to conduct the interviews without ASADA personnel being present, by reference to set scripts, and then obtained transcripts of interviews from the AFL.

200. Each of the applicants played a significant role in the genesis of the matters investigated by the AFL and ASADA. They have admitted to, and been sanctioned for, serious governance/management shortcomings in relation to anti-doping issues. There is a compelling public interest in favour of a full and proper consideration of whether the acts and omissions of the applicants did in fact cause or contribute to ADRVs by Essendon players in the 2013 season. It is relevant that Mr Hird’s actions brought the game into disrepute. Particulars of this are in paragraph 24 (pp12-16) of the Respondent’s answer to Mr Hird’s request for further and better particulars: see tab F-10 in vol 1 of Exhibit A12. Hird admits he signed the Deed of Settlement and he is not challenging its validity: Transcript page 103 lines 5-15. Hird had legal representation: Transcript page 132.

201. Refusal of relief in light of the above considerations is strongly supported by the reasoning of the ACT Supreme Court (Full Court) in the case of DPP v Martin referred to in paragraph

153 above. In refusing relief the Full Court took into account the following factors (which have self-evident relevance to the present proceedings):

201.1. the DPP permitted the Inquiry to continue unchallenged for a period of 14 months before seeking judicial review (at [358]);

201.2. rather than seeking judicial review, the DPP chose to try and persuade the Inquiry to take a particular course (at [358]);

201.3. the result of the DPP’s inaction and his election to engage with the Inquiry, rather than seek judicial review, was that ‘by the time the hearing in this Court had started, the inquiry was well under way and a vast amount of money had been spent’ (at [358]);

201.4. by the time the matter came before the Court, most of the evidence had been taken by the inquiry (at [360];

201.5. by the time the matter came before the Court events had occurred which could not be undone (at [361]);

201.6. the Inquiry appeared to have uncovered issues ‘which cry out for resolution’ (at [362]).

202. In Re Refugee Review Tribunal; Ex parte Aala,112 Gaudron and Gummow JJ cited with approval the following statement of Lord Denning MR in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:113

[An applicant] may be debarred from relief if he has acquiesced in the invalidity or has waived

it. If he does not come with due diligence and ask for it to be set aside, he may be sent away

with nothing: see Reg v Aston University Senate, Ex parte Roffey [1969] 2 QB 538.

203. In Reg v Aston University Senate, Ex parte Roffey [1969] 2 QB 538 Donaldson J stated (at 555C-D):114

The prerogative remedies are exceptional in their nature and should not be made available to

those who sleep upon their rights. Mr Pantridge's complaint is that he was not allowed to re-sit

the whole examination in June 1968, and if successful, proceed to pass the degree in the

1968-69 academic year, yet he did not even apply to move this court until July, 1968. By such

inaction, in my judgment he forfeited whatever claims he might otherwise have had to the

court's intervention.

112 (2000) 204 CLR 82 at 108 [57]. 113 [1975] AC 295 (CA) (affd [1975] AC 329) (at 320B-D). 114 See also Blaine J at 559E-G and Lord Parker CJ at 560[A]-[B].

204. Finally, the applicants seek orders in respect of the whole of the ASADA investigation. If the Court finds that aspects of ASADA’s investigation were unlawful (for example, aspects conducted jointly with the AFL), then any grant of relief should be confined to those particular aspects.

Date: 8 August 2014

Updated for closing submissions 13 August 2014

TOM HOWE QC

DR SUZANNE McNICOL QC

DAN STAR

Counsel for the Respondent

…………………………………………. Craig Rawson

A Solicitor employed by the Australian Government Solicitor

Solicitor for the respondent

20140827 annotated asada opening submissions for closing

Documents

asada act

asada bill

general antidoping convention

asada amendment bill

world antidoping code

fundamental issues

nad scheme

preliminary submissions