25 Mr Hird and Essendon submit that ASADA’s decision to proceed to investigate Essendon in the way that it did was driven by ASADA’s desire to harness the AFL’s compulsory powers in aid of the investigation.
26 In relation to this submission, I make the following response.
27 The “desire” to use or “harness” the AFL’s compulsory powers can immediately be accepted as one consideration that was relevant to ASADA’s interest in seeking the co-operation of the AFL. It was not ASADA’s purpose for conducting of the investigation.
28 ASADA’s purpose was as I have already described; that is, to investigate possible anti-doping violations. The “harnessing” of the “compulsory powers” of the AFL needs to be put in context. ASADA was not using any power of coercion or compulsion or any power of sanction under the Act or NAD Scheme. Mr Hird and the 34 Players could refuse to produce documents to, and to answer questions put to them by, ASADA or the AFL, but in doing so would breach their contractual obligations with Essendon and the AFL. Whether or not the 34 Players (or even Mr Hird) felt they had no choice to answer questions in front of ASADA and the AFL, is not to the point. The legal consequences of Mr Hird and the 34 Players voluntarily entering into the contractual regime with Essendon and the AFL, and subjecting themselves to the Player Rules and AFL Code, included undertaking certain obligations and relinquishing certain rights. One such right was the right to claim the privilege against self-incrimination before the AFL subject to the carve out in r 1.9 of the Player Rules. Similarly, obligations were imposed on Mr Hird and the 34 Players to co-operate with the AFL and ASADA in investigations. There is no suggestion in these proceedings that Mr Hird or any of the 34 Players did not understand the nature of the contractual obligations undertaken, or the rights they were giving up, in return for the right or privilege to play or coach AFL football for Essendon in the AFL competition.
29 The use of the compulsory powers by the AFL (and not by ASADA) did not thwart or frustrate the purpose of the Act or the NAD Scheme. ASADA did not use any compulsory power of its own, and Mr Hird and the 34 Players did not answer questions or provide any information arising from any requirement to do so under or pursuant to the Act or NAD Scheme. No power of the State has been utilised by ASADA to compel Mr Hird or the 34 Players to act in the way they did during the investigation.
30 I now turn to the contentions relating to the Interim Report.
31 In my view, the Interim Report was given to the AFL for both “the purposes of” the continuing ASADA investigation, and “in connection with” the ASADA investigation.
32 As to being used for “the purposes of” the investigation, as I have already mentioned the ASADA letter of 2 August 2013 made it clear that ASADA was requesting information from the AFL for ASADA’s continuing work on its investigation.
33 As to the question of whether the Interim Report was given “in connection with” the ASADA investigation, the following can be concluded.
34 On the evidence before the Court, the investigation disclosed a strong link between deficient governance and management practices at Essendon and the possibility of Essendon players being involved in anti-doping violations. This can be seen from the Statement of Grounds brought by the AFL against Essendon and Mr Hird, and by reference to the Deeds entered into by Essendon and Mr Hird in the settlement of the disciplinary charges brought against them by the AFL.
35 The Interim Report itself identified a connection between deficient governance and management practices on the part of Essendon personnel and the possibility of players being involved in anti-doping violations.
36 Therefore, the poor governance and management practices at Essendon were related to possible anti-doping violations by Essendon players, to the extent that such violations may have been systemic, or may have occurred because proper governance and management practices were not in place. This seems to have been the very situation that existed at Essendon. The disclosure of investigative information to enable the AFL to consider and, if thought appropriate, take disciplinary action against Essendon and its officials in this way was connected with the ASADA investigation.
37 For the reasons I will publish, I will order the dismissal of the applications brought by Essendon and Mr Hird.
38 However, if I had found the investigation to be unlawful or the provision of the Interim Report to be unauthorised or done for an improper purpose, issues would have arisen as to the exercise of the Court’s discretion in granting relief.
39 The courts have a responsibility to vindicate rights and ensure that public bodies act within the law. I do not consider that the discretion to refuse relief should be described as exceptional or rare in circumstances where a public body has acted unlawfully. However, there is a basic presumption that appropriate relief should follow upon a finding of unlawfulness.
40 In these proceedings, I would not have declined to set aside the Notices or grant injunctive orders on the basis of public policy, delay, acquiescence or the conduct of either Essendon or Mr Hird.
41 The only grounds in my view which would have precluded relief are the grounds of inevitable outcome and utility.
42 The AFL could itself have separately and lawfully (pursuant to the contractual regime) compelled the 34 Players and Mr Hird to provide the very information in fact provided by them in the course of the investigation.
43 ASADA could then have requested the provision of information from the AFL, or the AFL could have volunteered the information. The privileges against self-incrimination would not have been claimed in relation to the AFL due to the contractual obligations of Mr Hird and the 34 Players. In such a scenario, there would have been no question of unauthorised information being divulged or communicated by ASADA, as the AFL would have divulged or communicated the information to ASADA.
44 As to the future, no useful purpose would be served by setting aside the Notices or the grant of injunctive relief sought by Mr Hird and Essendon, because the process set out above could then be undertaken by the AFL and ASADA. I am not suggesting that this could be done by the simple expedient of obtaining the transcripts of the interviews in the possession and control of the AFL. This may not be permissible if the information contained in such transcripts was obtained unlawfully by ASADA.
45 However, the Court would not frame an order which prevents ASADA from being able to carry out its statutory functions in accordance with the law, even if that involves the derivative use of information sourced from the unlawfully conducted interviews. Nor does the power of the Court extend to removing from the memory of ASADA the material it has gathered in the joint investigation, some of which was lawfully obtained in any event.
46 If ASADA had made an unlawful decision, itself a nullity as contended for by Mr Hird and Essendon, this would not prevent a decision-maker making another lawful decision: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
47 The CEO or ASADA could in the future lawfully obtain effectively the same information by further interviews conducted independently by the AFL, which information would be given to ASADA. Mr Hird and the 34 Players can hardly be heard to contend before this Court in these proceedings that they would break their current contracts with Essendon and the AFL, and fail to provide requested information to the AFL.
48 The CEO would then need to consciously re-consider whether to issue new notices based upon that information and any additional material before him.
49 I make a final observation relating to the declaration sought concerning the Interim Report. If I had come to the view that the provision of the Interim Report to the AFL was unlawful, I would have been disinclined to make the declaration sought.
50 The Interim Report was provided to the AFL on 2 August 2013, with the knowledge of Mr Hird, Essendon and the 34 Players. No proceedings were brought to challenge the provision of the Interim Report to the AFL until the commencement of these proceedings.
51 More significantly, the AFL (not a party to these proceedings) has acted upon that Interim Report, bringing disciplinary charges against Essendon and Mr Hird. Both Essendon and Mr Hird entered into settlements with the AFL in relation to those disciplinary charges.
52 By way of conclusion, in my view, ASADA complied with the rule of law in establishing and conducting, in the manner and for the purposes it did, the investigation.
53 In addition, ASADA lawfully provided the Interim Report to the AFL, which has subsequently been acted upon by the AFL in bringing disciplinary charges against Essendon and Mr Hird.
54 On the basis of the reasons I now publish, the applications of Mr Hird and Essendon are dismissed.
55 In each application the Court orders the following:
(a) The application is dismissed.
(b) Unless a party notifies in writing the Court by 4:00pm on Wednesday 1 October 2014, indicating opposition to this order as to costs, the Applicant pay the Respondent’s costs of and in connection with the proceeding to be taxed in default of agreement.
http://www.news.com.au/national/justice-john-middletons-full-ruling-against-essendon-and-james-hird-in-the-federal-court/story-e6frfkp9-1227064187952
