Justice John Middleton’s full ruling against Essendon and James Hird in the Federal CourtHerald-Sun
September 19, 2014JUSTICE John Middleton has thrown out Essendon and James Hird’s court bid to stop the ASADA-AFL investigation into the club. Read his full judgment below.
IN THE FEDERAL COURT OF AUSTRALIA
Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping
BREAKING: BOMBERS PLAYERS IN THE GUN AFTER COURT DISASTER
JUDGE: MIDDLETON J
DATE: 19 SEPTEMBER 2014
PLACE: MELBOURNE
EXTRACTS FROM THE REASONS OF THE HONOURABLE JUSTICE JOHN MIDDLETON
CLICK HERE TO READ THE FULL 129-PAGE VERDICT1 In early February 2013, the Chief Executive Officer (‘CEO’) of the Australian Sports Anti-Doping Authority (‘ASADA’) and the Australian Football League (‘the AFL’) agreed to conduct what was referred to by them as a “joint investigation” into the Essendon Football Club (‘Essendon’) players and personnel involved in a supplements program implemented by Essendon in 2011 and 2012. The investigation may be referred to as a “joint investigation”, but whatever label is given to the investigation is of little relevance. The important inquiry is to consider the nature, purpose and conduct of the investigation itself.
2 In these proceedings (which were heard together), Essendon and Mr James Hird essentially allege that the CEO and ASADA had no power to conduct the joint investigation in the way it was conducted (involving the use by ASADA of AFL “compulsory powers” and unauthorised disclosure of information), that the joint investigation was undertaken for improper purposes, and that ASADA breached its confidentiality obligations during the course of the investigation and in the provision to the AFL of an interim report.
3 ASADA has very important national and international functions to perform. The fight against doping requires constant vigilance, upgrading of investigatory techniques, and well-resourced and co-ordinated authorised bodies to educate, monitor, investigate and prosecute in appropriate situations. The adoption of innovative processes and methods of investigation is to be strongly supported. ASADA and a “sporting administration” or “sporting administration body” (such as the AFL) may need to act jointly and co-operate with each other for the purposes of implementing their own responsibilities. However, all statutory authorities (including ASADA) must comply with the rule of law and proceed only in a manner (expressly or impliedly) authorised by law. The essential question in these proceedings is whether ASADA has so complied with the rule of law in conducting, in the manner and for the purposes it did, the investigation.
4 The AFL is also not a party to these proceedings. No relief is sought against the AFL. No Commissioner of the AFL, nor any agent or employee of the AFL has given evidence. No contention has been made that the contractual “compulsory powers” relied upon by the AFL were unenforceable at common law or because of any legislative provision. For instance, it has not been suggested or pleaded by any party that the “compulsory powers” in the contractual arrangements between the AFL, Mr Hird and the 34 Players are unenforceable on the basis they are contrary to public policy or that they are unconscionable. In fact, the parties, ASADA, the AFL and the 34 Players all regarded the “compulsory powers” of the AFL as being valid and enforceable, and each acted accordingly.
5 The 34 Players are not parties to these proceedings. No party sought to join any of the 34 Players.
6 The 34 Players have a significant interest in these proceedings and the relief sought, particularly in setting aside the Notices which directly impact upon them.
7 I should briefly refer to the witnesses. Mr Hird relied upon his own affidavits and was cross-examined. Essendon relied upon an affidavit filed by Mr Xavier Campbell (the current CEO of Essendon), who was cross-examined. The CEO relied upon the affidavits of Ms Aurora Andruska (the former CEO of ASADA), and Messrs Trevor Burgess (National Manager — Operations at ASADA) and Aaron Walker (an investigator at ASADA), who were cross-examined and an affidavit of Christopher McDermott (a lawyer on behalf of ASADA), who was not cross-examined.
8 The only witness whose credit was impugned was Ms Andruska. It was submitted by Essendon and Mr Hird that Ms Andruska was non-responsive, evasive and partisan. It was observed, as was the fact, that there were long pauses between the questioning of Ms Andruska and her responses.
9 I do not consider these criticisms, to the extent they impact on her veracity, can be sustained. Ms Andruska was a truthful witness. Ms Andruska was careful in all her responses, and in my view wanted to consider properly each question, seeking to provide a truthful answer. Ms Andruska provided convincing and credible explanations for the steps she or her investigators took in undertaking the co-operative arrangement between ASADA and the AFL for the purposes she outlined in her affidavit evidence. Ms Andruska was a very experienced public servant, and explained during the course of detailed cross-examination the approach undertaken by herself and investigators of ASADA and the AFL. The cross-examination traversed many areas of detail relating to various meetings and decisions made in the course of the investigation. I would have expected Ms Andruska to be careful in responding to the interrogation made of her on these matters, as indeed she was.
10 In some instances, Ms Andruska did take the opportunity to explain her position as to the propriety and purpose of ASADA’s conduct in the investigation, and her characterisation of the events which occurred. Having regard to the issues in these proceedings, and the challenge to the lawfulness of her own actions as CEO of ASADA, this was to be expected. In many instances, her evidence gave context to her file notes that were in evidence before the Court. Where necessary Ms Andruska took time to refer to her notes, which again was only to be expected. It was apparent from her evidence that she relied upon her staff, including legally qualified staff, and her investigators, in effectively guiding and conducting the investigation. As CEO, Ms Andruska was entitled to delegate certain administrative tasks to her staff, within the limits provided for by the Act, and the NAD Scheme. Obviously, during the course of the investigation, many decisions were properly left to the investigators within ASADA.
11 It is important to recall that these proceedings do not involve a broad and general inquiry (outside the pleaded case) as to the general conduct of the investigation, nor the day to day activities of Ms Andruska or her investigators during the course of the investigation. I have come to the view that Ms Andruska was under some pressure from the then Federal Government and the AFL to bring the investigation to an end as soon as possible, and to assist the AFL so that the AFL could take disciplinary proceedings against Mr Hird and Essendon prior to the 2013 AFL finals season. However, I do not regard such pressure as giving rise to any dereliction by Ms Andruska in respect of her responsibilities, under the Act or the NAD Scheme.
12 For the purposes of these proceedings, I do not need to consider or comment on the propriety of the intervention made by the then Federal Government during the course of the investigation. Section 24 of the Act provides that the relevant minister may, by legislative instrument, give directions to the CEO in relation to the performance of his or her functions and the exercise of his or her powers. However, such a direction must not relate to a particular athlete, or a particular support person, who is subject to the NAD scheme, or relate to the testing of a particular athlete under an anti-doping testing service, or safety checking service, being provided by the CEO under contract on behalf of the Commonwealth.
13 ASADA is to be independent from the influence of government, save for the power of the relevant Minister to give directions, by legislative instrument, as contemplated by s 24 of the Act. The Act does not empower the Minister to override the exercise of the CEO’s statutory powers in relation to a specific athlete, and requires any direction to be made by legislative instrument. Ministerial direction outside the specific permission given by the Act would normally be treated as impliedly forbidden.
14 The determination of these proceedings primarily depends upon the correct characterisation of the events which occurred, and the purpose and nature of the investigation by ASADA with the co-operation of the AFL.
15 Based upon the evidence as presented to the Court and from the admissions made by the parties, I conclude as follows:
(a) By 1 February 2013, both ASADA and the AFL had agreed (in general terms) to investigate Essendon.
(b) By 1 February 2013, ASADA agreed (in general terms) with the AFL, that as ASADA lacked compulsory powers, ASADA would gain the benefit of the AFL’s compulsory powers in conducting its investigation.
(c) ASADA would have commenced an investigation into Essendon, its players and personnel without the invitation of Essendon or Mr Hird, and without their public display of support and co-operation.
(d) In light of ASADA’s statutory responsibilities, upon becoming aware of possible anti-doping violations, ASADA would have investigated Essendon, its players and personnel (and probably other clubs) with or without the co-operation of the AFL.
(e) ASADA would have decided to investigate Essendon, its players and personnel (and probably other clubs) without recourse to the AFL’s contractual powers to compel Mr Hird and the 34 Players to answer questions and provide information as requested by the AFL.
(f) Although Mr Hird publicly supported for the “joint investigation”, privately he did not, but was motivated to co-operate with ASADA and the AFL in the best interests of Essendon and its players.
(g) Nevertheless, Essendon, Mr Hird and the 34 Players all co-operated because of their contractual obligations to do so, which required them to attend interviews, answer questions and provide information to the AFL, and to co-operate with ASADA.
(h) Mr Hird and the 34 Players, under their contractual obligations were required to answer questions of, and provide information to, the AFL subject to a limited right to claim the privilege against self-incrimination.
(i) Mr Hird and the 34 Players were legally represented at all relevant times, co-operated with the investigation, did not claim to exercise the privilege against self-incrimination, and provided information:
(i) in respect of the interviews directly to the AFL and ASADA; and
(ii) in respect of other information provided at the request of the AFL, directly to the AFL which was then passed on to ASADA.
(j) The information provided at the interviews by Mr Hird and the 34 Players was simultaneously divulged and communicated to the personnel of both the AFL and ASADA, who were present in the interview room.
(k) The investigation involved the AFL working co-operatively with ASADA, as the AFL was obliged to do under the NAD Scheme.
(l) The investigation involved the co-operation of ASADA and the AFL in terms of strategy, the sharing of financial and personnel resources, and in the conduct of interviews. Their co-operation was evident in the day to day conduct of the investigation as it progressed.
(m) The investigation required co-ordination between ASADA and the AFL as to the conduct of the investigation, including the arrangement of interviews, the collection of physical evidence, and the preparation of documents. These were matters of procedure and machinery, upon which various investigators (either within ASADA or the AFL) took responsibility in the course of the investigation. The fact that either ASADA or the AFL personnel took responsibility for one or other of these matters does not impact upon the conclusion that the investigation was undertaken by ASADA with the co-operation of the AFL.
(n) ASADA benefited from the co-operation of the AFL in two main ways:
(i) First, it benefited from the AFL’s use of its compulsory powers (whether formally or not) to require production of physical evidence, documents, computers and phones, which were provided to ASADA.
(ii) Secondly, it benefited from the AFL’s use of its compulsory powers to arrange for Mr Hird and the 34 Players to attend interviews and answer questions truthfully.
(o) ASADA and the AFL had different but related, purposes:
(i) ASADA’s purpose was to investigate allegations of anti-doping violations;
(ii) The AFL, concerned with anti-doping violations, was interested in the governance of its clubs, such as Essendon, so as to ensure the AFL anti-doping policy was being properly implemented at the club level.
(p) The investigation undertaken by ASADA in co-operation with the AFL in fact resulted in both ASADA and the AFL each making two separate and distinct decisions within their own areas of responsibility;
(i) in the case of the CEO of ASADA, to issue the Notices; and
(ii) in the case of the AFL, to bring disciplinary charges against Essendon and Mr Hird.
(q) The Interim Report given to the AFL was prepared for, and divulged or communicated to, the AFL for the purposes of ASADA’s continuing investigation, as set out in the covering letter dated 2 August 2013, but also in the knowledge that it would also be used by the AFL for the purpose of the AFL considering whether to bring disciplinary action against Essendon and Mr Hird.
16 These proceedings are brought under s 39B of the Judiciary Act 1903, involving the judicial review of administrative action.
17 Judicial review can be described broadly as the function of courts to provide remedies to people adversely affected by unlawful government action. Importantly, the purpose of judicial review is to ensure the legality of government action, rather than its correctness: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.
18 No statutory power is required enabling a statutory authority merely to request that a person provide information voluntarily. ASADA had the power to request Essendon, Mr Hird and the 34 Players to provide information and answer questions voluntarily as part of its investigation: see Clough v Leahy (1904) 2 CLR 139 at 155-157 per Griffith CJ (Barton and O’Connor JJ concurring).
19 However, express or implied statutory power is required to compel the provision of information, or the answering of questions: see, eg, McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 at 101-102, Day v Commissioner, Australian Federal Police (2000) 101 FCR 66; [2000] FCA 1272 at [11] and Williams v Commonwealth (2012) 248 CLR 156; [2012] HCA 23 at [63].
20 The executive government can procure the enactment of laws requiring the attendance of persons before those persons it designates to conduct an inquiry and requiring them to produce documents and to answer questions. If the requirements to attend, give evidence and produce documents are disobeyed, a sanction can be imposed. It is this element of power which distinguishes the governmental investigation from investigations by other entities. The element of power comes from the ability to compel the giving of evidence, with the imposition of a sanction.
21 The foremost response to the contention of Mr Hird and Essendon that Parliament did not authorise “a joint investigation” is that as a general proposition, this is too wide. Whether any investigation is lawful or not will depend upon the characterisation of its purpose, and the conduct and nature of that investigation. The investigation of ASADA, the subject of these proceedings, I have found was for the purpose of investigating anti-doping violations. In addition, as I will indicate, the nature and conduct of the investigation was lawful.
22 In respect of the nature and conduct of the “joint investigation”, Essendon and Mr Hird contend that it involved unlawful disclosure of information by ASADA.
23 Once it is appreciated that the AFL received the information directly from Mr Hird and the 34 Players in the course of the interviews, and not by being given the information by ASADA, then none of the protective provisions referred to by Essendon or Mr Hird applied in their terms to prevent the AFL receiving the information. In other words, in this particular investigation, Mr Hird and the 34 Players voluntarily and directly gave to the AFL the answers to questions and the information without complaint. Based upon my finding that the information provided at the interviews by Mr Hird and the 34 Players was simultaneously divulged and communicated to personnel of the AFL and ASADA, there was no disclosure of any information by ASADA to the AFL in the interviews.
24 In any event, by actually being in the interview room, knowing that AFL personnel were present, being aware that the Player Rules were applicable to the interview process, and by responding to each and every question, it can hardly be said that Mr Hird and the Essendon players and personnel did not knowingly consent to any information being disclosed then and there to all in the interview room.
