20140827 Closing Submissions Final Redacted
-
Upload
danielbest -
Category
Documents
-
view
10 -
download
7
description
Transcript of 20140827 Closing Submissions Final Redacted
EFC/HIRD v CEO of ASADA
REDACTED CLOSING SUBMISSIONS
1 This case concerns the legality of an investigation into possible violations of
the anti-doping rules. EFC's case is that, from its inception, the investigation
was invalid and unlawful, both because it was beyond power and because it
was mounted for improper purposes.
2 As pleaded, the Respondent's defence that there was no joint investigation,
but rather separate and parallel investigations by ASADA and the AFL, is
spurious. The lead ASADA investigator, Mr Nolan, summed up the course of
events from February to August 2013 in his email of 30 July 2013, extracted
at paragraph 95 of the EFC's opening submissions. The evidence shows
that, in fact, there was no separate AFL investigation of any kind.
3 As opened, 1 the Respondent's case is that ASADA was permitted to, and did:
(a) conduct a joint investigation which extended not only to doping
offences, but to potential disciplinary charges the AFL might lay; and
(b) prepare, and provide to the AFL, an interim report which included
(indeed focussed on) matters going to disciplinary charges the AFL
might lay.
4 These submissions are structured to focus on the issues and evidence as
they stand at the conclusion of the evidence. They are additional to the
Applicants' written opening submissions, which we continue to rely upon.
5 The Respondent's case does not match either its evidence or the evidence as
a whole.
(a) First, the evidence shows that ASADA's CEO never made a decision,
let alone a considered decision, that the establishment of a joint
investigation, with AFL representatives present at interviews and
receiving a continual flow of information from the investigation, met
the requirements of the ASADA Act. There is no evidence that a
Cf the case pleaded, which denied a joint investigation.
2
considered decision to establish a joint investigation, and to conduct
the investigation on the basis that the AFL obtained immediate access
to almost all investigative information for its own purposes, was made
by anyone. It just developed in the way that the AFL suggested, as
the quid pro quo for ASADA being able to use the AFL's compulsory
powers.
(b) Secondly, Ms Andruska's evidence was that ASADA had committed
itself to providing an interim investigation report to the AFL before
1 August 2013; she knew that the AFL planned to use the report to lay
disciplinary charges against EEC and support staff; she knew that the
use of the report for those purposes would not satisfy the
requirements of the Act; but nevertheless she did not take effective
steps to prevent that occurring. In fact, she delayed objecting to the
AFL's use of the report for that purpose until 15 August and took no
effective steps thereafter to intercept the disciplinary proceedings.
6 In support of its case, the Respondent advances an incorrect construction of
the Act and the Regulations, which seeks to bring AFL disciplinary charges
within ASADA's remit. For the reasons set out below, the Respondent's
construction of the Act and the Regulations is wrong, and his contentions
regarding the scope of ASADA's jurisdiction are unfounded.
7 Before moving on to substantive matters, the Applicants observe that, in her
evidence, ASADA's key witness, Ms Andruska was non-responsive 2 , evasive 3 and partisan 4 . She frequently avoided answering the question asked, instead
giving speeches5 to persuade the court of the validity of ASADA's course of
action under her stewardship. Ms Andruska sought to disassociate herself
from decisions that were not formally put to her in writing. 6 The Court will also
2 For example, when asked about who made the decision to conduct joint interviews, Ms Andruska sought to avoid answering the question and proceeded to give a speech on ASADA's general relationship with the AFL: TS185.12-TS187.8. See also Ms Andruska's non-responsive answers at TS160.43-TS161.6.
3 For example, in answering questions regarding her knowledge of the AFL's objective to use the information to pursue disciplinary charges: TS170.42-TS171.27. See also the passage in relation to Mr Owens on 24 May 2013: TS190.1-22
4 In particular, note Ms Andruska's characterisation of her 2 August letter at TS213-214 5 For example, at TS179, eg TS187 6 In relation to whether she approved the conduct of joint interviews, Ms Andruska answered that
"1 was not asked to approve it in that way" and "I was not given a document to sign to say that I
3
have noted Ms Andruska's long pauses (which are not recorded on the
transcript) before answering questions, the answer to which would not assist
ASADA's case.'
I. The agreement to establish and conduct a joint investigation
8 By 1 February 2013 ASADA and the AFL had devised and agreed to conduct
a joint investigation. This occurred without any invitation or involvement of
EFC or Hird. In particular:
(a) At a meeting on 31 January 2013, ASADA and the AFL discussed an
investigation into AFL clubs (ASADA having decided for itself to
conduct an investigation into AFL clubs, including EFC).
(I)
ASADA prepared a briefing note for the meeting.. This
was circulated internally, before the meeting, on 30
January 2013. 8
(ii) Andruska of ASADA took notes of the meeting. 9 Paul
Jetovic from the ACC attended. Andruska's notes record,
among other things, that:
(A) GilIon McLachlan of the AFL asked is it Essendon?',
to which Jetovic responded 'say no more'. 1°
(B) ASADA and the AFL were there 'to collaborate'.
(C) Demetriou expressed the AFL's 'commitment' to
`cooperate and share'."
approved ...": TS175.17-23. See also TS186.30-33 for Ms Andruska's emphasis on what was "written down".
7 For example, when it was put to her that "at the meeting of 31 January ... ASADA had already determined that it was going to investigate the AFL as at 31 January", Ms Andruska paused for a sustained period before ultimately asking for the question to be repeated. Ultimately, Ms Andruska conceded that ASADA had already determined that it would be undertaking an investigation as at that date: TS151.14-22. The Court may also have noted Ms Andruska's pauses in answering questions regarding objections to the legality of the joint investigation in the passage of cross-examination at TS206. a ACB.C.08.2856 (internal ASADA email). The attached document is ASA.0002.0082 . ACB.C.04.0227 (a more fulsome version than Annexure AA-2).
10 T 147, In 30. 11 T145, In 5.
4
(D) There was discussion about a strategy that the AFL
proposed the investigator use, including use of the
AFL code of Conduct and the WADA Code. 12
(iii) Andruska's evidence was that 'elements' of the
investigation that were put forward by the AFL are
recorded in her note and that these were put forward to
her for consideration in her role as CEO of ASADA. 13
(iv) Andruska conceded that, as at 31 January 2013, ASADA
had determined that it was going to investigate the EFC. 14
(v) Further, she agreed that a highly confidential briefing
(which mentions EFC) was probably provided to the AFL
in late January or early February. 15
(vi) There is no evidence that the AFL was an 'entrusted
person' for the purposes of the Act at that point in time, or
afterwards, throughout the period over which the
investigation took place.
(vii) Andruska could not recall whether ASADA obtained legal
advice regarding the disclosure of the matters contained
in the briefing note to the AFL. 16
On 1 February 2013, ASADA and the AFL agreed that, as ASADA lacked
compulsive powers, it would make use of the AFL's compulsory powers by
establishing and conducting a joint investigation. Ms Andruska, ASADA's
CEO, recorded the following in her notes of 1 February 2013: 17 when
Clothier of the AFL said that the AFL had compulsory powers that ASADA
did not possess, her response was that "we can use AFL's powers until we
get our own powers".
12 T148, In 5. 13 T 148, In 30 to T149, In 5. 14 T 151, In 20 and In 40. 15 T 152, In 35.
T 153, In 35; T 154, In 5. 17 ACB.C.04.0230.
5
(i) Andruska understood the purpose of the teleconference
was to discuss how an investigation into the EFC might
be conducted. 18
(ii) She gave evidence that, at that point, ASADA had
determined that it would proceed with an investigation
into EFC. 18
(iii) Andruska understood that the proposal was for ASADA to
use the AFL's contractual powers to gather investigative
information until ASADA got its own. She conceded that
ASADA did not have its own powers of compulsion at the
time and needed to rely upon the AFL's."
(iv) This 'information acquisition regime' 21 is contrary to the
case put by ASADA in its opening: namely that the flow
of information between ASADA and the AFL was a
consequence of the AFL's statutory obligation to
cooperate.
(v) Andruske understood, as at 1 February 2013, that the
AFL was proposing to use a case management database
that would be 'fed constantly' with information which
would be shared with the AFL. 22 This was the quid pro
quo for the use of the AFL's compulsory powers.
(vi) She conceded that ASADA had not placed any limitations
upon the AFL's use of information as at 1 February
2013.23 Andruska thought an existing 'confidentiality
undertaking'that she did not identify any more specifically
was sufficient protection 24 and did not give any
consideration to the propriety, or otherwise, of the flow of
information to the AFL. She said what occurred was in
18 T 155, In 45. 19 T 157, In 40. 20 T 158, In 10 to 30 to T 160, In 39.. 21 To use the words of Mr Howe QC (transcript for 11 August 2014, T 30, In 5). 22 T 156, In 1 to 15. 23 T 156, In 40. 24 T 157, in 15.
6
line with `established practice' from before Ms Andruska's
time, and she never identified it with any precision. 25
(vii) There is no evidence that anyone within ASADA
considered the strict confidentiality requirements of the
Act and the Regulations.
(viii) At that point in time, ASADA had commenced drafting
what became known as the Operation Cobia Investigation
P Ian .26
(b) At about 9.00am on 5 February, Clothier of the AFL told ASADA that
the AFL intended to use information gathered by the joint investigation
to consider bringing charges against EFC, such as "bringing the sport
into disrepute": see Nolan's email to Clothier of 6 February 2013.
(ii) Clothier told the ASADA representatives that the media
were 'onto Essendon'.
(iii) The next day, Nolan emailed Clothier seeking details of
player registration (a source of the AFL's powers over
players). 29
25 T 157, In 24. 26 Walker Affidavit, at paragraph 8 (ACB.A.02.0514). Annexure AW-1 (ACB.A.02.0533).
ACB.C.08.02817.
7
(iii) On 17 April 2013, Clothier emailed Nolan his note of the 5
February 2013 meeting enclosing his file note of 5
February 2013. 32
9 Thus, the agreement between ASADA and the AFL to establish a joint
investigation occurred before:
(a) Robson of EFC telephoned Andruska at about 1.30pm on 5
February 2013;33
(b) EFC's press conference at 3.28pm on 5 February 2013. 34
(i) The joint investigation did not arise from any request from
the EF
(ii) Andruska's evidence was that, by that date, ASADA was
'in agreement with the AFL that [it] would work together
for — on the investigation'. She conceded that there was
an `understanding' that ASADA and the AFL would
undertake an investigation and that the term 'joint
investigation' became 'common language'. 36
(iii) Having given that evidence, Andruska sought to retract
from it. She said she didn't recall precisely when an
agreement was made with the AFL for the conduct of a
joint investigation; she couldn't be 'specific about the date
and actual time' and could 'not comment upon' simple
propositions put to her in cross-examination. 37 In the
end, she agreed that she would not dispute the accuracy
of any statement by the AFL to the effect that there was a
joint investigation established as at 9am on 5 February
32 ACB.C.07.2270. 33 Andruska Affidavit, at paragraphs 13 to 17 (ACB.A.02.0578). Annexure AA-4 (ACB.04.0232).. 34 McDermott Affidavit, Annexure CM-1 (ACB.A.0692). 111.1.1=11111
T 161, In 25 to 45. 37
T163.
2013. 38 Later, she agreed that ASADA's investigation
with the AFL was conducted as a joint investigation from
its outser. 39
(iv) Andruska would not accept that it was disingenuous for
ASADA to suggest, in the Interim Report, 4° that the
agreement to conduct a joint investigation was in
response to a request from Evans (of EFC). 41 But it is
inevitable that statement is wrong, particularly in light of
subsequent evidence that 'ASADA would have
undertaken an investigation irrespective of any
cooperation by the AFL'. 42 The words "in response"
falsely asserted a causal nexus when there was none,
not just a temporal sequence.
10 The joint investigation did not arise from any request from the EFC, contrary
to the picture presented by ASADA in its Interim Report and contrary to the
Respondent's case.
11 ASADA's pleaded defence that there was no joint investigation, but rather
separate and parallel investigations by ASADA and the AFL, is spurious. 43
(a) It was Andruska's understanding by 9 February 2013 that there would
be a joint investigation."
(b) Further, she understood that the AFL was interested in exploring
potential breaches of the Player Rules and what sanctions might be
laid against EFC and players. Andruska's evidence was that such
matters were of 'secondary' importance to her and that she was
mainly concerned about anti-doping rule violations. 45
38 7 163, In 40. 39 T 165, In 35. 40 At ACB.C.05.0802. 41 T 167, in 34 to 41. 42 T 167 1 to 30. 43 Note ASADA departed from its pleaded case at the hearing. 44 T 170, In 9. 45 T 170, In 10 to 47. See also T 170, In 10 to 25 and T 177, In 5 to 15.
9
12 The lead ASADA investigator, Mr Nolan, summed up the course of events from February to August 2013 in his email of 30 July 2013, 46 extracted at paragraph 95 of the EEC's opening submissions. In his words, there was "never ... anything other than a joint investigation" and it involved an "open sharing of information". This email was circulated to Andruska on 20 August 2013.47
IL The conduct of the joint investigation
13 ASADA ran the investigation. The AFL functioned as ASADA's secretariat.
14 The following matters are clear from the evidence:
(a) Andruska did not make any decision to approve the conduct of joint interviews;48 alternatively she could not recall whether she made a decision approving such a practice.49 She considered the participation of an outsider (the AFL) in the interviews to be in accordance with 'previously used practice'. 5°
(i) This evidence should not be accepted. It is contrary to
the scheme of the Act
(ii) There is no evidence that the problem raised by Mullaly in
his email was ever resolved (or indeed considered in any
detail) by ASADA. 52
(b) Andruska left matters such as the decision to conduct joint interviews to her subordinate, Ms Perdikogiannis (still employed by ASADA). 53
(I)
Andruska did not know whether there had in fact been
any decision within ASADA to conduct joint interviews. 54
46 ACB.C.05.1240. 47 ACB.C.04.0555. 48 T 175, In 10. 49 T 176, In 37. 5° T 175, In 40 to 45. 11.1.11111.1.1
T 179, In 25 to 26. 53 T 179, In 5 to 19.
10
(ii) Andruska did not turn her mind to the propriety of such a
course at the time because joint interviews had been
conducted in the past. 55
(iii) Andruska agreed that there is no record of the decision to
conduct joint interviews. 56
(c) The reality was that the problem identified by Mullaly was the
necessary consequence of Ms Andruska's decision that ASADA
would use the AFL's powers of compulsion: the only way in which
ASADA could use the AFL powers to compel attendance before an
ASADA investigator was for an AFL representative to be present at
the ASADA interview.
(d) ASADA decided whom to interview, in what order and when.
(Andruska considered this a matter for ASADA. 57) It did so from very
early on.
(iii) Haddad did not exercise a form of independent
judgement in relation to the interviews. He deferred to
ASADA. In one email (of 18 May 2013), he said that he
54 T 179, In 20 to 23. 55 T 180, In 10 to 21. See also T 186 at lune 22 and following. 56 T 187, In 9. 57 T 180, In 30.
11
would speak to ASADA 'and see if we even need to
pursue this interview'. 60
(e) As and when requested by ASADA, the AFL issued notices exercising
its powers to compel persons to attend for interview. (Andruska
understood this to be the case. 62)
(i) For example, on 10 February 2013, Nolan emailed
Clothier asking him to prepare a 'template letter' notifying
players and officials that they were 'required' to attend an
interview. Nolan told Clothier what the letter should
include and asked for a draft of the letter for review by
ASADA's legal team. 63 The letter he drafted is clear that
ASADA would conduct the interview; the AFL's role was
to co-ordinate the interview and to be present at it.
to, Andruska was not aware cf Nolan's request (as it was a 1/4,
matter of detail)."
(iii) A version of this letter65 was ultimately sent to each
person the AFL directed, under its Rules, to attend an
interview.
(iv) ASADA had input in relation to the letters that were
ultimately sent. For example, Kerrison emailed Haddad
on 5 March 2013 and suggested that he remove some
text and 'include player rule 1.8' so that letter "would]
have the desired effect'. 66
60
ACB.C.06.1722.
T 180, In 40. 63 ACB.C.08.2783. 64 T 179, In 30 to 33. 65 For example ACB.C,07.2288. See also Attachment 5 to ASADA's Notice to Admit dated 25
July 2014, and paragraph 61 of the Notice to Admit and paragraph 61 of EEC's Notice of Dispute dated 8 August 2014.
66 ACB.C.07.2582.
12
(v) Appendix B to the letter67 was drafted by ASADA as a
notice from ASADA requiring the interview to produce
documents to ASADA. 68
(f)
ASADA decided what questions to ask and prepared interview plans.
(i) This is borne out by all the interview plans in evidence. 69
(ii) Walker's evidence is that ASADA prepared these plans
and the AFL did not have any input in relation to them.
He did, however, provide a copy of his plan for one
interview to Haddad. 79
(iii) Andruska's evidence is that she understood this to be the
case/ 1 but she did not see any interview plans in 2013. 72
(iv) Andruska said that she did not approve the provision of
interview plans to the AFL. 73 That was another matter
that she left to others (Perdikogiannis and Simonsson 74 ).
(v) Andruska agreed that the interview plan of 15 February
2013 at ACB.C.08.2690 that was produced by the AFL on
subpoena contained confidential investigative
information. 76
(g)
ASADA sent Appendix B (which invoked the AFL's compulsive
powers) to interviewees before their interviews.
(i)
Notification was given to persons to attend to be
interviewed by ASADA in the form of an 'interview pack' 76
67 ACB.A.02.0805. 68 ACB.C.07.2244 and the attachment at ACB.C.07.2245; see also Kate Corkery's email to
Clothier, cc Nolan dated 12 February 2013 ASA.002.0499 69 For example, see Nolan's email to Haddad, VVhittock and Clothier dated 28 May 2013
(ACB.C.06.1726). 70 Walker Affidavit, at paragraphs 43 to 44 (ACB.A.02.0513).
71 T 180, In 43. 72 T 181,1n 11 to 12. 73 T 181, In 18. 74 T 181, In 21 to 29. 75 T 182, In 40 to T 183, In 5. 76 Walker Affidavit, at paragraphs 18 to 19 (for player interviews) and at [29] (for support staff
interviews) (ACB.A.02.0513). Annexure AW-2 (ACB.A.02.0564).
13
for the lASADA] and [AFL] investigation'. 77 The
substance of the information contained in the pack (ie.
that the interviewee was 'obliged to cooperate under the
AFL Player Rules and [that they had] obligations under
the Commonwealth Criminal Code') was conveyed at the
commencement of each interview. 78
(h) ASADA substantively conducted the interviews, with ASADA asking
the vast majority of questions and AFL personnel asking only
occasional questions.
Those questions were usually asked after the completion
of ASADA's questioning. 79
(ii) Andruska was aware (in February 2013) that the
interview would be conducted largely by an ASADA
investigator. 80
ASADA directed and controlled the gathering of other intelligence,
particularly by:
directing Dloitte as to the search terms it shou/d use;
(i) So, on 8 February 2013, Nolan
presented a document which
included key words to assist Deloitte in its examination of
EFC materia1. 81
77
See page 1 of the Annexure; see also EX XC I. 78
Walker Affidavit, at paragraph 21 (ACB.A.02.0513). 79
Walker Affidavit, at paragraph 21 (ACB.A.02.0513). 80
T 180, In 7. 81
See also the Walker Affidavit, at paragraph 39 (ACB.A.02.0513).
14
(iii) Walker's evidence is that he had `direct contact' with the Deloitte team and that ASADA investigators `were able to
contact them to make requests for further searches
without reference to the AFL '. 85
(iv) giving directions as to whose emails, files or telephones should be searched and what analytical tasks- should be undertaken. For example:
That request was made `because
ASADA at that time had no power of its own to obtain
information'. 89
(viii) Other
Walker Affidavit, at pargaphs 40 to 41 (ACB.A.02.0513).
Walker Affidavit, at paragraph 61 (ACB.A.02.0513).
Walker Affidavit, at paragraph 59 (ACB.A.02.0513). See also the email from Nolan to Clothier dated 6 February 2013 ACB.C.08.2815).
raph 42 (ACB.A.02.0513).
15
(k) giving directions to the AFL, which the AFL duly complied with. In
giving directions, ASADA's investigators were cognisant of the
limitations upon ASADA's powers. 93 For example:
(I)
At the request of the ASADA investigators, the AFL used its
compulsive powers to require production of physical evidence,
documents, computers and phones. That 'evidence' was provided to
ASADA. 96 For example:
(ii) On 29 July 2013, Haddad provided Nolan and Walker
with a summary of Deloitte's work in the form of a
document titled 'Data Summary for Report'. That
document refers to the powers that the AFL relied upon in
relation to the work performed by Deloitte. 98
ACB.C.05.1246 and ACB.C.05.1247 (attached document).
99
16
(m) ASADA passed the information it gathered, including interview
transcripts, to the AFL to be stored on the AFL's data base. 99 without
any restrictions as to its use. 1°° For example:
(ii) ASADA recorded each interview it attended and provided
the AFL with transcripts of recordings of interviews that it
had obtained. 103
(iii) Andruska's evidence was that, as at February 2013, she
understood Nolan to be conducting the investigation on
the basis that there was an 'open sharing of information'
with the AFL. 104 However, she did not approve the
provision by ASADA to the AFL of investigative
information (transcripts of interview aside). Again, that
was a matter that she left to others." 5
(iv) As to the transcripts, she became aware that they were
being provided to the AFL but made no decision to
approve this before it commenced.
(n) The information that ASADA provided to the AFL included information
obtained by ASADA which was not otherwise available to the AFL. 106
Walker Affidavit, at paragraph 23 (ACB.A.02.0513). 100 See Andruska's evidence commencing at T 156.
See ASADA's Notice to Admit dated 25 July 2014 (at paragraph 65) and EEC's Notice of Dispute. See also the Walker Affidavit, at paragraph 23.
104 T184, In 15 to 21. 105 T 185, In 24 to 29. 106 Walker Affidavit, at paragraphs 4 to 62 (ACB.A.02.0513).
17
(i)
For example, ASADA provided the AFL with most, if not
all, of the transcripts of 16 interviews that ASADA had
conducted by itself. Further, ASADA provided the AFL
with forensic evidence in the form of data from a mobile
telephone and with what Walker describes as the
'Mexican information'.
15 At paragraph [78] of their opening submissions, the Applicants submitted that,
prior to 8 February 2013, the AFL issued a notice to EFC authorising Deloittes
to obtained information from EEC's servers pursuant to exercise of the AFL's
compulsive powers. ASADA take issue with that statement. In relation to that
matter, the Applicants submit as follows:
(b) Deloittes obtained information over the course of the investigation.
(c) There is no question that much of that information was ohtained by
exercise of the AFL's compulsive powers (eg, the powers were used
to obtain the mobile phone of interviewees 108 ).
(d) The available evidence indicates that the AFL did use its compulsory
powers to make, not only its subsequent collections, but also its initial
collections:
(ii) On 29 July 2013, Haddad of the AFL emailed Nolan,
Walker and Kerrison and attached a document titled
"DataSummary for Report.docx". 109 In the AFL's own
document, sent to ASADA (apparently for inclusion in the
interim report), the AFL referred to rule 1.5A of the Player
Rules (which gives the AFL power to compel production
of documents, records, articles or things and said that
I :
EFC.001.021241; ASA.0006.2292 (email and letter demand for mobile phone). Note also Hird's evidence about being required to produce his mobile phone. ASA.0006.0966 (ACB.C.05.1246).
109
18
"The AFL by virtue of the above sections contained within
the AFL Player Rules commissioned Deloitte to attend at
the Essendon Football Club and examine and image all
electronic data stored within the club's computer network,
namely email and other files". 11°
(iii) In his email of 30 July 2013, 111 Mr Nolan noted that the
AFL had "exercised its powers to secure" the following
information:
(A) Six mobile telephones;
(B) Four server based systems;
(C) Backup data from the exchange email system;
(D) Four laptop computer systems;
(E) One external hard disk drive;
(F) A financial information database.
(iv) ASADA's own log contains an entry by Nolan of ASADA
at 8 February at 6.32pm referriny to the various items that
Deloitte had "seized". 112 The language of seizure is
inconsistent with the suggestion of voluntary provision.
(v) on 25 March 2013 Robson emailed Simonsson, cc
Clothier and referred, inter alia, to the "visit by Deloitte
forensic directed by the AFL". 113
16. As the above material shows, the AFL (which was the entity with the
compulsory powers and the entity which commissioned Deloittes to conduct
the initial server imaging) itself considered that the compulsory powers had
been used to conduct the imaging of EFC's computer system. In any event,
there was no question but that the AFL had a contractual power it could
exercise against EFC to seize computer and mobile phone records. Any
resistance would have been futile and would have served only to antagonise
110 ASA.0006.0967 (ACB.05.1247) (emphasis added). 111 ACB.C.05.1240. 112 ASA.0014.0010. (ACB.B.03.0270). 113 ASA.0014.0227/ASA.0002.25261EFC.001.021114.
19
ASADA and the AFL to no end. Accordingly, there is no distinction in this case
between EFC handing over material without a notice of demand from the AFL
(if that is what happened) and doing so pursuant to a specific compulsive
notice.
17 The CEO's continued attempt to characterise information as having been
given to ASADA by the AFL (eg Opening, paragraph 64) is not founded in the
reality of the way in which the joint investigation was conducted.
(e) What the CEO ignores is that the AFL personnel did not conduct
interviews themselves (whether or not in the presence of ASADA) and
then provide that information to ASADA.
(f) Rather, it is common ground 114 that ASADA investigators asked "the
vast majority of the questions" at each interview. The information
obtained from the interviews
was information obtained by
ASADA, using the AFL's compulsive powers. It is not information that
was obtained by the AFL using its own powers, and then provided to
ASADA.
ASADA knew at various times that there were doubts as to the legality
of the joint investigation and the provision of an interim report to the
AFL
11.111As early as 8 February 2013, ASADA knew that there were doubts as to the
legality of the joint investigation.
114 See the Respondent's Notice to Admit, para 73.
20
18 No further evidence explains how this issue was 'rectified' or why it was
concluded that it was not open to the AFL to delegate its information-
gathering powers to ASADA. The joint interview process just went ahead
because it was essential if ASADA was to use the AFL's compulsive powers
as Andruska agreed and determined in the discussion with the AFL on
1 February.
19 Between March and August 2013, the legal representatives for various parties
objected that the joint investigation was unlawful:
(a) See EFC's & Hird's opening submissions at paragraphs 102-110,
171-173 and 179-186.
(b) Mr Chris Pollard, a solicitor acting for several EFC personnel, raised
an issue with the legality of the joint investigation as early as 1 March
2013 in a letter to the AFL. 117
Kerrison's email exchange with
Haddad on 1 March (ACB.C.07.2594) shows that he knew that the
AFL intended to use the interview information to support AFL
disciplinary charges.
ACB.C.07.2589.
21
(d) Appudurai followed the issue up the next day, in an email to Walker
and Kerrison. 12° Appudurai did not doubt ASADA's power to (lawfully)
investigate the matter but queried the 'status' of the AFL and its code.
(e) Walker did not immediately respond to the substance of Appudurai's
email and, on 8 March 2013. 121 Appudurai again raised the issue. He
stated, in an email to Walker, that Walker's response was 'critical to
the resolution of the fundamental issue re the status of the (/oint)
investigation'.
(f) By 13 March 2013, ASADA had not responded to the substantive
issue raised in Appudurai's original email. 122 That led him to write
directly to Andruska on 4 April 2014. 123
(g) Andruska's response did not arrive until 15 April 2013, over a month
after Appudurai's initial email. In this period, ASADA had no qualms
about relying upon the AFL's powers over players and support staff.
ASADA's response came in the form of an unresponsive letter from
Andruska. 124 That letter relied, by express reference, upon previous
AFL advice as to its entitlement to conduct the investigation. 125
(h) In this intervening period, Appudurai told an AFL investigator to `butt
out' of an interview that was then taking place and that `the
investigation was not kosher', and he was only going to deal with
ASADA and not the AFL. 126 The AFL's log records that Appudurai
was 'unrepentant' at the interview and 'directed his conversations to a
closed door meeting with the ASADA investigators' rather than to the
AFL and ASADA jointly. 127
(i) The transcript of Appudurai's objection during the interview was
circulated between the AFL and ASADA together with a draft letter
from the AFL to Appudurai (ASA.0002.5147). It appears that, on
120 ACB.C.07.2489. 121 ACB.C.07.2487. 122 ACB.C.07.2487. 123 ACB.C.07.2331. 124 ACB.C.07.2278. 126 See ACB.C,07.2589 (1 March 2013 letter). See also Exhibit E3 (26 March 2013 letter). 126 ACB.C.03.0217. 127 ACB.C.03.0217.
22
15 March, the AFL wrote to Appudurai threatening that the objection
he raised "may be considered as a obstructing and hindering the
interview to the prejudice of his clients (ACB.C.07.2480).
(j) On 22 March 2013, in a player interview at the AFL Players'
Association, objection was again taken to the legality of the joint
investigation. Nolan responded to the 'objection' by noting it and
referring to a 'similar challenge' that had been resolved by
agreement. 128
(k) Hird's counsel, Tony Nolan QC, raised an issue as to the nature of the
joint investigation at Hird's interview.
(I) As to the work product of the joint investigation, the EFC's then
solicitor, 129 Tony . Hargreaves, wrote to ASADA on 24 June 2013 139
querying the provision of any report to the AFL and, on 31 July 2013,
expressed the view that it could not legally provide the interim report
to the AFL. 131 Legal advice provided to ASADA on or around 5 July
2013 records the fact that the EFC had 'queried ASADA's ability to
provide [the interim] report to the AFL under clause 4.21 of the NAD
scheme... 432
20 In early August 2013, solicitors for the EFC, Hird and players took issue with
the interim report, in particular its scope and the apparent disclosure, by
ASADA, of confidential NAD scheme information to the AFL. For example:
128 ACB.C.07.2465. 129 As to the fact that Hargreaves was then acting for EFC, see the 31 July 2013 letter at
ACB.C.05.1233. 130 ACB,C.06.1536 131 ACB.C.05.1233. 132 ACB.C.06.1485
23
21 On or about 13 August 2013, Demetriou publicly stated that he was
considering releasing the interim report publicly. 137
IV. The Respondent's case
22 The CEO contends that ASADA is authorised to:
(a) conduct joint investigations with sporting administration bodies and to
use their compulsory powers in the course of those investigations;
and
(b) to investigate (whether by itself or jointly with the AFL)
"governance/management practices", not merely as an incident of
investigating potential anti-doping rule violations.
23 The Respondent advances a number of propositions in support of that case —
but each of them is wrong:
(a) The CEO contends that, in order for the Court to find that the
ASADA/AFL joint investigation was ultra vires, the Court would need
to be satisfied that the governing legislation contained an implied
prohibition on the conduct of a joint investigation. That is wrong.
ASADA has only the powers conferred on it; the issue is whether the
legislation impliedly permits a joint investigation. It is ASADA that
contends for an implication to that effect.
(b) The CEO suggests that the various international instruments
executed by Australia either authorise joint investigations or extend
his, and ASADA's, functions and powers so that ASADA can provide
investigative information to a sporting administration body for the
Andruska Affidavit, at paragraph 65 (ACB.A.02.0575). Annexure AA-20 (ACB.A.02.0647).
24
purpose of arming that body with sufficient information to take
disciplinary proceedings against a sporting club or support staff.
There is nothing to support that proposition.
(c) It is one thing for ASADA.to conduct an investigation into anti-doping
violations, which incidentally enquires into governance issues at a
sporting organisation that is the subject of the investigation. It is
another thing altogether to use that investigative information in a
manner which is disconnected from ASADA's own investigation by
supplying that information to a sporting administration body for the
purpose of that body bringing disciplinary proceedings against a club
or support staff on governance grounds (as distinct from grounds that
require the proof of any anti-doping violations).
(d) The CEO and ASADA have only the powers granted to them by the
governing legislation, which legislation sets out the terms and defines
the manner in which the Commonwealth Parliament chose to
implement Australia's international obligations. The CEO's
construction of the governing legislation is wrong in its reliance on the
international instruments.
(e) Whereas natural persons are presumed to be permitted to do
anything which the law does not prohibit, the same is not true of
public bodies; they have only the powers granted to them. This basic
distinction was referred to by Professor Sampford in an article, "Law,
Institutions and the Public/Private Divide": 138
There are different "closure rules" for public and private law. Such closure rules determine what should be done if there is no appropriate rule to cover a case. In public law the rule is "what is not authorised is not permitted" and in private law it is that "what is not prohibited is permitted"
This is precisely the reason why statutes governing the operations of
public bodies typically list the functions and powers of the body or
office-holder (as did the ASADA Act). The Respondent's contention
that it is necessary to find a prohibition on the conduct of a joint
(1991) 20 Federal Law Review 185 at 201; see also Williams v Commonwealth (2012) 248 CLR 156.
25
investigation proceeds from an incorrect premise, namely that ASADA
was permitted to do anything that it was not prohibited from doing.
(0
The CEO suggests that the fact that failures in governance
management or recruitment may be connected with doping violations
justifies ASADA investigating those matters and disclosing information
to the AFL to enable it to take disciplinary action. The CEO's
submission is founded on an incorrect construction of the legislation,
which mistakes the integers which must be connected under cl 4.21 of
the NAD Scheme.
(g) The question that had to be addressed under cl 4.21(2) before
ASADA could release any investigative information to the AFL was
whether the disclosure of that information to the AFL was for the
purposes of s 13(1)(g), that is to say the CEO had to be satisfied that
the particular disclosure was "for the purposes of, or in connection
with ASADA's investigation of possible violations of its anti-doping
rules as set out in the NAD Scheme. To argue that there is a factual
connection between failures in governance, management or
recruitment on the one hand and ASADA's investigation into possible
violations of its anti-doping rules addresses the wrong question
entirely.
(h) The CEO seeks to characterise the AFL's Player Rules as part of the
sporting administration body rules adopted by it and, on that basis
bring them within ASADA's remit. The CEO's construction of the
legislation is wrong. The sporting administration body rules are those
set out in cl 2.04 of the NAD Scheme and nothing else. ASADA has a
general function under s 15 of the ASADA Act of monitoring the
sporting body's compliance with those rules. The CEO is wrong to
rely on s 15(1)(a)(ii) and cl 2.04 of the NAD Scheme as establishing a
scheme conferring power on ASADA to investigate disciplinary
matters.
24 These matters are considered further below.
26
V. Statutory power to conduct a joint investigation must be positively found, not negatively excluded
25 The CEO contends (Opening, paragraph 60) that the Applicants contend for a
"negative implication" that ASADA had no power to conduct a joint
investigation.
26 Both ASADA and the office of the CEO are creatures of statute. They have
only the powers that are expressly , and impliedly conferred on them. The
CEO's contention that ASADA can do anything in the absence of an implied
limitation on its power is ill-founded and wrong in law.
27 As Isaacs J said in Australian Boot Trade Employees' Federation v Whybrow
& Co: 139
It is not open to the grantee of the power actually bestowed to add to its efficacy, as it is called, by some further means outside the limits of the power conferred, for the purpose of more effectively coping with the evils intended to be met. ... The authority must be taken as it is created, taken to the full, but not exceeded. In other words, in the absence of express statement to the contrary, you may complement, but you may not supplement, a granted power.
28 Most importantly, there can be no unfettered power in a statutory authority of
the nature of ASADA, or in an official such as the CEO: "... the notion of
'unbridled discretion' has no place in the Australian universe of discourse. 1040
This is particularly so when the statutory authority has the power to make a
decision that has punitive-type consequences, as in this case. To require a
professional athlete to show cause why he or she should not be referred to
the Anti-Doping Rule Violation Panel is to exercise a power of the utmost
seriousness for the athlete and those associated directly with the athlete's
possible or potential violation.
29 Furthermore, it was the purpose of the joint investigation in this case for
ASADA (a government entity) to side step the limitations on its own powers by
using the private contractual powers of the AFL vis a vis the players, support
staff and club. Moreover, by so doing it intended to, and did, circumvent the
common law right to silence of the individuals involved; a right not abrogated
139 (1910) 11 CLR 311 at 338. 140 Wotton v Queensland (2012) 246 CLR 1 at [10].
27
in the empowering legislation. It is an important principle that Acts be
construed where construction choices are open so as not to encroach upon
common law rights and freedoms. 141
30 In that context, the legislative scheme must be read narrowly in favour of
protecting the rights of the individuals and against unfettered powers for
ASADA. Legislation is presumed not to abrogate a fundamental right, freedom
or immunity other than by express or unambiguous language. 142
31 The suggestion (Opening, paragraph 60.2) that Parliament might have been
expected expressly to prohibit joint investigations overlooks many things.
(a) First, the legislative regime expressly records Parliament's positive
intention to establish ASADA as an independent investigative body, to
which independent investigator sporting administration bodies are
required to refer 143 all potential breaches of the anti-doping rules for
investigation. The obligation on sporting administration bodies to
cooperate l " with an investigation by ASADA only reinforces that
ASADA is the investigator (to whom cooperation must be extended),
not the sporting administration body.
(b) Secondly, it is inconsistent with the scheme of the Act and the
detailed provisions imposing strict confidentiality obligations on
various classes of information. The establishment of a joint
investigation would necessarily mean that ASADA, as the guardian of
confidential investigative information, would lose all control over its
release and use by the other investigating party.
32 As the Respondent himself points out in opening (Opening, paragraph 43),
that, in delivering his second reading speech in support of the original Bill, the
Minister stated that the NAD scheme would provide for sporting organisations
to "[refer] violations of the scheme to ASADA" and "[assist] ASADA in the
course of its investigations".
141 Evans v State of NSW (2008) 168 FCR 576. 142 Coco v the Queen (1994) 179 CLR 427; Evans v State of NSW (2008) 168 FCR 576. 143 NAD Scheme cl 2.04(d), (i), 144 NAD Scheme cl 2.04(e), (0, (j).
28
33 The Respondent's reliance on Pacific Coal; Ex parte CFMEU (2000) 203 CLR
346 (Opening, paragraph 65) is inapt for the same reasons. The relevant
enquiry here is not whether Parliament might do indirectly what it cannot do
directly (and so, in some cases, avoid a direct prohibition), but whether
Parliament has in fact given ASADA the power to conduct a joint enquiry with
the AFL, utilising the AFL's compulsory powers, and to provide the AFL with
simultaneous access to interviews and other investigative information,
whether from the outset or by a subsequent report, so as to arm the AFL with
the material to lay disciplinary charges for breach of the AFL rules.
VI. There is no express or implied power to investigate jointly: ASADA is
the independent investigator of possible doping violations
34 The ASADA Act establishes ASADA as an investigative body that is to
operate independently of government and sporting administration bodies, and
sets out strict protections for those who provide evidence and other
information to ASADA as the investigator: EFC & Hircl opening submissions,
paragraphs 214-216.
35 The scheme of the Act is that possible violations of the anti-doping rules are
to be investigated by ASADA, to the exclusion of any investigation of those
violations by a sporting administration body such as the AFL.
36 Thus, under clause 2.04, the sporting administration body must "(i) submit to
the operations of ASADA" and "(j) refer all instances of possible of anti-doping
rule violations to ASADA for investigation and cooperate with any
investigation, as required."
37 ASADA can request information from a sporting administration body to assist
its investigation. In that event, the sporting administration body is required to
cooperate by providing ASADA with the specified information and ASADA is
authorised to use that information: clauses 1.03(2) and 2.04(d), (e), (f) and (j)
(clause 2.04 is directly supported by s 15(1) and s 15(2)(b) and (c) of the Act).
38 The fact that ASADA can request information from a sporting administration
body, such as the AFL, does not provide any authority for the AFL to act as a
29
joint investigator and to obtain access to all of the investigation information as
and when it is obtained by ASADA.
39 The CEO relies heavily on extraneous material concerning the 2013
amendments to the ASADA Act (Opening, paragraphs 51-59). Far from
assisting the CEO's case, that material points to the very absence of the
powers that the CEO contends he and ASADA had prior to those
amendments. In particular, senior counsel for the CEO relied heavily on the
statements of the Minister in his Second Reading Speech in which the
Minister said that he would ask national sporting organisations to amend their
codes of conduct so that those they control must contractually cooperate with
an investigation by ASADA (Opening, paragraph 54). This statement refers
to possible future action, and had no relevance or application in 2013 to the
AFL's then rules. The Minister's statement only reinforces that the
cooperative regime the CEO contends for was introduced by the 2013
amendments and did not previously exist.
40 The CEO's Opening Written Submissions go on in paragraph 56 to refer to a
statement by one member of a Senate committee on 1 March 2013, arguing
that ASADA does not need compulsive powers when players already have
obligations under their existing contracts. There is no basis for contending
that an argument made by one member of the Senate explains (as the CEO
contends) Parliament's decision not to abrogate the privilege against self-
incrimination in the 2013 amendments. The inescapable fact is that ASADA
had no compulsive powers prior to 1 August 2013 and nor did the AFL have
any contractual powers that compelled players or club staff to cooperate with
an investigation being undertaken by ASADA by itself in the manner
contemplated by the legislation. ASADA had no power at any point, whether
before or after 1 August, to abrogate or deny by any means an interviewee's
privilege against self-incrimination.
VII. ASADA's investigatory role is confined to investigating anti-doping rule
violations, and not disciplinary matters such as "bringing the game
into disrepute"
41 ASADA's functions are concerned with:
30
(a) the detection and prosecution of anti-doping rule violations — s 13(1),
s 21(1)(a)(b) and (k), Regulation 5, NAD Scheme dl 1.03(2),2.O1,
3.27, 4.07A-4.16, and 4.17 to 4.21; and
(b) more general machinery, such as the monitoring of sporting
administration bodies' compliance with anti-doping policies and
procedures and general educational functions — ss 15, 21(1)(c)-(ja),
NAD Scheme cl 1.02(1)(a)-(c).
42 It is not a function of ASADA to investigate, or assist a sporting administration
body to investigate, disciplinary matters per se, such as failures in
management systems at a sporting club, including in its supervision of
employees.
(a) In this case, EFC and Hird were charged with breaches of cl 1.6 of the
AFL Player Rules for "conduct unbecoming or likely to prejudice the
interests or reputation of the Australian Football League or to bring
the game of football into disrepute". 145
(b) The Statement of Grounds dealt with matters such as the failure to
conduct background checks on employee3, disregarding standard
practices of the human resources department in employing Dank and
Robinson, and deficiencies in record keeping systems.
43 In relation to managerial matters that foster or discourage environments in
which anti-doping rule violations may occur, ASADA's functions are confined
to "supporting" and "encouraging" the development of initiatives, programs
and procedures (s 21(1)(e) and (f), NAD Scheme cl 1.02). There is no power
to "investigate" disciplinary or managerial matters as such. The only
investigative power the CEO has is to investigate potential violations of the
anti-doping rules (s 13)(1)(f)). Governance and management failures might
be considered incidentally by ASADA in the course of its investigation of
potential anti-doping violations, but the fact that such matters may arise
incidentally does not authorise the CEO to provide investigative information
about those matters to a sporting administration body to enable the sporting
145
EFC Charges ACB.A.02.0475 (Ex XC-28 to Campbell IV).
31
administration body to bring disciplinary proceedings for managerial failings that do not require proof of any anti-doping violation.
44 The CEO attempts to bring disciplinary matters within ASADA's remit by
characterising the AFL Player Rules as forming part of the "sporting
administration body rules" for the purposes of s 15(1)(a)(b).
VI11. International conventions do not augment statutory powers conferred on ASADA
45 The CEO relies heavily on portions of three international conventions
(Opening, paragraphs 16-41, 60-61) to support his arguments that ASADA:
(a) has the power to conduct joint investigations; and
(b) the proper subject matter of investigations by ASADA extends to
matters of governance that may have some peripheral connection
with the potential for doping violations to occur, whether or not any
such violations have occurred.
46 The CEO's submission seeks to raise the international conventions above the
legislation, by which the Commonwealth Parliament implemented them. That
is not permissible. Outside of any enabling reference in ASADA's governing
legislation, at most, the Conventions may be referred to:
(a) at common law146 to resolve ambiguity in the words of the legislation;
Or
(b) under s 15AB of the Acts Interpretation Act 1901 (Cth) to confirm that
the meaning of a provision is the ordinary meaning or to determine
the meaning when the provision is ambiguous or obscure, or the
ordinary meaning would lead to a result which is manifestly absurd or
unreasonable.
47 In this case, the words of the governing legislation are not relevantly
ambiguous. The CEO's recourse to the Conventions to supplement or expand
146 Eg Yager v R (1977) 139 CLR 28 at 43-44 (Mason J). See Pearce and Geddes Statutory Interpretation in Australia (7th ed) [3.13].
32
the governing legislation is completely wrong-headed. Power for the actions of
ASADA must reside in the governing legislation. 147
48 Nor do any of the references to the international conventions within the
governing legislation (eg NAD Scheme cl 1.03B, cl 2.04(a)) function to confer
powers or identify subject matter for ASADA's investigative functions. Clause
2.04(a) merely provides that one "sporting administration body rule" is that a
sporting administration body must have policies and practices that "comply
with (i) the mandatory provisions of the [VVADAI Code and the International
Standards" and the NAD Scheme. However, ASADA's monitoring role
(cl 2.03(2)(a)) in respect of that matter only extends to ensuring that the
sporting administration body does indeed have policies and practices that do comply with those international instruments. That provides no basis at all for
the CEO's submission that ASADA has power to enquire whether a football
club's managerial practices and policies (whether about doping or anything
else) brought the game into disrepute.
49 In any event, generalised reference to statements in international instruments
regarding cooperation — such as those in the WADA Code relied on by the
CEO — are of no moment and do not confer any authority to conduct a joint
investigation. Parliament and the Governor-General in Council have
determined the balance between the functions and role of ASADA, and the
role of ASADA sporting administration bodies in relation to anti-doping
violations. ASADA is to be the sole investigator, and an independent one at
that. Parliament and the Governor-General in Council have specified the
matters in respect of which sporting administration bodies are required to
cooperate with an ASADA investigation into anti-doping violations by
prescribing the content of sporting administration body rules.
50 Those matters are set out in cl 2.04 of the NAD Scheme. Reference to those
matters shows that sporting administration bodies are required to provide
various categories of information to ASADA and cooperate with ASADA's
investigations. The submission that there is no clear distinction between, on
the one hand, ASADA's power to investigate, and on the other its authority to
147 Saeed v Minister for Immigration and Citizenship f_20101 HCA 23; (2010) 241 CLR 252 at 264- 265 r3 11.
33
request, and then use, information from a sporting administration body (with
which request the sporting administration body must cooperate: NAD Scheme
cl 1.03) is specious. ASADA did not ask the AFL to assist it by providing
discrete pieces of information. It entered into a joint investigation with the AFL,
the defining features of which were that ASADA co-opted the AFL's
compulsive powers, the AFL functioned as a willing secretariat, and the price
ASADA agreed to pay was that it provided the AFL with immediate access to
investigative information that it knew the AFL planned to use for its own
disciplinary purposes.
IX. The CEO's erroneous approach to the governing legislation
51 In his written opening (at paragraphs 72-83), the CEO mounts an elaborate
argument to the effect that the AFL Rules and Regulations formed part of the
AFL's "anti-doping policies and practices" for the purposes of cl 2.04(a) of the
NAD Scheme, triggering reporting obligations on the AFL and monitoring
functions on the part of ASADA. In his opening, Senior counsel for the CEO
argued that the monitoring functions conferred by cl 2.03 extend to the AFL
Player Rules and Regulations, not just the "dumbed down" Anti-Doping Code.
52 A number of points may be made:
(a) As noted above, ASADA's monitoring role (cl 2.04(2)(a)) is limited to
monitoring the AFL's compliance with obligations imposed on the AFL
by cl 2.04. The only "sporting administration body rules" in respect of
which ASADA has any remit are those actually set out in cl 2.04 of the
NAD Scheme, not whatever rules the AFL may have seen fit to adopt
regarding bringing the game into disrepute, or indeed its anti-doping
code.
(b) ASADA's monitoring role is to be contrasted with its investigative role,
wherein the CEO is charged (s 13(1)(f) of the ASADA Act) with
investigating possible breaches of the "anti-doping rules". Those rules
are defined to be those set out in cl 2.01 of the NAD Scheme, which
sets out various "presence" and "non-presence" rules. There is
nothing in the anti-doping rules about managerial systems or
practices.
34
X. The power to use information obtained from sporting administration bodies does not suggest a power to conduct joint investigations
53 Contrary to the CEO's submission (Opening paragraph 68), cl 1.03(2) of the
NAD Scheme does not show a Parliamentary intention that sporting
administration bodies may act as co-investigators. That provision merely
authorises ASADA to use information provided by a sporting body (which may
include information ASADA requests from that body). However, the nature of
the information that may so be provided and used must be read in light of the
whole of the NAD Scheme, and particularly cl 2.04, which sets out the nature
of the information to be provided to ASADA by a sporting administration body.
54 There is nothing in the potential for ASADA to ask a sporting administration
body to provide some information (eg athlete whereabouts) that gives rise to a
power to conduct a joint investigation.
55 In any event, it is wrong to characterise the information obtained through the
joint investigation as information obtained from the AFL. As has been noted
above, ASADA had carriage of the investigation including, crucially, the
conduct of the interviews. Information obtained by ASADA investigators
cannot be characterised as having been provided "by the AFL" for any
purpose. (It is convenient to note here that, for the same reasons, the CEO's
submission that he could simply "re-acquire" the information from the AFL is
also misconceived. ASADA's provision of illegally obtained information to the
AFL does not render the information "the AFL's information" so as to permit its
reacquisition by ASADA under cl 1.03.)
Xl. The statutory confidentiality obligations reinforce that there is no
power to conduct a joint investigation
56 The ASADA Act makes it very clear that ASADA had no power, express or
implied, to establish and conduct a joint investigation with the AFL under
which the AFL immediately and simultaneously obtained access to all of the
investigation information gathered by ASADA:
(a) The Act charges the CEO, assisted by ASADA staff, with the task of
investigating anti-doping violations (ss 13(1)(f), 20B and 24L);
35
(b) The Act limits the range of persons who can assist the CEO in
discharging his/her functions to ASADA staff and other
Commonwealth employees. If the CEO obtains assistance from such
persons they become "entrusted persons" for the purposes of s 71
(see ss 20B, 24M, 24N and ss 69-71);
(c) The Act imposes strict confidentiality obligations on the group of
persons legitimately engaged in the investigation of anti-doping rule
violations (ss 69-71):
(i) section 71 makes it a criminal offence for an entrusted
person to disclose NAD scheme personal information;
(ii) section 69 defines "entrusted persons" in a way that
captures the CEO and those authorised to assist the
CEO in the discharge of his/her investigative functions
(ASADA staff and Commonwealth staff whose services
are made available under s 24M)
(iii) the only relevant exceptions are:
(A) disclosure "for the purposes of tnis Act" (s 71(2)(a));
(B) disclosure "for the purposes of the NAD scheme"
(s 71(2)(b)); and
(C) disclosure as prescribed by the regulations (s 71(2)(g)).
(d) Strict statutory limits apply to the disclosure of non-entry information
under clause 4.21 of the NAD scheme. Under clause 4.21, the CEO
must first be satisfied that the information is non-entry information as
defined, and that it should be disclosed to a sporting body "for the
purposes of, or in connection with" ASADA's investigation into
possible anti-doping violations: see EFC's & Hird's opening
submissions at paragraphs 234-239.
(e) Clause 4.21 is incapable of applying to, or authorising, the conduct of
a joint investigation between ASADA and the AFL by which the AFL
would obtain access to investigation information as and when ASADA
obtained it. The clause requires a deliberative consideration by the
36
CEO of the question whether the disclosure of a particular piece of
information would be "for the purposes of, or in connection with" the
specified subject, namely ASADA's investigation of doping violations
or, after 1 August, ASADA's administration of the NAD Scheme.
57 Strict statutory limits apply to the CEO's disclosure of every other category of
investigative information that the CEO obtains:
(a) strict limits apply to the disclosure of entry information under clauses
4.17, 4.18 and 4.19 of the NAD scheme;
(b) regulations 5 and 5A permit ASADA to disclose testing results to
sporting administration bodies for drug testing programs, but only on
condition that the information is not to be used or disclosed by the
sporting administration body for other purposes; and
(c) strict limits apply to the disclosure of customs information under s 68.
(d) All these provisions are inconsistent with any contention that the AFL
could act as a joint investigator and obtain immediate and
simultaneous access to non-entry investigation information. That
information is likely to be the most sensitive of all the categories of
information obtained by ASADA.
58 In enacting this detailed confidentiality regime, Parliament recognised that
investigation information is potentially very damaging and its disclosure must
be limited to those entrusted persons who are authorised to participate in the
investigation. Beyond that, identified information can only be disclosed when
ASADA assesses that it is necessary to do so and the requirements of the Act
have been satisfied.
59 The Act does not contemplate that persons or entities who are not "entrusted
persons" will participate in an investigation so as to obtain the same access to
investigation information as ASADA obtains. The AFL was never an
"entrusted person".
60 If ASADA had the power to engage in a joint investigation with someone who
was not an "entrusted person", that would entirely circumvent the
confidentiality provisions in s 71 as NAD Scheme personal information could
37
be disclosed, without any restriction on its use, to persons who were not
"entrusted persons" themselves and so subject to the limitations on
disclosure. Ms Perdikogiannis made an observation to substantially this effect
on 19 August when she responded to Mr Nolan's emails asserting that,
because it was a joint investigation from the outset, the AFL was a co-owner
of the investigative information and the Interim Report (ADF 271).
XII. The interim report was provided by ASADA to the AFL to enable the
AFL to bring disciplinary proceedings against EFC and support staff
61 ASADA knew from February 2013 that the AFL was contemplating its own
disciplinary charges and sanctions against EEC and its officiars: see, for
example, exhibit AA-7, 148 amongst other documents.
62 Part of the arrangement for the joint investigation between ASADA and the
AFL was that the AFL would use information obtained from the investigation
to bring disciplinary charges against EFC and support staff under the AFL's
rules. The charges contemplated by the AFL did not depend on proof of any
anti-doping violations.
63 In April 2013, the AFL requested a report from ASADA arising out of the
investigation that it could use for its own disciplinary purposes. 149 ASADA
responded positively: see EFC's & Hird's opening submissions at paragraphs
115-123.
• Andruska agreed that she knew that the AFL wanted a report as at
April 2013. 150 She gave evidence that she understood that the report
for the AFL would be a report 'wrapping up the total investigation'. 151
• That evidence as to the nature of the 'interim report' wanted by the AFL
at that time is at odds with Clothier's email to Mullaly and Nolan (inter
alia) of 18 April 2014. In that email, Clothier refers to the AFL 'trying to
pursue disciplinary matters'.
148 ACB.A.02.0605. 149 ACB.C.07.2259. 150 T 187, In 35. 151 T 187, In 41 (and following).
38
• It is also inconsistent with Clothier's email of 26 April 2013 152 where
reference is made to potential public comment on the 'interim report' by
the AFL, and Clothier suggests that the EFC might use the report for
disciplinary action.
64 The AFL's desire for a report from ASADA that it could use to formulate
disciplinary charges against EFC and support staff was made unequivocally
clear as a result of a series of meetings and telephone conferences in the
period late May to July 2013. Some of these meetings involved ASADA's
CEO and Mr McLachlan of the AFL.
(a) On 24 May 2013, Andruska attended a meeting with Demetriou,
Clothier, the responsible minister and his media advisor. 153 She gave
evidence that this meeting was unusual but she did not have an
independent recollection of it. 154
(b) Andruska's notes of that meeting record that Demetriou 155 said 'when
ASADA provides a report it wants to provide it openly.'
(c) Andruska could not recall what she said by way of response to
Demetriou's question 'What can we give AFL by end of July?' 156
(d) On 4 June 2013, Andruska attended a meeting with AFL
representatives. 157 She conceded that that meeting proceeded on the
basis that ASADA would provide a report to the AFL for disciplinary
purposes. 158
(e) Andruska's notes of the 4 June 2013 meeting refer to the 'integrity of
the competition', damage to the brand of football, 'lack of supervision'
and `govern lancer.
(f) Andruska's evidence was that she did not, in effect, decide to provide
the AFL with a report until just before a meeting on 19 June 2013. 159
152 ACB.C.07.2214, 153 ASA.0032.0180. 154 T 191, In 45. 155 T 190, In 39. 156 1192, In 43. 157 ACB.A.02.0618. 158 T 193, In 45 to T 194, In 5. See also T 205, In 6. 159 T 201, at In 15 and following.
39
(g) At that point, she anticipated, or knew, that the interim report would be
used by the AFL for its own purposes. 166
(h) Further, she proceeded on the basis that the AFL was free to use the
'raw material' that it itself held to produce its own report if it wished to
do so. 161 Andruska did not accept that that was because the AFL had
been provided with ASADA investigative information without
restriction but there could be no other basis for her conclusion as to
the AFL's ability to use the raw materia1. 162
By 5 July 2013, Andruska knew that ASADA had made a prior
commitment to provide the AFL with an interim report for the purpose
of assisting the AFL in its consideration of what steps it should take in
relation to the EFC and/or players and staff. 163
65 ASADA agreed to provide a report to the AFL by 1 August 2013 that the AFL
could use for its own decision-making about disciplinary charges: see EFC's &
Hird's opening submissions at paragraphs 128-137.
66 Further, at the AFL's request, ASADA agreed that the report would address
matters going to management and governance at EFC so as to support
disciplinary charges against EFC, including charges that EFC had engaged in
conduct that was prejudicial to the interests to the game: see ASADA's table
of outcomes, 2:00pm 16 July 2013; 164
and Burgess' file note of his meeting with Clothier on 19 July 2013. 166
67 Knowing that the AFL intended to use material from the joint investigation for
its own, and quite separate, disciplinary purposes:
(a) ASADA established a joint investigation and permitted the AFL
access to all investigative information other than ACC information;
160 T 202, In 30; see also paragraphs 47 and 59 of her Affidavit. 161 T 204, In 2. 162 T 204, In 7 to 10. 163 T 204, In 30 to T 205, In 45. 164 ACB.C.06.1418.
Annexure TB-4 (ACB.A.02.0790).
40
(b) ASADA permitted AFL officials to review its draft investigatory report
in July 2013; 167 and
(c )
on 2 August, ASADA provided the AFL with a comprehensive report
which dealt substantially with matters of governance. 169
(i) Andruska gave evidence that, prior to doing so, she
obtained legal advice regarding the basis upon which the
report was to be provided to the AFL. 169 Until receipt of
that advice, she had been content to provide the report to
the AFL without any limitation as to its use.
(ii) By 2 August 2013, however, things had changed. Armed
with advice that was contrary to her commitment to the
AFL, Andruska sought to impose, for the first time,
limitations upon the AFL's use of the report,
(iii) She did so in a formulaic way, picking up the language of
the legislation, in her 2 August letter to Demetriou of the
AFL. 179 There is no evidence, however, that she gave
any (or any real) consideration to the basis upon which it
was being provided and, in particular, that she had
determined, in the exercise of her power, that the report
could be used, lawfully, for its planned disciplinary
proceedings.
(d) Revised Word versions of the report were provided on 7, 171 8172 and
12 173 August 2013.
68 The AFL used the Interim Report to lay charges against EFC and Hird on
13 August 2013, 174 At the time of providing the report to the AFL, Andruska
knew that the report would be used in that way. 175 There is no evidence to
167 Burgess Affidavit, at paragraphs 22 to 30 (ACB.A.02.0738). 168 ACB.A.02.0637. T 212, In 5. 169 T 212, In 32. 170 See, for example, T 213, In 40 to T 214, In 5. 171 ACB.A.02.0641. 172 ACB.A.02.0642. 173 ACB.A.02.0643. 174 CB.02.0840 (Hird) and C13.02.0472 (EFC). 175 T 218, In 18.
41
the effect that Andruska took issue with the AFL's use of the report to lay
charges until after the event, and then ineffectually and in a token way.
69 Soon after it laid the charges against EFC and Hird, the AFL published the
EFC charge sheet to the media. That charge sheet was based on information
contained in the Interim Report or otherwise derived by the AFL from its
participation in the investigation.
70 Both the solicitors for EFC and the solicitors for Hird informed ASADA that
ASADA would be acting unlawfully if it provided the Interim Report to the AFL:
see Hargreaves letters to ASADA of 24 June, 178 and 31 July 2013, 177 Elena
Perdikogiannis' email to Clothier of 5 July 2013, 178 Ashurst's letter to ASADA
of 13 and 14 August 2013179 and ASADA's subsequent letter to the AFL of 15
August 2013._ 189
71 That letter (of 15 August 2013) was the first time that ASADA raised any
objection with the AFL as to its use of the interim report for disciplinary
purposes. That objection came to nought.
XIII. ASADA's provision of information to the AFL was in breach of the confidentiality obligations
72 ASADA's provision of information to the AFL in the course of the investigation
and by the provision of the interim report, was:
(a) for an improper purpose because, ASADA had no statutory power to
enquire into disciplinary matters for the purposes of facilitating the
AFL's consideration of whether to lay charges and, if laid, the proof of
those charges;
(b) in breach of the confidentiality obligations imposed by the statutory
scheme.
73 The first point has already been dealt with. Suffice it to say at this point that
EFC and Hird accept that, in conducting an investigation into potential
violations of the anti-doping rules set out in cl 2.01 of the NAD Scheme,
176 ACB.C.06.1536. 177 ACB.C.05.1233. 178 ACB.C,06,1485. 179 Part of JAH-3 (ACB.A.02.0818). 180 ACB.A.02.0649
42
ASADA's investigation may extend to factual subject matter that might also
support the laying of disciplinary charges. However, that does not mean that
ASADA is authorised to conduct an investigation into disciplinary infractions or
conduct an anti-doping rule violation investigation (or prepare interim
investigation reports) with a view to arming a sporting administration body with
evidence with which to lay disciplinary (not anti-doping) charges. The
consequence of this is that disclosure of information both in the running of the
investigation and by provision of the interim report was for a purpose which
was not authorised by the governing legislation.
74 As to the second point, in order for a disclosure of non-entry information to be
authorised by cl 4.21, the CEO must first be satisfied that the information is
non-entry information as defined, and that it should be disclosed to a sporting
body "for the purposes of, or in connection with" ASADA's investigation into
possible anti-doping violations (s 13(1)(g)).
75 The CEO's submissions proceed on the basis of a misapprehension about
what must be connected with what in order for disclosure to be authorised.
For example, the CEO contends (Opening, paragraph 86) that "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" (see also paragraphs
97-99).
76 As is clear from this passage, the CEO impermissibly seeks to authorise
disclosure of information by pointing to a potential factual connection between
governance/management issues, on the one hand, and anti-doping rule
violations on the other hand. But that is not the connection that the statute
requires in order to authorise disclosure.
77 As is clear from s 13(1)(g), in order for disclosure to be authorised, the
necessary connection must exist between:
(a) the disclosure of information; and
(b) ASADA's investigation into breaches of the anti-doping rules (or, after
1 August 2013, the "administration of the NAD Scheme).
43
78 In short, the disclosure must be for the purpose of advancing ASADA's
investigation into anti-doping violations. Drawing a factual connection between
management/governance issues and anti-doping rule wholly misses the statutory mark.
79 The evidence establishes that there was no relevant deliberative consideration of the questions that should have been considered under
cl 4.21, either by the CEO or anyone else.
(a) In relation to events prior to 1 August, the then CEO, Ms Andruska,
never considered or approved what was involved in the establishment
and conduct of a joint investigation. Her evidence was that she did
not approve or authorise the conduct of interviews by ASADA at
which AFL personnel were present.
(b) Mr Mullaly drew attention to the absence of any power in ASADA to
conduct investigation interviews in that manner in his email of
8 February 2013 to Clothier, which was copied to Ms Perdikogiannis
and Mr Simmonsson.
(c) Nor did the CEO authorise or place any restrictions upon the open
sharing of investigative information between ASADA and the AFL that
Mr Nolan referred to in his emails of 30 July 2013 and 19 August
2013.
(d) The effect of the position adopted by ASADA during 2013, and the
case now presented by ASADA, is that such raw material could be
used by the AFL without restriction. In particular, the AFL was free to
use that raw material to prepare its own report to press disciplinary
charges against EFC and support staff for governance failures.
80 Further, the evidence given by Ms Andruska concerning the provision of the
Interim Report demonstrates that the requirements of cl 4.21 were not
properly considered or applied when ASADA provided the Interim Report to
the AFL on 2 August 2013.
44
(a) Ms Andruska knew (and had known from at least April 2013) that the
AFL planned to use the report it received to bring disciplinary charges
against EFC, Hird and EFC officials.
(b) However, by 1 August Ms Andruska felt that ASADA had committed
itself to providing the investigator's report to the AFL. Her letter of
2 August 2013 does not impose any restriction that would prevent the
AFL using the report to bring disciplinary charges. It merely uses the
formulaic words of cl 4.21 of the Scheme.
(c) About two weeks later, after the AFL had used the report to bring
disciplinary charges against EFC, Hird and EFC officials, ASADA
objected to the AFL using the report for that purpose. •But it took no
effective steps to enforce that objection.
81 It is clear that ASADA did not properly consider or apply the provisions of
cl 4.21 before the report was provide. Moreover, it is clear that the Interim
Report was not disclosed to the AFL for a purpose of, or connected with,
ASADA's investigation of doping violations, or ASADA's administration of the
NAD Scheme.
XIV. Illegality and invalidity
82 ASADA's investigation was conducted unlawfully in the following respects:
(a) ASADA did not have the power to conduct a joint investigation in the
way it did —
(i) by utilising the AFL's compulsory powers as a means of
compelling players and support staff to attend, answer
questions and hand over material;
(ii) by denying any capacity to players and support staff to
claim privilege against self-incrimination; and
(iii) by sharing ASADA's investigation information with the
AFL, much of it at the moment of the information's
receipt, as if the AFL was a joint investigator.
(b) ASADA continuously breached its confidentiality obligations under
s 71 —
45
(i )
by allowing the AFL to participate in the investigation
(most obviously, by sitting in the interview room with
ASADA, but also by receiving a regular supply of
information from the ASADA investigators) when the AFL
was not an entrusted person;
by providing the Interim Report to the AFL knowing that
the Interim Report would be used by the AFL for its own
separate disciplinary and governance purposes —
purposes that were not those of, or connected with, the
administration of NAD scheme; and
(c) ASADA acted for extraneous purposes in undertaking the
investigation — namely, for the purposes of:
(i) exploiting the AFL's powers to supply a deficiency in
ASADA's powers;
(ii) depriving those questioned of the privilege against self-
incrimination;
(iii) giving the AFL access to information collected Dy ASADA
in the investigation so that it could be used by the AFL for
its own disciplinary purposes; and
(iv) giving the AFL access to information collected by ASADA
otherwise than in accordance with the statutory regime
for divulging or communicating information;
(d) As is apparent, ASADA acted for purposes that were intertwined and
inseparable. In order to make use of the AFL's compulsive powers for
its anti-doping rule violation investigation, it had to let the AFL sit at
the interview table and thereby simultaneously acquire ASADA's
investigative information for its disciplinary purposes.
46
So, the Faustian Pact was struck. ASADA's twin
purposes (making use of the AFL's compulsory powers and making
information available to the AFL for its use for disciplinary purposes)
were both improper and extraneous to the ASADA Act and the
Regulations. They were substantial, "non-trivial" purposes 182 and
purposes which were not "harmless", "insubstantial" or
"insignificant". 183
(e) In any event, even if the correct test requires the Applicants to
demonstrate that the improper purpose was substantial in the sense
that "but for" the improper purpose, the power would not have been
exercised as it was, that test is clearly satisfied in this case. Without
the intertwined, extraneous purposes referred to above, ASADA
would not have engaged in a joint investigation with the AFL. There
would have been no reason for it to do so, and there is no evidence at
all that it would have done so.
(0
As for the Interim Report, ASADA prepared the Report at AFL's
request, allowed the AFL to review the draft report prior to 1 August,
and provided the Report to the AFL on 2 August. All of this was done
for the extraneous purpose of arming the AFL with information
collected by ASADA so it could be used by the AFL to press
disciplinary charges against EFC and its officials.
The consequences of illegality and improper purposes
83 Commonwealth authorities are required to act within the lavv, 184 within the
bounds of the powers granted them by the Commonwealth parliament. Just
as privative clauses cannot exclude the Court's jurisdiction to ensure that
statutory authorities act within the bounds of their power (otherwise there
182
R&R Fazzolari Ply Ltd v Parramatta City Council (2009) 237 CLR 603 at [55], per French CJ. 183 In their opening submissions (at paragraph 273) the Applicants referred to Lu v Minister for
Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 at 360 and Lansen v Minister for Environment and Heritage (2008) 174 FCR 14 at 40. The overlap between the case law on relevant and irrelevant considerations and the law on multiple purposes was noted and supported by the Court of Appeal in East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605 at [334], [343].
184 For example, Plaintiff S157/2002 v Commonwealth at 482-483 [5], (Gleeson CJ).
47
would be no sanction for acting in excess of power) 185 , so too must this court
be astute not to condone, whether by reference to discretionary matters or
otherwise, ASADA acting outside its statutory powers.
84 As the High Court observed in Re Refugee Review Tribunal; Ex parte Aala:
There is a jurisdictional error if the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. 186
That is this case. The CEO decided to enter into a joint investigation with the
AFL, but had no power to do so.
85 The investigation extended into failures of governance and management
within the Essendon Football Club in 2012.
(a) If this were an investigation solely by ASADA into possible anti-doping
violations, and those matters arose incidentally to the investigation of
those violations, this would not be a matter of any moment.
(b) However, the investigation was constituted and conducted as a joint
investigation with personnel from the AFL participating in all of the
interviews, receiving the transcripts of interviews, and receiving other
information gathered by ASADA in the course of the investigation.
(c) This information was made available by ASADA to the AFL knowing
that the AFL intended to use the information in order to bring
disciplinary charges against the Essendon Football Club for breaches
of AFL rules (breaches which did not depend upon any proof of anti-
doping rule violations).
(d) To provide investigative information to the AFL in those
circumstances and to provide a report to the AFL on those
governance matters that the AFL would use to lay disciplinary
charges was both beyond ASADA's power and amounted to conduct
for improper purposes.
185 Plaintiff S157/2002 v Commonwealth at 484 [10] (Gleeson CJ). 186 (2000) 204 CLR 82 at 141 [163], cited by French CJ, Gummow, Hayne, Crennan, Kiefel and
Bell 1.1 in Kirk v Industrial Court (NSW) (2009) 239 CLR 531 at 571 [66].
48
(e) As such, the case bears the relevant hallmarks of jurisdictional error,
namely the decision-maker "misapprehending the limits of its
functions and powers". 187
86 Under the scheme of the governing legislation, athletes are only to face the
prospect of having an entry made by the ADRVP if the CEO has received
"evidence or information showing a possible non-presence anti-doping rule
violation" and the CEO "following a review of the evidence or information"
"determines" that there is a possible contravention: cl 4.-07A(1). The sole
statutory purpose for the investigation is for the CEO to determine whether
there is evidence of a possible contravention that should be placed before the
Panel.
87 The statutory process of investigation, review, and the issue of notices to
show cause before the Panel process is akin to the statutory reference to
"decision[s]... made under this Act" which the High Court in Plaintiff S157 held
"must be read so as to refer to decisions which involve neither a failure to
exercise jurisdiction nor an excess of the jurisdiction conferred by the Act". 188
As the High Court went on to say:
This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all". 189
The process must be one which is not poisoned by jurisdictional error and if it
is, it is to be regarded in law as no valid process at all.
88 Their Honours in S157 referred to Minister for Immigration and Multicultural Affairs v Bhardwai. 19° In that case, the High Court was considering the effect
of a decision of the Tribunal dismissing an application for review in
circumstances where the Tribunal had overlooked a letter seeking a deferred
hearing date. Gaudron and Gummow JJ found that there was no reason in
principle why, absent any implied direction in the relevant Act, the general law
187 Kirk v Industrial Court (NS1/40 (2009) 239 CLR 531 at 574 [74] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
188 Plaintiff S157/2002 v Commonwealth at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
189 Their Honours there cited Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-5 [511, 618 [63] and 646-7 [152].
190 (2002) 209 CLR 597.
49
should treat administrative decisions involving jurisdictional error as binding or
having legal effect unless and until set aside. As their Honours found (and has
oft been cited): "A decision that involves jurisdictional error is a decision that
lacks legal foundation and is properly regarded, in law, as no decision at au2191
89 It follows that, if the CEO's decision to issue the Show Cause Notices is
infected with jurisdictional error (which would be the case if the court is
satisfied that ASADA acted ultra vires 192 ), that decision is, in law, "no decision
at all" and the show cause notices must be set aside. Being a nullity, such a
purported "decision" cannot be resurrected in law by reference to
discretionary factors.
90 The decision to issue show cause notices only has any status at all (and may
yet be set aside) if it is possible to discern in the governing legislation that
Parliament intended the decision to stand notwithstanding that, at general law,
it is a nullity.
(a) For example, in Plaintiff S157, the court enquired whether there was
anything in the relevant Act to show that Parliament intended provide
that decisions of the Tribunal, though reached by an unfair process,
are nevertheless valid and binding. 193
(b) So too, in this case, in considering the question of relief, the Court
may enquire whether there is any indication that Parliament intended
that ASADA be able to use information obtained through an illegal
process.
(c) The short (and only) answer is that there is no such indication. Far
from it, the scheme of the Act not only does not authorise a joint
191
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51]. The position of administrative acts may be contrasted with the position of the judicial orders of superior courts which are valid until set aside, even if made in excess of jurisdiction: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [151] (Hayne J). At most, administrative acts are presumed to be valid until challenged.
192 In Bhardwaj at [149], Hayne J characterised a decision reached by the Tribunal that was not authorised by the Act and which did not constitute performance of its duty under the Act as a jurisdictional error.
193 Plaintiff S157/2002 v Commonwealth at [37] (Gleeson CJ); Evans v State of NSW (2008) 168 FCR 576.
50
investigation (which is sufficient to establish jurisdictional error) it
impliedly prohibits it. This means relief must go. Furthermore, given
the obvious impact of the illegal investigation on the rights of
individuals if the show cause process were to continue in reliance on
the joint investigation material (the players, the coach and their
employer whose business depends on their eligibility to play), clear
words would be required to permit ASADA to maintain the illegally
obtained information. A fortiori, this must follow because the unlawful
conduct deprived those employees of the Club who appeared at the
interviews of their privilege against self-incrimination.
91 As their Honours observed in Bhardwaj, the fact that a decision made in
jurisdictional error is a nullity does not, in and of itself, prevent a decision-
maker making another, lawful, decision. 194 In this case, EFC and Hird accept
that there is nothing preventing the CEO reviewing such legally obtained
evidence as it may have (or even seeking to obtain more evidence) and
considering whether that reaches the necessary threshold to trigger the
issuing of fresh show cause notices. However, the mere potential for the CEO
to go through that process provides no basis for any refusal to set aside the
show cause notices.
92 The show cause notices were based, as ASADA has admitted, substantially
upon information obtained in the course of the joint investigation.
195 Accordingly, those notices are invalid.
194 (2002) 209 CLR 597 at 615-616 (Gaudron and GummowJJ, McHugh J agreeing). 195
The Applicants have tendered notices issued by the AFL to Players requiring their attendance at interviews (AFL.50.03.02.18, EFC.001.002233, EFC.001.002238, EFC.001.002239, EFC.001.011334, EFC.001.011335, EFC.001.011336, EFC.001.021602,
51
XV. Relief
No discretion
93 For the reasons outlined in opening, there is no reason not to make the declarations sought by the Applicants. There does not appear to be any contest on this matter.
94 The difference between the parties lies in whether consequential relief must, or ought, to be granted:
(a) in respect of the existing show cause notices; and
(b) to prevent the future use of the information obtained from the illegal joint investigation by ASADA.
95 In the first instance, the analysis of what relief is to be granted is determined by construction of the statute. In Project Blue Sky, the majority identified as "the real issue" "whether an act done in breach of [a] legislative provision is invalid" 196. The Court's language of "invalidity" does not lend itself to any notion of discretion as to the consequences of invalidity. This Court has no discretionary jurisdiction to spare ASADA's ultra vires the inevitable consequences of its having been undertaken without statutory power and for improper (unauthorised) purposes. That action is invalid for all purposes and cannot be saved. 197
96 Rather, as the majority in in Project Blue Sky stated:
EFC.001.021542, EFC.001.021543, EFC.001.021544, EFC.001.021545, EFC.001.021546, EFC.001.021547, EFC.001.021548, EFC.001.021549, EFC.001.021550, EFC.001.021551, EFC.001.021552, EFC.001 .021553, EFC.001.021555, EFC.001.021556, EFC.001.021557, EFC.001.021558, EFC.001.021559, EFC.001.021560, EFC.001.021561, EFC.001.021562, EFC.001.021563, EFC.001.021564, EFC.001.021565, EFC.001.021566, EFC.001.021567, EFC.001.021574, EFC.001.021523, EFC.001.021524, EFC.001.021525, EFC.001.021526, EFC.001.021527, EFC.001.021528, EFC.001.021362, EFC.001.021363, EFC.001.021364, EFC.001.021365, EFC.001.021366).
196 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 193) (McHugh, Gummow, Kirby and Hayne JJ).
197 See also, for example, Chelfco Ninety-Four Pty Ltd v Road Traffic Authority [1985] VR 1 at 22. There the Supreme Court held, inter alia, that the absence of a delegation meant that purported approvals and refusals of approval applications for passenger ferry services were void and of no effect.
52
A better test for determining the issue of validity is to ask whether it was a
purpose of the legislation that an act done in breach of the provision should
be invalid. 198
97 As already outlined above, a decision in excess of power is a nullity unless
the statute discloses an intention on the part of the legislature to give the
impugned decision some operation until it is set aside. Neither the ASADA Act
nor the ASADA Regulations disclose any intention that would displace the
usual consequences of jurisdictional error at common law. 199 On the contrary,
the governing legislation shows an intention on the part of Parliament to
carefully set the bounds of the tasks ASADA was to undertake, the powers it
had with which to undertake those tasks and the persons who could assist in
the discharge of those responsibilities and receive information obtained or
generated by ASADA in the course of those activities. The entire scheme of
the Act precludes any joint investigation and the disclosures it necessarily
involves to persons who are not entrusted persons.
98 All of those matters lead to one conclusion only: the governing legislation did
not authorise, and so prohibited, ASADA:
(a) engaging in a joint investigation with the AFL of the kind that ASADA
did pursue (which went far beyond merely obtaining cooperation from
a sporting administration body in the provision of discrete pieces of
information); and/or
(b) conducting an investigation with a view to providing the AFL with
material it knew the AFL intended to use in order to lay disciplinary,
not anti-doping, charges.
99 The Applicants only need to succeed on one of those matters in order to
obtain relief setting aside the show cause notices (or, more precisely,
confirming that those notices are a nullity at law).
198
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] (per McHugh, Gummow, Kirby and Hayne JJ).
199 Cf the wide-ranging public inconvenience referred to in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [97] (McHugh, Gummow, Kirby and Hayne JJ). In this case, there would be no inconvenience to members of the public who relied on the validity of ASADA's conduct. The only inconvenience would be to ASADA, which was the architect of its own illegal conduct.
53
100 Moreover, the cases speak of actions taken without statutory power being
"invalid". Invalidity is the end of the matter:
101 The suggestion from the CEO that consequential relief should not be granted
to prevent the re-use of the information obtained during the joint investigation
has no merit and is apt to lead the court into error. Any explicit or tacit
permission granted to ASADA to re-use the tainted information would rob the
Court's declarations and orders regarding the existing show cause notices of
any utility. Further, any re-use would immediately result in the commission of
further ultra vires conduct, which would be a nullity for the same reasons as
the existing show cause notices. The Court is alert to the need to fashion
orders that prevent an unnecessary multiplicity of proceedings.
102 In this case, consequential relief, as sought, should be granted to ensure that
ASADA is not permitted to retain the fruits of its illegal investigation to the
undeniable prejudice of the applicants and the 34 Players.
Even if some consequential relief is discretionary, it should issue
103 If the Court finds, contrary to the Applicants' submissions, that some or all of
the consequential relief sought by the Applicants is discretionary, that relief
should issue for the following reasons:
(a) The nature of the illegality is relevant. In this case, there was no
innocent blunder. ASADA and the AFL decided (before and
independent of any approach from EFC) to conduct a joint
investigation whereby ASADA would use the AFL's compulsory
powers and to run the legal risks they knew that involved.
Ms Andruska conceded that, and also that ASADA investigators
would be effectively running the investigation.
(b) ASADA's conduct leaves a lot to be desired. There is no evidence of
any considered decisions having been made by anyone (and certainly
not by Ms Andruska) to:
(i )
enter into the joint investigation;
(ii) conduct joint interviews in which interviewees were
denied any privilege against self-incrimination;
54
(iii) provide immediate access to the AFL to investigative
information obtained during information and to other
information during the course of the investigation.
(c) Highly confidential information was provided by ASADA to the AFL in
breach of the Act and the Regulations.
(d) ASADA and the AFL dismissively brushed off objections from those,
including the legal representatives of EFC employees (Russell Kennedy and Ashurst) regarding the legality of the joint investigation
and the legality of providing the interim report and from the Club's own solicitors regarding the latter point.
(e) ASADA acted for an improper purpose in making the interim report
available to the AFL when it knew full well the AFL proposed to use
the report to lay disciplinary charges. Even when the CEO received advice (which belatedly found voice in ASADA's letter of 15 August) Ms Andruska persisted in providing the interim report to the AFL and merely inserted a self-serving invocation of the statutory formula from
clause 4.21 of the NAD Scheme in her letter of 2 August 2013, shc did nothing to convey the restriction that she claimed in cross-
examination was pregnant in that statement. When invited by the judge to identify for what investigative purpose ASADA provided the interim report to the AFL, Ms Andruska did not offer any. Her
response was to the effect that she had committed to providing the
report to the AFL and the best she could do was provide it on the basis set out in her letter of 2 August. 20°
(f) Even when Ashurst complained that the Interim Report had been blatantly used to formulate the charges against Hird, ASADA did
nothing more than write another self-serving letter to the AFL (15 August 2013) that letter was about backside protection and
nothing else. One might reasonably infer from the provision of Word
versions of the interim report to the AFL that ASADA knew the AFL
would be cutting and pasting from that report into its charges.
200 TS216.42-TS217.22.
55
Ms Andruska's evidence about the AFL having other material as well
was a plainly partisan attempt to justify what should never have
occurred.
(g) ASADA's illegal investigation has already operated to the very
substantial prejudice of EFC, Hird and the 34 Players. EFC and Hird
have faced disciplinary charges laid by the AFL based on the interim
report provided to the AFL in breach of the Act and the NAD Scheme.
The 34 Players have endured stress and uncertainty arising from the
service of Show Cause Notices. EEC and Hird stand to suffer further
reputational damage if the Show Cause Notices are not set aside.
(h) The prejudice and damage to the interests of the 34 Players is
manifest (as set out in the opening submissions of the 34 Players).
That prejudice and damage sounds not only at the individual level of
the players, but also on EFC and Hird. In particular, EFC's business
interests and capacity to field a team are at risk if ASADA is permitted
to retain the fruits of its illegal investigation. Although Simonsson
assured the Players on 6 May 2013 that ASADA was "not about
wiping out a team", that is what may well happen.
(i) The prejudice to the 34 Players is exacerbated by the basis upon
which they were encouraged by ASADA to participate in the joint
investigation. There can be no suggestion that the players consented
to the joint investigation. Rather, ASADA obtained the co-operation of
the players by making representations to them on 20 February
2013201 which (and contrary to Ms Andruska's evidence) went well
beyond providing a "plain English" explanation of the ASADA
legislation and process. Rather, they were assured that ASADA would
"fully explore all avenues in an attempt to provide a no fault or
negligence defence" which would have resulted in complete
elimination of sanction. Although ASADA recanted 7 March 2013, 202
but it did not advise the players of that. McLachlan rightly pointed out
in his letter of 7 March to ASADA that the purportedly withdrawal of
201 ACB.A.02.0451. 202 ACB.02.0460.
56
the 20 February statements was baseless, and of no value because EFC and the players had already relied on the assurances to their prejudicem. Despite the matters, ASADA's senior representative, Simonsson, made a further presentation to players on 6 May 2013. 204 Indeed, Simonsson used the occasion to make further reassuring statements, including telling the players: "But honestly, I do not think you're going to have a problem". 205
104 As to the matters raised by the Respondent, the Applicants observe as follows:
(a) Contrary to ASADA's case on acquiescence, the evidence clearly
shows, and Ms Andruska conceded, that ASADA and the AFL had already agreed to engage in a joint investigation of EFC before either
Ian Robson or David Evans said anything to anyone on 5 February. Mr Robson's conversation with Ms Andruska was entirely irrelevant to
that decision, as was EFC's press conference. Supportive public statements regarding cooperation or openness are of no moment:
what else, one might rhetorically ask, was the Club to do, particularly given the AFL's undoubted compulsive powers over both it and its
employees, players and officials alike.
(b) Contrary to ASADA's case, there were a number of objections to the
legality of the joint investigation and the provision of the interim report.
As noted above, ASADA brushed off objections to the legality of its
course. Even if it might be asserted that further objections ought to have been raised, it is clear they would have fallen on deaf ears.
(c) The Court must assess what ASADA did, not what it might have done, or what it might yet do with the notices if set aside and/or it cannot
use the fruits of the illegal joint investigation.
(d) In any event, ASADA's statutory jurisdiction cannot be enlarged by
generalised statements by EFC or by Hird that they would co-operate, or by any delay in bringing proceedings.
203 ACB.A.02.0460 204 Exhibit Al. 205 Statement of Agreed Facts Exhibit E-1.
57
(e) EFC and Hird brought their proceedings to quash the show cause
notices within one day of the notices being issued.
(f) That was quite unlike the circumstances in DPP v Martin (on which
the Respondent relies). That case concerned a Supreme Court order
which was valid until set aside. Moreover, the DPP failed (for more
than 14 months) to seek review of the Supreme Court's August 2012
order, stood by while the Executive appointed a board of inquiry within
a week of the Supreme Court's order, failed to launch a challenge
when the board of inquiry rejected the DPP's attempt to limit the
inquiry in November 2012, stood by when the Executive appointed a
new board of inquiry in July 2013 and then, in late November 2013,
sought orders quashing the August 2012 order. Here, EFC and Hird
did not stand by:
(i) In June, July and August 2013, they raised with ASADA
the illegality of ASADA's actions in providing the Interim
Report to the AFL — based on the restrictions on
ASADA's power to share information.
(ii) As soon as ASADA issued show-cause notices, they
commenced these proceedings to challenge the validity
of ASADA's decision to conduct, and the conduct of, the
investigation.
That is, as soon as ASADA took a step that could be seen to have
immediate consequences that affected the interests of EFC and Hird,
they took steps, in June-August 2013, to raise the lawfulness of those
steps with ASADA and, in June 2014, to challenge the lawfulness of
those steps.
(g)
The Respondent's assertion that relief should be denied on the basis
that the actions of EFC and Hird "brought the game into disrepute by
failing to implement proper governance and accountability
mechanisms" cannot support denial of relief:
(i)
There is no evidentiary basis for that assertion in the case
of Hird;
58
(ii) Nor is there any justification in principle for denying relief
against the consequences of jurisdictional error on such a
ground: once the Court has found that ASADA acted
beyond the power granted by Parliament, the Court has
concluded that Parliament never intended that ASADA's
actions should be valid. How can the actions of EEC and
Hird be used to attribute validity (not intended by
Parliament) to those actions?
(iii) To paraphrase Isaacs J in Myers v Casey (1913) 17 CLR
90 at 123, the wrongs of which EFC and Hird complain
(an unlawful ASADA investigation and breaches of the
constraints in the legislation on disclosing information)
are independent of any misconduct by them. See also
Barton ACJ at 102. In these proceedings, the merits of
EFC's and Hird's conduct is not in issue: rather the issue
is the asserted illegality of ASADA's decision. It is not the
correctness, but the validity, of the decision to issue show
cause notices that is being contested.
105 For all these reasons, the Respondents' defences should be rejected and
relief should be granted as claimed.
13 August 2014
N. J. Young P. J. Hanks
C. G. Button N. A. T. Harrington
E. Murphy R. E. V. Walsh
Counsel for the Essendon Football Club Counsel for Hird
Maurice Blackburn Ashurst Australia
Solicitors for the Essendon Football Club Solicitors for Hird