Essendon FC and Hird v ASADA: What does the judgment mean? And what next?

Yesterday, Justice Middleton of the Federal Court of Australia handed down his decision in the much-anticipated challenge by Essendon Football Club and James Hird to the investigation into the club’s supplements program in 2012.  Much has been made in the media in the lead to this decision and the press has again had a field day, pun not intended, since the judgment has been handed down in making comment about the judgment.

As always, the press’ interpretation of a judgment of the Court that runs some 500 paragraphs has, necessarily, been pared back to a couple of small sound bites with effectively the key refrain being “James Hird lost”.

So what was really at stake before the Court and what did Middleton J actually decide? The factual background to the proceedings are well-known and do not need to be repeated here again.

The Issues

The issues in the proceedings were as follows:

  1. Did ASADA have the power to conduct the “joint investigation” with the AFL, as alleged?
  2. DidASADA conduct the investigation for improper purposes, in particular:
    1. in order to circumvent the limitations on its own powers by obtaining the benefit of the AFL’s “compulsory powers” in aid of its own investigation; or
    2. in order to assist the AFL to investigate and take action for the AFL’s own purposes?
  3. Did ASADA breach the obligations of confidentiality or restrictions on disclosure imposed on it under its governing legislation in the conduct of the investigation and in the provision of information from the investigation, including the Interim Report, to the AFL and Essendon?
  4. Did ASADA act for improper purposes in providing information from the investigation, including the Interim Report, to the AFL and others?

Judge’s findings on the facts

Based on the evidence given before the Court, Justice Middleton concluded the following (as set out at paragraph 256 of Middleton J’s judgment):

  1. By 1 February 2013, both ASADA and the AFL had agreed (in general terms) to investigate Essendon.
  2. By 1 February 2013, ASADA agreed (in general terms) with the AFL, that as ASADA lacked compulsory powers, ASADA would gain the benefit of the AFL’s compulsory powers in conducting its investigation.
  3. ASADA would have commenced an investigation into Essendon, its players and personnel without the invitation of Essendon or Mr Hird, and without their public display of support and co-operation.
  4. In light of ASADA’s statutory responsibilities, upon becoming aware of possible anti-doping violations, ASADA would have investigated Essendon, its players and personnel (and probably other clubs) with or without the co-operation of the AFL.
  5. ASADA would have decided to investigate Essendon, its players and personnel (and probably other clubs) without recourse to the AFL’s contractual powers to compel Mr Hird and the 34 Players to answer questions and provide information as requested by the AFL.
  6. Although Mr Hird publicly supported for the “joint investigation”, privately he did not, but was motivated to co-operate with ASADA and the AFL in the best interests of Essendon and its players.
  7. Nevertheless, Essendon, Mr Hird and the 34 Players all co-operated because of their contractual obligations to do so, which required them to attend interviews, answer questions and provide information to the AFL, and to co-operate with ASADA.
  8. Mr Hird and the 34 Players, under their contractual obligations were required to answer questions of, and provide information to, the AFL subject to a limited right to claim the privilege against self-incrimination.
  9. MrHird and the 34 Players were legally represented at all relevant times, co-operated with the investigation, did not claim to exercise the privilege against self-incrimination, and provided information:
    1. in respect of the interviews directly to the AFL and ASADA; and
    2. in respect of other information provided at the request of the AFL, directly to the AFL which was then passed on to ASADA.
  10. The information provided at the interviews by Mr Hird and the 34 Players was simultaneously divulged and communicated to the personnel of both the AFL and ASADA, who were present in the interview room.
  11. The investigation involved the AFL working co-operatively with ASADA, as the AFL was obliged to do under the NAD Scheme.
  12. The investigation involved the co-operation of ASADA and the AFL in terms of strategy, the sharing of financial and personnel resources, and in the conduct of interviews. Their co-operation was evident in the day to day conduct of the investigation as it progressed.
  13. The investigation required co-ordination between ASADA and the AFL as to the conduct of the investigation, including the arrangement of interviews, the collection of physical evidence, and the preparation of documents. These were matters of procedure and machinery, upon which various investigators (either within ASADA or the AFL) took responsibility in the course of the investigation. The fact that either ASADA or the AFL personnel took responsibility for one or other of these matters does not impact upon the conclusion that the investigation was undertaken by ASADA with the co-operation of the AFL.
  14. ASADA benefited from the co-operation of the AFL in two main ways:
    1. First, it benefited from the AFL’s use of its compulsory powers (whether formally or not) to require production of physical evidence, documents, computers and phones, which were provided to ASADA.
    2. Secondly, it benefited from the AFL’s use of its compulsory powers to arrange for Mr Hird and the 34 Players to attend interviews and answer questions truthfully.
  15. ASADA and the AFL had different but related, purposes:
    1. ASADA’s purpose was to investigate allegations of anti-doping violations;
    2. The AFL, concerned with anti-doping violations, was interested in the governance of its clubs, such as Essendon, so as to ensure the AFL anti-doping policy was being properly implemented at the club level.
  16. The investigation undertaken byASADA in co-operation with the AFL in fact resulted in bothASADA and the AFL each making two separate and distinct decisions within their own areas of responsibility;
    1. in the case of the CEO of ASADA, to issue the Breach Notices; and
    2. in the case of the AFL, to bring disciplinary charges against Essendon and Mr Hird.
  17. The Interim Report given to the AFL was prepared for, and divulged or communicated to, the AFL for the purposes of ASADA’s continuing investigation, as set out in a covering letter dated 2 August 2013, but also in the knowledge that it would also be used by the AFL for the purpose of the AFL considering whether to bring disciplinary action against Essendon and Mr Hird.

The Decision

Justice Middleton was faced in this case with a task of judicially reviewing the decision of ASADA and, for that purpose, undertaking a review of the statutory construction of the Acts which govern ASADA’s conduct.

Joint Investigation Issue

Justice Middleton succinctly answers the allegation that ASADA did not have the power to conduct a joint investigation with the AFL as follows (at paragraph 406):

The foremost response to the contention of Mr Hird and Essendon that Parliament did not authorise a “joint investigation” is that as a general proposition, this is too wide. Whether any investigation is lawful or not will depend upon the characterisation of its purpose, and the conduct and nature of that investigation. The investigation of ASADA, the subject of these proceedings, I have found was for the purpose of investigating anti-doping violations. In addition, as I will indicate, the nature and conduct of the investigation was lawful.

Justice Middleton then went on to note that the CEO of ASADA has the power to do “all things convenient” in connection with the performance of his functions and the engagement of the AFL to assist with this investigation fell within that power.

The Improper Purpose Issue

Justice Middleton states unambiguously in his judgment that it is, as a matter of law, well settled that an abuse of power will arise where a power conferred by a legislative instrument (or some other instrument) is used for an alternate or ulterior purpose not conferred.

Justice Middleton found that there were no improper purpose present apropos the investigation undertaken by ASADA and AFL because:

  1. ASADA acted within the confines of the Act and the NAD Scheme because ASADA’s purpose of the investigation was to investigate anti-doping matters.
  2. The use of the compulsory powers by the AFL (and not by ASADA) did not thwart or frustrate the purpose of the ASADA Act.

Factually, therefore, the contentions of Essendon and Hird had foundation and thus an improper purpose could not be found.

The provision of the Interim Report

Essendon and Hird complained that the provision of the Interim Report of ASADA to the AFL was improper because the provision of the report was not “in connection with” the investigation of doping offences and, rather, was to do with disciplinary action the AFL intended to take against Essendon FC under the aegis of the AFL Playing Rules.

Justice Middleton held simply that in his view, on the facts, the provision of the Interim Report to the AFL by ASADA was in connection with the investigation of the doping offences because the course of conduct that lead to the doping offences arising was as a result, in part, of poor governance at Essendon FC which the AFL was investigating under the Playing Rules.

The Outcome

Have come to the conclusions outlined above Justice Middleton dismissed the application of Essendon FC and Hird because they had failed, on the facts, to prove their case.

Final Thought

All in all this decision, as closely based on the facts of the case as it is, strikes me as being difficult to appeal.  That said, I have no doubt that an appeal will be made, if only to extend out the time before an argument about and decision on the actual, alleged, doping takes place.  The longer the case impugning the investigation is made the longer it will take for penalties for doping to vest. Watch this space!

Disclaimer: I have been a fan of the Essendon Bombers since the 1984 Grand Final when I won my first ever bet on the Bombers (my Uncle is a rabid Hawks fan).  I am, and will always be, a supporter of the club.  I am also an avid defender of the rule of law and hate nothing more than seeing decisions of the court not properly explained by the media. 

Cowan, non-parole periods and the media

Like most Queenslanders, nay Australians, I have followed with, principally, horror the trial of Daniel Morcombe’s killer. Cowan (I will not do the man any honour by stating his whole name) was found guilty and sentenced to life imprisonment (on the murder charge) with a non-parole period set of 20 years.

Justice Atkinson, in her sentencing remarks, has been overt about her views and recommendations as to whether Cowan ought ever be considered for parole: in short she would never recommend that he be so considered.  That is, plainly, the right view to take.

The non-parole period set by Justice Atkinson, as she is required to do by Queensland law, has provoked much debate coupled with the threat of an Attorney-Generals appeal.  The debate would appear to have been provoked by the manner in which the sentence of Cowan has been reported.  The media focus, both in print and spoken media, has been on the “shortness” off Cowan’s parole period.  In just about every report I have heard / read the statement “Cowan was sentenced to life imprisonment with parole set at 20 years”.  That is just plainly wrong.  Actually, worse, it is deceptive.

Justice Atkinson’s setting of a non-parole does merely this: it sets the period that Cowan must serve before he can make an application for parole to the parole board.  IT DOES NOT MEAN THAT HE WILL BE OUT OF JAIL IN 20 YEARS.  It means he may seek to be.  Parole boards in Queensland, and more broadly in Australia, are tasked with determining whether a prisoner is suitable for parole.  So all of this hyperbole about Cowan getting out in 20 years is nothing short of hot air.  He is NOT entitled to get out of jail in 20 years; he is merely entitled to apply to be considered for parole.

Parole boards in Queensland, and again in Australia, have a long history of not letting the committers of heinous crimes out of jail when their non-parole periods have expired.  The case of Tony Rawlins is instructive here.  On April 18, 2010 Rawlin passed away at Wolston Park Correction Centre aged 82 having served 54 years in jail for murder of a 12 year old girl.  A medical expert at the time of his trial commented that “he was entirely unconcerned with his deeds.”  His numerous applications for parole were rejected by the Queensland parole board.

Another instructive example is that Douglas Crabbe who in 1983 in the Northern Territory drove his truck into a pub and killed 5 people.  He was sentenced to life in prison with a non parole period of 30 years.  His first parole application last year was rejected and he will not be able to apply for parole for another 3 years.

The Morcombe case is horrifying and I personally believe that Cowan should be locked away and the key thrown away.  He should never see the outside of a jail again.  The fact is that he will not leave jail again.  The sentence of life imprisonment with a non parole period of 20 years means that he will not leave jail again because it is incomprehensible that a parole board would release him.

The media needs to report the facts surrounding the imposition of a non-parole period rather than seeking to incite or misinform the public which is what it is blatantly doing.

I am going to repeat this again: I am not at all suggesting that the sentence of Cowan is two low or that he ought be out of jail in 20 years.  He should never see the light of day outside of jail again.  That is precisely what this sentence means: if only the press would report it that way.

Postscript: Is it any surprise that one of the two applications for a mistrial put to Justice Atkinson arose because of irresponsible reporting by the Courier Mail? The incitement of the public seems to have blinded, as it often does with the Courier Mail, what is actually fair and proper to report and the administration of justice.  I probably should not be surprised then they refuse to report the facts about what a non-parole period means.