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Australia: Siren. Full Federal Court decision against James Hird to stand. ASADA power to undertake cooperative investigation with AFL confirmed.

James Hird has decided not to appeal to the High Court regarding the decision of ASADA to issue show cause notices to Essendon Football Club (Essendon) players.

Consequently, the judgment of the Full Federal Court (FFC) on 30 January 2015 will stand. That judgment dismissed Mr Hird’s appeal and confirmed the decision of Justice Middleton that the CEO of the Australian Sports Anti-Doping Authority (ASADA) had the power to conduct an investigation in cooperation with the Australian Football League (AFL). The FFC found that the legislative scheme envisaged that there would be close co-operation between ASADA and sporting administrative bodies and, in this case, that ASADA was therefore permitted to benefit from the AFL’s use of its contractual powers to compel its players and officials to answer questions at interviews conducted collaboratively by both the AFL and ASADA. 

Implications and next steps

The precedential value of the case is limited because of legislative amendments in 2013, which expressly confer additional powers upon ASADA, including powers to require specified persons to attend interviews and give certain information (s13(1)(ea) of the Australian Sports Anti-Doping Act 2006 (Cth) (Act) and corresponding provisions of National Anti-Doping Scheme (NAD Scheme)). Nevertheless, by rejecting the narrower view of ASADA’s “all things necessary or convenient” power put forward by Mr Hird, the Court has confirmed that ASADA has significant powers to undertake investigations into possible violations of anti-doping rules.

The AFL Anti-Doping Panel is expected to issue its ruling in the cases against 34 past and present Essendon players later this month.

Background

In June 2014, ASADA issued “show cause” notices to 34 current and former Essendon players following ASADA’s investigation into allegations that the supplements program implemented at Essendon in 2012 involved those players taking a substance referred to as Thymosin Beta 4, which it alleges was banned under the WADA Code.

ASADA is established by the Act. At the relevant time, it had no express power to compel persons to provide assistance but was conferred with a power to “do all things necessary or convenient to be done for or in connection with the performance of … functions” (s22 of the Act). One of those functions is to “investigate possible anti-doping violations” (s13 of the Act).

The AFL had contractual rights under the AFL Code and Players Rules to compel players and officials to participate in interviews and answer questions.

At first instance:

  • Essendon and its coach, Mr Hird, sought judicial review of the decision of ASADA to issue those notices on grounds including that ASADA did not have the power to conduct an investigation in cooperation with the AFL.
  • Justice Middleton found that the investigation that ASADA conducted was within the statutory powers granted to ASADA. Specifically, Justice Middleton construed ASADA’s powers sufficiently broadly that the investigation, undertaken in cooperation with the AFL, fell within the power of ASADA to do all things convenient to be done in connection with the performance of its functions. 

Our earlier article on Justice Middleton’s judgment can be found here. Further background is in an earlier article here.

Decision of Full Federal Court

The FFC ruled unanimously that the investigation undertaken by ASADA, in cooperation with the AFL, was within ASADA’s power. In its judgment, the FFC characterised the ASADA and AFL investigations as two separate investigations undertaken cooperatively rather than a single joint investigation, and concluded that the legislative scheme contemplated cooperation between the AFL and ASADA. In reaching its decision, the FFC referred to a number of relevant powers and obligations including:

  • ASADA’s power to “do all things necessary or convenient to be done for or in connection with the performance of his or her functions” (s22 of the Act)
  • the obligation of the AFL to refer instances of possible anti-doping violations to ASADA for investigation and cooperate with any investigation (cl 2.04(j) of the NAD Scheme)
  • the fact that the AFL had an express power to compel players to answer interview questions and the AFL had an obligation to provide to ASADA the information arising from such interviews, even if ASADA had not been at those interviews (cl 2.04(e) of the NAD Scheme).

The FFC concluded that the legislation contemplated a collaborative approach between ASADA and sporting bodies such as the AFL to preventing doping in sport and, in this case, ASADA’s investigation, and its subsequent decisions to issue to the “show cause” notices were within the powers conferred upon it.

Authored by Alec White, Senior Associate, Melbourne.

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2015/03/australia-siren-full-federal-court-decision-against-james-hird-to-stand-asada-power-to-undertake-cooperative-investigation-with-afl-confirmed/