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Notices of Charge and
Supreme Court Proceedings
On 13 August 2013, and af ter considering the Interim Report,
the AFL issued Notices of Charge to Essendon and various
personnel, including James Hird, alleging a breach of Rule
1.6: engaging in “conduct which was unbecoming or that was
likely to prejudice the interests or reputation of the AFL or to
bring the game of football into disrepute”.
Hird issued legal proceedings in the Supreme Court of
Victoria on 22 August 2013, alleging that he was denied
procedural fairness with respect to the Notice of Charge.
Hird later discontinued this proceeding and accepted a 12
month suspension from coaching. Essendon was disqualif ied
from the 2013 f inals campaign and was f ined $2,000,000.
First ‘show-cause’ Notices
and the Federal Court
Proceedings
On 12 June 2014, 34 current and former Essendon players
were issued with ‘show-cause’ Notices regarding the use of
Thymosin Beta-4.
1
On 13 June 2014, Essendon and Hird issued Federal Court
proceedings against the CEO of ASADA seeking to set aside
(and, in the case of Hird, prevent) the ‘show-cause’ Notices
and alleging that:
• ASADA did not have power to conduct its investigation
using the AFL’s compulsion powers to obtain information
through interviews;
• ASADA breached statutory conf identiality obligations by
disclosing the Interim Report to the AFL; and
• ASADA’s investigation was conducted for an improper
purpose (being to take advantage of the AFL’s compulsion
powers or to abrogate the common law right of the
players/personnel against self-incrimination).
The Federal Cour t case centred on the legality of the
administrative steps taken by ASADA during the investigation.
On 19 September 2014, Justice Middleton rejected Essendon
and Hird’s cases and found that all aspects of ASADA’s
investigation was lawful
2
. In summary, Middleton J found
that:
• The ASADA investigation was for the legitimate purpose
of investigating anti-doping violations and the nature and
conduct of the investigation was lawful.
• ASADA’s purpose was not to take advantage of the AFL’s
compulsion powers or to abrogate the common law right
against self-incrimination. Players and personnel had the
right to refuse to answer questions put to them by the
AFL or ASADA at the interviews. Whilst doing so could
result in breach of their contract with the AFL, there is no
suggestion that the players/personnel did not understand
the nature of the contractual obligations undertaken, or
the rights they were giving up, in return for the right or
privilege to play or coach AFL for Essendon.
• ASADA’s power to ‘do all things necessary or convenient
to be done for or in connection with the performance
of [its] functions’ should be applied liberally and not
narrowly, and the AFL’s assistance was convenient to
ASADA’s investigation into the possible violations. Whilst
ASADA gained a benef it it did not otherwise have under
the Act, it did not require statutory power to request
information to be provided voluntarily from players/
personnel.
• The provision of information to the AFL was made
in connection with ASADA’s investigation. Given the
players/personnel had made direct, voluntary disclosure
of the information to the AFL, which was present during
the interviews, ASADA did not communicate or divulge of
any information to the AFL (including the provision of the
Interim Report).
• The common law right to privilege against self-
incrimination was curtailed under the contractual regime
and the players/personnel did not make any claim to
invoke this right during the interviews, despite being
legally represented.
From a policy perspective, Middleton J stated that “ASADA
has very important national and international functions
to perform. The f ight against doping requires constant
vigilance, upgrading of investigatory techniques, and well-
resourced and co-ordinated authorised bodies to educate,
1
This involved the players being notified of a possible ‘non-presence anti-doping rule violation’ in accordance with clause 4.07A
of the National Anti-Doping Scheme, which is Schedule 1 to the Australian Sports Anti-Doping Authority Regulations 2006 and
is referred to as “The NAD Scheme”. The NAD Scheme and ASADA Regulations are made pursuant to the Australian Sports
Anti-Doping Authority Act 2006 (Cth)(The Act), which established ASADA as a statutory body and sets out its functions, which
include the administration of the NAD Scheme, and powers of the Chief Executive Officer, which include the power to ‘do all
things necessary or convenient to be done for or in connection with the performance of his or her functions’.
2
Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019
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ISSUE 20 | MARCH 2015