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monitor, investigate and prosecute in appropriate situations.
The adoption of innovative processes and methods of
investigation is to be strongly supported”.
The Appeal
On 1 October 2014, Hird appealed Middleton J ’s judgment
to the Full Court of the Federal Court on ef fectively the
same administrative law grounds that were raised at trial.
On 30 January 2015, the Full Court (consisting of Justices
Susan Kenny, Tony Besanko and Richard White) unanimously
rejected Hird’s appeal and found that
3
:
• The investigation by ASADA was authorised by legislation
and was therefore lawful;
• Given the information relied on by ASADA during its
investigation was gathered in a lawful manner, it could
not be an improper purpose for ASADA to conduct the
investigation in this way;
• There was no unlawful disclosure of information by
ASADA to the AFL, given representatives of the AFL were
also present during the interviews; and
• ASADA did not facilitate the abrogation of any player or
personnel ’s common law right to the privilege against
self-incrimination.
Hird decided not to seek special leave from the High Court to
appeal the Full Court judgment.
Second ‘show-cause’ Notices
and AFL Anti-Doping Tribunal
Proceedings
Essendon decided not to appeal Middleton J ’s judgment and,
on 17 October 2014, ASADA issued fresh ‘show cause’ Notices
to 34 players (and to Stephen Dank). The players did not
respond to the ‘show-cause’ Notices within the prescribed
timeframe. ASADA submitted evidence to the Anti-Doping
Rule Violation Panel (ADRVP - an independent statutory
body), which determined that there was suf f icient evidence
to place the players on the Register of Findings.
None of the players appealed ADRVP’s decision and, on 14
November 2014, and based on notif ication from ASADA, the
AFL was obliged to issue infraction notices on the players
regarding the use of Thymosin Beta-4. The players chose not
to accept the maximum penalty (a 2 year suspension) and,
accordingly, the matter proceeded to the AFL Anti-Doping
Tribunal (Tribunal) behind ‘closed doors’ in February 2015.
The Tribunal will determine whether the players breached
the AFL Anti-Doping Code (by using Thymosin Beta-4) and,
if so, it will also determine the length of the penalty (any
suspension will be ‘backdated’ from 14 November 2014 when
the infraction notices were issued). The Tribunal ’s decision is
expected prior to, or shortly following, the commencement of
the AFL season on 2 April 2015.
Depending on the outcome of the Tribunal ’s decision, the
players and/or ASADA could appeal to the AFL Anti-Doping
Appeals Tribunal (and the World Anti-Doping Agency could
appeal to the Court of Arbitration for Sport). Hypothetically,
if the Tribunal f inds against the players and enforces a 4
month suspension, the players will not miss a ‘home and
away ’ match. Given the publicity which this investigation
has attracted and the desire to stamp out the use of banned
substances in sport, ASADA has indicated that it would ‘very
carefully ’ need to consider its appeal options if the Tribunal
hands down a ‘sof t ’ penalty. Pertinent to ASADA’s decision
may be the doctrine “Justice should not only be done, but
should manifestly and undoubtedly be seen to be done”.
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With regards to the players, they have tried to keep their
identities conf idential (with the support of teammates during
the NAB Challenge) and they have largely been silent in the
public eye. A lengthy suspension could lif t the veil on player
identities, but perhaps the players may be hesitant to drag
these proceedings out any further given the end is now in
sight. In light of all that has happened, and considering
Middleton J ’s comment that the anti-doping violations by
players were related to “poor governance and management
practices at Essendon”, perhaps the players may also be
considering legal proceedings against Essendon. A further
possibility is an investigation by the Victorian WorkCover
Authority (VWA) regarding Essendon’s potential breach of its
duty to provide the players with a safe work environment.
In light of the prospect that fur ther legal proceedings
or appeals may be issued regarding Essendon’s use of
supplements during 2011 and 2012, the f inal siren on the
ASADA saga may be some time away yet.
3
Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7
4
R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 per Lord Hewart
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ISSUE 20 | MARCH 2015 |
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