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Hird judgement could change everything or nothing

Roar Guru
25th January, 2015
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Roar Guru
25th January, 2015
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With the Full Federal Court soon to deliver its judgment in James Hird’s appeal, chances are David Jones will be taking more than a casual interest in the result.

Jones, the chairman of the AFL anti-doping tribunal, knows the decision of the appeal court will answer two questions critical to the future of the tribunal’s hearing of doping charges against 34 past and present Essendon players.

The first is whether the tribunal can make a ruling at all. The second is whether it is allowed to consider all the evidence gathered by the Australian Sports Anti-Doping Authority in its investigation, and if not, how much it can use.  

The latter issue is complicated by the probability that most of the evidence under challenge has already been presented to the tribunal, either in its brief first sitting prior to Christmas or since its resumption on January 12. 

Updates from the closed hearing indicate that ASADA spent the best part of six days outlining its case, with further submissions to follow the examination of witnesses and the players’ defence.

Jones advised, in a statement on Wednesday, that medical specialists had been examined by both sides this week on the substances in dispute. Time will tell how much of that has been wasted effort. 

Hird appealed the judgment delivered by Justice John Middleton in September last year.

Middleton ruled that ASADA’s investigation into the use of peptides at Essendon in 2012 involved no overreach of its statutory powers.

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Hird and his lawyers believe otherwise: they argued that such cooperation as the ASADA Act permitted did not extend to borrowing the AFL’s coercive powers in the absence of equivalent powers of its own.  

The evidence obtained with the benefit of the AFL’s power to compel players and staff to answer questions at ‘interrogative interviews’ largely conducted by ASADA investigators is central to the case now before the tribunal.

The precise implications of the judgment for the tribunal hearing are unclear, but there appear to be three broad possibilities. 

The first is that the appeal court gives the investigation the same resounding endorsement the trial judge gave it.

In that case the tribunal can take all the evidence into account in reaching its decision. This includes the evidence obtained from the interviews to which Essendon players and staff were subjected under the AFL’s coercive powers. That is the testimony Hird went to court to have thrown out on the basis that they’d been misled into relinquishing their common law protection from self-incrimination.

The official surmise is that this evidence, considered with evidence from other sources, is necessary to establish that the injecting regime was consistent with the use of the banned peptide Thymosin Beta-4.

A second possibility is that the court rules some of the evidence was obtained unlawfully but still permits it all to be available for consideration by Jones and his fellow tribunal members.

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The trial judge offered a not-so-subtle nudge in this direction when he said that, as a matter of discretion, he wouldn’t have ruled the evidence out even if he had found the investigation to be unlawful. 

There would be no point, he said. The legislative scheme requires sporting administration bodies like the AFL to pass on information relating to possible anti-doping rule violations to ASADA.

If the investigation had to be conducted afresh, the AFL could obtain the same information under the same powers and lawfully pass it on to ASADA, who could use it for the same purpose it is using it for now. 

Justice Susan Kenny, presiding over the appeal, appeared to be more troubled by ASADA’s investigative methods than the trial judge had been, however.

“ASADA is a statutory body”, she told the authority’s garrulous QC, Tom Howe.

“It must stay within its statutory powers.” For all his strenuous emphasising of mutual purpose and lock-step partnerships, Howe still had not “filled in that gap”, she said. 

The gap is the legitimacy of the benefit gained by a statutory authority from powers that parliament has not given it. Even after last year’s amendments, the Act doesn’t authorise ASADA to compel answers under threat of sanction.

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The court must decide whether ‘benefiting’ from the exercise by others of powers not in the Act is the same as exercising them itself.

At the appeal, Hird’s QC, Peter Hanks, spent an eternity detailing a multitude of venial transgressions while circling the cardinal sin of ultra vires.

Eventually (and mercifully) given the wind-up, he distilled the case to better effect. 

“The absence of power reflects the deliberate withholding of power,” he said. 
In other words, if the lawmakers wanted ASADA to have that coercive power, they would have written it into the statute. And they didn’t.

Anyone who sat through the two hearings knows it isn’t quite as simple as that, which is why the hardcopy judgment will probably be as thick as ‘The Slap’.

But it’s not a trivial principle at stake. Judges are properly wary of encouraging statutory authorities to look for ingenious ways to expand the effective orbit of their powers.

It’s not impossible the court would give Hird the declaration (and the vindication) he wants, but not the orders.

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It may declare that ASADA acted beyond its powers but allow the tribunal to use the evidence obtained from it.

A third alternative is that the investigation is declared unlawful, the evidence regarded as tainted and the notices (show cause and infraction) retrospectively set aside.

That would probably stop the tribunal hearing in its tracks, if it is still sitting, or prevent it from reaching a verdict, if it isn’t. 

And if ASADA still wants to investigate the chemical experiment at Essendon in 2012? On Hird’s submission, written and oral, it would have only option: “It must start again”. 

And don’t worry, it will.

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