James Hird’s indefinite quest for vindication hit another roadblock on Friday, with the Full Federal Court unanimously endorsing the investigation into his club’s ill-judged supplements program.
Hird was appealing the decision of Justice John Middleton, delivered on preliminary final day last September.
Middleton ruled that the “close cooperation” between the Australian Sports Anti-Doping Authority and the AFL was legitimate and that ASADA had remained within its statutory powers in conducting the investigation.
Justice Susan Kenny, presiding over a Full Court that also comprised Justices Tony Besanko and Richard White, dismissed the appeal in a concise summary of a somewhat longer judgment – 228 paragraphs, to be exact.
But the clinical brevity of that summary was a deceptive measure of the repudiation it contained. The Court rejected every key argument Hird’s lawyers had advanced and pointedly declined to entertain another one – that they had no right to argue on appeal, having failed to do so at the trial.
It found that the legislative scheme envisaged precisely this sort of cooperation between ASADA and the code’s in anti-doping investigations.
It found that ASADA was entitled to benefit from the use of coercive powers available to the AFL under the latter’s contractual arrangement with AFL players and staff. It was by virtue, or vice, of this contractual leverage that players and staff were forced to answer questions in interviews at which investigators from both ASADA and the AFL were present.
It found that the evidence lawfully obtained from these interviews was a legitimate basis for issuing the show cause notices that Hird went to court (twice) to have set aside.
Consequently, it declined to set them aside.
It agreed with the trial judge that the players, officials and coach knew exactly what their obligations were under the AFL Player Rules and Anti-Doping Code, respectively.
It rejected Hird’s submission that he did not “freely consent” to answering questions under threat of sanction, and that this lack of consent made the evidence obtained at the interviews invalid.
It’s probably worth pointing out that “invalid” does not mean “untrue”, and that Hird has never disputed the truth of any of the evidence he gave. Given his formidable history of recanting, that is surely something.
The Court noted, as the trial judge had held, that everyone subjected to the interrogative interviews had their legal representatives present with them at all relevant times, and that none of them had objected to the presence of either the AFL or ASADA at those interviews, separately or together, simultaneously or not. Nor did any of them object to answering questions on the basis that they might involuntarily expose themselves to penalty or incrimination.
The immediate consequence of the judgment is that the AFL anti-doping tribunal can complete its hearing of doping charges against 34 present and former Essendon players without restriction. That isn’t quite the load-off it might once have been, considering that the hearing is close to completion anyway.
More importantly, however, it means the tribunal will be able to consider all the evidence presented by ASADA in making its determination. Beyond that, the anti-doping authority’s success in the courts offers no indication of the strength of its case at the tribunal.
The larger consequence of the decision – for all the codes, not just the AFL – is that the ground rules have now been established. Moreover, they’re agreeably simple. Doping investigators and sporting administration bodies will not be forced to navigate a delicate path between “cooperation” (okay, according to the erstwhile Hird doctrine) and “close cooperation” (absolutely forbidden, according to the same impenetrable blueprint, as devised and revised by Hird’s legal adviser, Steven Amendola).
They might actually be able to start catching a few drug cheats. That may not be the higher purpose James Hird had in mind when he announced his intention to appeal last October, but it will have to do for now.
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