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.
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.
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.
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.
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.
Bobbo7
Guest
So he lost the appeal. Big surprise - que "it's a conspriacy", "who do you support?" "Hird is a legend" "Other clubs done it"... etc. How about EFC just sack him and move on
Don Freo
Guest
I think some of the posters above you, Matt, actually think their posts count as evidence in court. Andy and Bobbo think that if they say the same thing often enough on The Roar, Judge Kenny will pay attention.
David Ward
Roar Guru
Apologies again (see above). The story was done a few days ago now but it's relevant because the fate of the tribunal hearing, which began before the legality of the investigation was established and is currently underway, largely depends on the Federal Court judgment. If the court rules that the investigation was unlawful and decides that none of the evidence obtained from it can be used at the tribunal, it's hard to see how the tribunal hearing could continue. And with the court sitting year starting next Monday, there's a reasonable expectation (though nothing more) that the Hird judgment isn't far away. It's quite possible you are no better off after reading it, but to some extent that's the point. The court can make a range of declarations and orders - the above scenario is probably the least likely - and whatever it decides won't be directed purely at this case. Its effect may not be as cut and dried as much of the football public, or at least that part of the public that isn't heartily sick of the whole affair, expects and wants it to be. So it was written to provide advance notice of that possibility.
Mister Football
Roar Guru
How could the players get "massive" from taking stuff like AOD (anti-obesity drug) and TB4 (aids tissue repair). If you want to get "massive" just stick to creatine, perfectly legal.
David Ward
Roar Guru
Apologies for the less-than-prompt reply, Mr Football - I had an extended long-weekend away, out of Roar-range. Details of the tribunal hearing are pretty sketchy, but you're correct that some of the evidence will be new and therefore (probably) unaffected by any Federal Court ruling on the legality or otherwise of the investigation. The argument about admissibility that has apparently just concluded would have been directed at new evidence that emerges or may emerge in the course of the current hearing. But the amount of evidence obtained during the 18 month investigation was absolutely colossal (which doesn't necessarily mean it's all good or even relevant), so we can assume that's the bulk of it. And it would be surprising if none of it has been presented in 12 days of hearing. As for the conclusion, that's the stated position of both sides. Hird's lawyers say if the investigation is declared illegal, everything obtained from it is a legal "nullity" and can provide no basis for a tribunal decision. They say if ASADA still wants to investigate it will have to "start again, and do it legally this time". ASADA doesn't accept the merit of such a finding but has made it clear, in court and on the record, that it will do it all again if that's what it takes.
AR
Guest
andyl12 "Duress" is a 2 year contract extension (half paid up front) plus a fully-funded MBA course and holiday in France for you and the kids.
andyl12
Guest
"The cool heads at the EFC along with intermediaries understood that this matter had to be resolved before the finals." Um, no they didn't, and nor have they ever released a statement to such effect. Hird did say on the witness stand that he signed under duress, but then when asked, he couldn't provide a description nor any evidence of such duress.
andyl12
Guest
Paul- I doubt Hird would've been dumb enough to sign a request that the officials break the code. But it would not surprise me if he whispered in someone's ear words to the effect of "if this is illegal, just don't tell me so." You may be right that the football manager was the one calling the shots. But that's not to say it's how it should be, and you can bet your life that most AFL coaches wouldn't agree to coach a club if that was the case and would resign if the football manager was making them look bad. A senior coach needs to be given the power to do his job how he wants to. The other example I can think of where a coach wasn't given this power was Dean Bailey and we know how things ended up for him.
Aransan
Guest
Andy has read a lot more into what I wrote than a reasonable person could possibly interpret. The cool heads at the AFL and the EFC along with intermediaries understood that this matter had to be resolved before the finals. Hird had no option under this but to sign off as he did, it had nothing to do with whether he believed the penalties were justified. Casper's use of the expression "Hird haters" is entirely appropriate and I have trouble understanding why Hird has attracted such attention from some supporters of other clubs.
Bobbo7
Guest
I read that one of the players was surprised how big they got so quickly. I can't imagine that went past the coach. Anyway, let's keep on defending the indefensible. Hird is a golden legend and it's all a big conspiracy. EFC has no records of what it gave its players. Can anyone please explain that one without a Star Trek-esque script? Maybe the records just disappeared like the doctor's letter warning them the drug program was dodgy? A lot of stuff goes missing at EFC it seems. On balance there are no records because those involved knew it was wrong... And even if Hird did not know, as head coach he should stand down because this mess happened on his watch.
conchie
Roar Rookie
Fair points Paul.
Paul
Guest
Andy, That is exactly my point. The media are not impartial, and the general reporting of fact versus opinion has been terrible. In this Hird was set up to be the fall guy ( evidence in case 1) by the AFL,but this has not been reported at all in the Fairfax media (even allowing for Connolly being a Essendon supporter) meanwhile news has been split with Smith obviously, anti Hird but Robinson being a Hird supporter. The only journalists you cannot put into either category are Le Grande and Holmes therefore we need to pay most attention to them. Andy I am pretty confident that I have pointed out to you before that in the Essendon structures that existed at the time you had a football manager running the football department with three sub managers Hird as coach, dr Reid medical and Robimson as strength and conditioning, each if whom where accountable to the manager not each other. Hird was not responsible for Robinson neither was Reid. The coaching department in conjunction with the medical deptpartment were so concerned about the supplement program they wrote in conjunction with Reid to the Football manager asking that the program be stopped. This is why I do not understand the Hird hate by the AFL, media and Victorian public. Bobby, with all due respect (and I would like to be proven wrong) Hird's email indicate the following, firstly that a supplement program was in place (as is the case at all clubs - well school teams rugby teams do so I assume a top line afl club would have), secondly that the program had to be safe for the players, thirdly compliant with the Asada code. No where is there evidence that he asked the officials to break the code. If this evidence clearly did exist he would be gone and rightly so!
andyl12
Guest
I didn't criticize Hird, I criticized Aransan's claim that Hird did care about opposition clubs & supporters. So you and I agree here Casper. Do you also agree with me that Hird signed off on the penalties because deep down he knew they were justified?
Casper
Guest
The Hird haters are really starting to scrape the bottom of the barrel. Now he is criticised for not caring about opposition clubs and their supporters. Give me a break.
conchie
Roar Rookie
Yep, massive is just great for a running game !
conchie
Roar Rookie
Quite clearly Rick he has nothing to back up his statements.
Doc Disnick
Roar Guru
"And surely Hird would have noticed his players getting massive?" It has been reported this dodgy 'Swiss Multivites' injection program had no real noticeable affect on the players. Do you have a source to back such a comment up, because I am unaware of any evidence to support such a statement. I have also not seen anyone major newspaper reporting this to be the case. That's the real sad thing, because to my understanding this entire program probably didn't benefit the players what so ever - from a sporting enhancement perspective anyway.
andyl12
Guest
Hird has long shown a belief that the EFC, and certain people who represent it, have a divine right to things that nobody else in football does. His view that it should be OK for Essendon to inject its way to a premiership is just one example of this, another was when he publicly criticised an umpire (for which he should've been suspended but wasn't, because he bought his way out of it), another is that throughout his career he never voiced credit for an opponent who beat Essendon, he simply said 'Essendon let its fans down today.' He even wept for teammates who left the club after the 2001 season, not stating that had he taken a pay cut then those players could probably have stayed. After all this it is impossible to think he signed away his right to coach in the 2013 finals to please other clubs (particularly given that Carlton were the biggest beneficiaries of this). Oh yeah and Hird is not a scapegoat, he passed that title onto Dean Robinson, Mark Thompson, Ian Robson, David Evans and no doubt there will be more.
Aransan
Guest
Andy, I think you and Hird have something in common in seeing a legal solution to this mess. I don't believe the law will take us anywhere. I can at least understand where Hird is coming from, he believes he has been made a scapegoat and this is his only means of responding. How could you possibly know what Hird has ever cared for?
andyl12
Guest
"That would have meant Essendon playing in the finals which would have been the total focus of the media. That would not have been fair to the other clubs and their supporters." I don't think Hird's ever cared what's fair on other clubs or their supporters, so I'm not sure why he would've suddenly started in August 2013. If, as you suggest, Hird signed off under pressure or duress, he should've presented evidence of this to J Middleton.