FEDERAL COURT OF AUSTRALIA
Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7
Date of last submissions: |
7 November 2014 |
Place: |
Melbourne |
Division: |
GENERAL DIVISION |
Category: |
Catchwords |
Number of paragraphs: |
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Solicitor for the Appellant: |
Ashurst |
Counsel for the Respondent: |
T Howe QC with Dr S B McNicol QC and D Star |
Solicitor for the Respondent: |
Australian Government Solicitor |
IN THE FEDERAL COURT OF AUSTRALIA |
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Appellant |
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AND: |
CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY Respondent |
DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
2. The appellant pay the respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY |
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GENERAL DIVISION |
VID 569 of 2014 |
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
BETWEEN: |
JAMES ALBERT HIRD Appellant
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AND: |
CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY Respondent
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JUDGES: |
KENNY, BESANKO AND WHITE JJ |
DATE: |
30 january 2015 |
PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
THE COURT:
introduction
1 This is an appeal from a judgment of a Judge of this Court dismissing an application for judicial review under s 39B of the Judiciary Act 1903 (Cth). The reasons for judgment of the primary judge are set out in Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019 (PJ).
2 The appellant, Mr James Hird, is the Senior Coach of the Essendon Football Club (Essendon), which is licensed by the Australian Football League (AFL) to enter a team in the Australian Rules Football competition. Essendon employed players who participated in the competition in 2011 and 2012, many of whom remained employed by Essendon in the recent 2014 season.
3 The respondent is the Chief Executive Officer of the Australian Sports Anti-Doping Authority (CEO), who is appointed in accordance with s 20D of the Australian Sports Anti-Doping Authority Act 2006 (Cth) (ASADA Act).
4 The Australian Sports Anti-Doping Authority (ASADA) is established by s 20 of the ASADA Act. Pursuant to s 20A of that Act, ASADA consists of the CEO and the ASADA staff. Under s 20B, ASADA’s function is to assist the CEO in the performance of his or her functions. ASADA is not a party to the appeal.
5 The judgment under appeal was made in proceedings instituted by Essendon and Mr Hird against the CEO on 13 June 2014. This was the day after the CEO had issued notices to 34 then current and former players for Essendon (the 34 Players). By these notices, the CEO notified each of the 34 Players of a “possible non-presence anti-doping rule violation”. The notices were issued under cl 4.07A of the NAD Scheme (set out in Sch 1 to the Australian Sports Anti-Doping Authority Regulations 2006 (Cth) (NAD Scheme)). The significance of the notices was outlined by the primary judge at PJ, [41]-[50].
6 The primary judge recorded that “[t]he decision to issue the [n]otices was based substantially upon information that was obtained through ‘the compulsory powers’ of the AFL and gathered in the course of … investigation”: PJ, [5]. The investigation concerned the involvement of players and personnel at Essendon (including Mr Hird) in a supplements program in 2011 and 2012. The proceedings challenged the lawfulness of the way in which the CEO had conducted the investigation. As already indicated, the appellant’s challenge failed before the primary judge. His Honour rejected the claims made by Essendon and Mr Hird that the CEO had no power under the ASADA Act or the NAD Scheme to conduct the investigation in the way that the CEO did.
7 Mr Hird has appealed against his Honour’s judgment. There is no appeal by Essendon. Neither the AFL nor any player has sought to participate in the appeal.
8 For the reasons stated hereafter, we would dismiss the appeal. In summary, the appeal fails because the appellant failed to show that the investigation conducted by ASADA in cooperation with the AFL was not authorised by the ASADA Act and the NAD Scheme and that the primary judge should have so held. The investigation was, as his Honour held, conducted by ASADA for the lawful purpose of investigating the involvement of Essendon players and personnel in possible violations of anti-doping rules. There was no unlawful disclosure of information by ASADA to the AFL in the interviews of the appellant and the 34 Players, which were conducted during the investigation, as the information was provided directly and simultaneously to both the AFL and ASADA in the interview room. The CEO did not unlawfully facilitate the abrogation of the interviewees’ common law rights to the privileges against self-incrimination or exposure to penalty by engaging the AFL to participate in ASADA’s investigation and relying upon the exercise of the AFL’s compulsory contractual powers. The appellant and the 34 Players entered into a contractual arrangement with the AFL, which the appellant accepted at trial required them to cooperate not only with the AFL but also with ASADA, including by attending interviews and answering questions. Accordingly, the appellant’s appeal fails, including his challenge to the validity of the notices issued to the 34 Players.
Factual findings made by the Primary Judge
9 We turn first to the findings of fact made by the primary judge, which both parties accepted – although the appellant argued that, at critical points, his Honour had mischaracterised the effect of those facts. We return to these issues of characterisation below.
10 We note at this point that the disclosure of the Interim Report (discussed in PJ, [159]-[226] and [445]-[464]) is no longer in issue on the appeal. For this reason, we do not refer to his Honour’s findings concerning it.
11 At the outset of his reasons, the primary judge recorded (PJ, [10]-[12]) that:
There is no dispute that in carrying out the investigation with the co-operation of the AFL, the CEO and ASADA obtained a benefit they did not otherwise have under the Act or the NAD Scheme. Whilst the CEO and ASADA had no power to compel and sanction, it obtained the benefit of what the AFL had, namely the contractual power of the AFL:
(a) to compel Essendon players and personnel to participate in an AFL investigation and to attend an interrogative interview; and
(b) to direct, under threat of AFL sanction, that an Essendon player or personnel respond and answer every question asked of him or her.
In the course of the investigation, ASADA and the AFL agreed to use the powers of compulsion available to the AFL under the AFL Player Rules … and AFL Anti-Doping Code (‘the AFL Code’), in order to compel Essendon players and personnel to attend interviews and answer questions, and effectively disclose (to the extent lawful) information collected in the course of the investigation.
The CEO admitted that the AFL’s compulsory powers enabled the AFL to compel Essendon players and personnel to provide information as directed by the AFL, including by attending interviews (at which ASADA and the AFL were present), in circumstances where interviewees were not then able to claim the privileges against self-incrimination or self-exposure to a penalty.
12 The relevant circumstances commence at the end of January 2013, when the AFL and ASADA discussed, in general terms, an investigation into the use of performance enhancing drugs. On 1 February 2013, the AFL’s Mr Brett Clothier (Manager, Integrity Services) telephoned the then CEO of ASADA, Ms Aurora Andruska, to discuss a strategy for the investigation. Mr Clothier referred to the AFL’s Player Rules and the powers within them. The primary judge specifically noted that Ms Andruska responded with words to the effect of “we can use the AFL’s powers until we get our own powers”: see PJ, [88].
13 On 9 February 2013, Ms Andruska and ASADA staff met with Mr Clothier and the AFL’s Deputy CEO, Mr Gillon McLachlan, together with Essendon’s Chairman and its then CEO, Mr David Evans and Mr Ian Robson: PJ, [100]. The primary judge accepted that Ms Andruska was a credible witness. His Honour found that, following that meeting, Ms Andruska “understood there to be an ‘understanding’ that there would be a ‘joint investigation’ between the AFL and ASADA, and that ASADA would obtain information through the exercise by the AFL of its ‘compulsory powers’”: PJ, [100]. At the same time, the AFL “raised the possibility of AFL sanctions against Essendon and its personnel if any wrongdoing was found as a result of the investigation”: PJ, [101].
14 As already indicated, the AFL’s powers of compulsion derived from the contractual regime governing the players and personnel at Essendon, including Mr Hird, and Essendon itself. The primary judge found that they were “only obliged to adhere to the ‘compulsory powers’ of the AFL because they have each agreed to do so by voluntarily and consensually being bound by a contractual regime”: PJ, [51]. This contractual regime included the AFL’s Player Rules and Anti-Doping Code.
15 The primary judge made specific findings about the AFL’s Player Rules and Anti-Doping Code. These findings explain (at least in part) why the CEO conducted the investigation in cooperation with the AFL. His Honour stated (PJ, [53]-[58]):
The Player Rules
Essendon, its players and personnel were each bound to the Player Rules because:
(a) Essendon was bound to comply with the Player Rules pursuant to the terms of the licence under which it participates in the AFL competition;
(b) players entered into a Standard Playing Contract, which is a tripartite contract between the player, Essendon and the AFL, which provides that the player and Essendon agree to comply with and observe (among others) the Player Rules;
(c) players were required to be registered with the AFL pursuant to the Player Rules, and the relevant registration form also binds each player to observe the Player Rules; and
(d) Essendon’s personnel were also bound to observe the Player Rules pursuant to the terms of their registration forms.
…
Under r 1.5A of the Player Rules, the AFL Commission and the General Manager - Football Operations have a power (among other things):
(a) to inquire into, investigate and deal with any matter in connection with the AFL or the Player Rules and AFL Regulations or appoint any other person to do so; and
(b) to require and obtain production and take possession of all documents, records, articles or things in the possession or control of a person that are relevant to any inquiry or investigation in connection with (among other things) integrity or fairness of the AFL Competition or conduct which may be unbecoming or likely to prejudice the reputation or interests of the AFL or to bring the game into disrepute.
Under r 1.8, Essendon players and personnel must not (among other things):
(f) refuse or fail to attend or give evidence as directed at any inquiry, meeting hearing or appeal when requested to do so;
(g) refuse or fail to fully co-operate with any investigation conducted by the AFL under the AFL Rules & Regulations; or
(h) refuse or fail to produce any document, record, article or thing in the Person’s possession or control that are required to be produced in accordance with these Rules.
…
The AFL has the power to issue sanctions for breaches of the Player Rules: see Pt 16 of the Player Rules.
16 In relation to the AFL Code, his Honour stated (PJ, [59]-[66]):
The AFL Code
The AFL Code applies to Essendon, the Essendon players and personnel: see cl 3.1 of the AFL Code.
Under cl 12.6 of the AFL Code, the AFL General Manager - Football Operations and the AFL Medical Officer have the power to investigate anti-doping rule violations or breaches of the AFL Code. Clause 12.6 provides:
The AFL General Manager - Football Operations and/or the AFL Medical Officer shall investigate the facts and/or circumstances surrounding any actual or alleged Anti Doping Rule Violation, or any actual or alleged other breach of this Code. Where ASADA does not already have knowledge of the alleged Anti-Doping Rule Violation, the AFL will immediately advise ASADA of the matter.
Clause 12.7 of the AFL Code requires players, clubs and officers (among others), upon the request of the AFL General Manager - Football Operations or AFL Medical Officer, to:
(a) fully co-operate with any investigation;
(b) fully and truthfully answer any question asked for the purpose of such investigation; and
(c) provide any document in their possession or control relevant to such investigation.
Under the contractual regime, Essendon, Mr Hird and the 34 Players agreed to the information sharing arrangements set out in cl 4 of the AFL Code.
They also agreed to be bound by cl 20.1 of the AFL Code which provides:
Each Player, Club, Officer and Official acknowledges that ASADA may perform functions under this Code, including without limitation:
(a) the provision of drug awareness or education lectures; and
(b) the functions specified under the ASADA Act.
By signing player registration forms the players acknowledged that the Player Rules (including the AFL Code) “are necessary and reasonable for the purpose of protecting and promoting the game of Australian football”.
The registration forms signed by Essendon personnel also contained the following:
The AFL will obtain and use personal information about you for the following purposes:
– …
– Promoting and protecting the integrity and reputation of the AFL Competition and ensuring compliance with all AFL rules and regulations including but not limited to the AFL Regulations, AFL Anti-Doping Code and AFL Player Rules.
For these purposes or otherwise as required or authorised by law, the AFL may share personal information about you with third parties, such as law enforcement bodies, government authorities, the Australian Sports Anti-Doping Authority (ASADA) …
…
APPLICANT’S CONSENT AND ACKNOWLEDGMENT
In making my application to be registered as a Club Football Official, I hereby:
– …
– Acknowledge and agree that I am subject to and bound by the AFL’s rules and regulations, including without limitation the AFL Regulations, the AFL Player Rules and the AFL Anti-Doping Code …
– Specifically consent to the AFL disclosing personal information about me to the following third parties and the following third parties disclosing personal information about me to the AFL for the purpose of preventing, detecting, deterring and investigating Anti-Doping Rule Violations … in the AFL competition:
– ASADA
(emphasis added)
A person who breaches the AFL Code is subject to sanctions provided by the AFL Code: see cll 3.2 and 14.
17 His Honour concluded (PJ, [67]-[68]):
Pursuant to the combined effect of the Player Rules and the AFL Code, the 34 Players and Mr Hird were obliged to attend interviews and answer questions fully and truthfully, or face possible sanction by the AFL. Again, this was only because they had voluntarily accepted these obligations upon becoming a player or official.
The 34 Players and Mr Hird had agreed to subject themselves to compulsory interviews (the only reservation in respect of exercising any privilege against self-incrimination was in r 1.9). …
As his Honour indicated, r 1.9 did not apply in the circumstances with which we are presently concerned.
18 The primary judge described the arrangements for the investigation in some detail, stating (PJ, [122]-[124]) that:
Having agreed to co-operate, ASADA made many requests of the AFL throughout the investigation. Ms Andruska asked the AFL to use its “compulsory powers” to issue a standing demand to AFL clubs for any investigative material they may collate of their own initiative. Ms Andruska provided a draft notice for the AFL to issue to the clubs. In her covering email, Ms Andruska stated:
As this obligation to cooperate is ongoing the Clubs should also be reminded that they are to continually provide such material to ASADA as and when it is obtained. For example, ASADA is to be provided with an electronic and/or hard copy of any interview immediately following its conclusion - in its complete and unedited form.
If you agree with this position, I propose that the AFL send Clubs a copy of the Notice attached to this email, which has been settled by Senior Counsel. It is obviously a matter for you which Clubs are provided with this Notice but I would urge you to send it to the Club already identified as being under investigation. Accordingly, if ASADA or the AFL become aware that Clubs are not complying with the terms of the Notice, the AFL would be empowered to act upon such non-compliance as a breach of the Anti-Doping Code.
On 5 March 2013, Ms Sharon Kerrison of ASADA sent emails to Mr Haddad at the AFL, in effect agreeing to the terms of the draft AFL notice to Essendon players and officials to attend interviews.
On 14 March 2013, there was a meeting between ASADA investigators and the AFL investigators to discuss an investigation strategy and division of workload between the AFL and ASADA. Later that day, ASADA provided to the AFL a “searchable PDF file of all relevant documents provided by Deloitte” to the AFL. Although the AFL had retained Deloitte for forensic investigative purposes, ASADA was closely involved in the management of the Deloitte processes. ASADA had direct contact with Deloitte, albeit with the permission of the AFL. From time to time during this period, and later at the request of ASADA investigators, the AFL used its “compulsory powers” to require production of physical evidence, documents, computers and phones. That material was subsequently provided to ASADA. ASADA was to record each interview, and provide the AFL with transcripts of the recordings of interviews, which it did. No express conditions were placed on the use of this material in the hands of the AFL, but on the basis of the way in which the “joint investigation” was conducted, such restriction on use would not be expected. …
19 The primary judge also described the interview process, including that the AFL used its compulsory powers to obtain documentary evidence which was then provided to ASADA and that ASADA prepared interview plans to be used in the investigation: PJ, [120]-[150]. In relation to the interviews, the primary judge stated (PJ, [126]):
As the investigation progressed, interviews were conducted on the basis that:
as agreed, ASADA asked the AFL to contact Essendon personnel and players, both past and present, and direct those personnel to attend interviews;as agreed, ASADA asked the AFL to contact Essendon personnel and players, both past and present, and direct those personnel to attend interviewsthe AFL summoned the interviewee using its comp
• as agreed, ASADA asked the AFL to contact Essendon personnel and players, both past and present, and direct those personnel to attend interviews;
• the AFL summoned the interviewee using its compulsory power;
• the AFL interviewer delivered an introduction; and
• the ASADA investigators then effectively took over the interview.
20 The primary judge also accepted that “ASADA continued to control the conduct of the investigation as it progressed”, for example, by providing an interview plan to the AFL; recording each interview; and preparing transcripts of the interviews and providing them to the AFL, who then prepared summaries of the transcripts and gave them to ASADA: see PJ, [127]-[128]; also [143]-[150].
21 His Honour made specific findings concerning Mr Hird’s interview. We set them out below, noting that the conduct of Mr Hird’s interview did not differ materially from other interviews: PJ, [147]-[150], [232]-[233]. The primary judge found (PJ, [130]-[138]):
On 10 April 2013 Mr Hird received a letter from Mr Clothier (‘the AFL letter’), headed “Notice for Interview: James Hird”.
The AFL letter included statements to the following effect:
• The AFL and ASADA were undertaking an investigation into the production, distribution and use of prohibited substances in the AFL (defined in the AFL letter as the “Investigation”).
• Clause 12.7 of the AFL Code placed obligations on relevant persons to:
(a) fully co-operate with any investigation;
(b) fully and truthfully answer any question asked for the purpose of such investigation; and
(c) provide any document in their possession or control relevant to such investigation.
• Rule 1.8 of the Player Rules obliged relevant persons, amongst other obligations, not to:
(a) give any false or misleading evidence to any hearing or investigation conducted under the Player Rules and AFL Regulations;
(b) refuse or fail to attend or give evidence as directed at any inquiry when requested to do so: and
(c) refuse or fail to co-operate with any investigation conducted by the AFL under the AFL Rules and Regulations.
• Mr Hird was required under the Player Rules and cl 12.7 of the AFL Code to attend, on 16 April 2013, an interview with the AFL and ASADA in relation to the investigation.
• Failure to comply with the requirements of the Notice may be acted upon by the AFL as a breach of the Player Rules and/or a breach of the AFL Code.
Also on 10 April 2013, Mr Hird’s legal representative received an email communication from Mr Nolan [Investigator, ASADA], attaching an “explanatory document”.
The “explanatory document” included statements to the following effect:
• The ASADA and the AFL investigation involved an allegation that AFL athletes and support persons may have used prohibited substances and may have engaged in prohibited methods.
• Rule 12.7 of the AFL Code provided that each player, club, officer and official, must upon the request of the AFL General Manager – Football Operations or the AFL Medical Officer:
(a) fully co-operate with any investigation;
(b) fully and truthfully answer any question asked for the purpose of such investigation; and
(c) provide any document in their possession or control relevant to such investigation.
• Failure to comply with the requirements of the interview notice may be acted upon by the AFL as a breach of the AFL Code which if pursued by the AFL could be sanctioned at the discretion of the AFL Tribunal, pursuant to cl 14.11 of the AFL Code.
Pages 6–8 of the “explanatory document” contained, without accompanying explanation, a copy of Div 137 of the Schedule to the Criminal Code Act 1995 (Cth) (‘Commonwealth Criminal Code’). Division 137 contains offences relating to the provision of false or misleading information or documents to a Commonwealth agency, which includes ASADA.
On 16 April 2013, Mr Hird attended an interview with ASADA and AFL representatives (‘the Interview’).
The Interview was introduced by Mr Haddad, an employee of the AFL, and then principally conducted by ASADA investigators John Nolan and Aaron Walker. Mr Haddad and the two ASADA investigators were present throughout the Interview. At the commencement of the Interview, the AFL employee said to Mr Hird, in the presence of the two ASADA investigators, words to the following effect: “This is a joint investigation between the AFL and ASADA — the Australian Sports Anti-Doping Agency — and it’s run under the rules of the AFL”.
Mr Haddad informed Mr Hird, also at the commencement of the Interview, that if Mr Hird refused to answer any of the questions put to him, Mr Hird’s refusal could result in sanctions under the AFL Rules.
Neither of the two ASADA investigators:
• Specifically then asked Mr Hird whether he consented to the disclosure to the AFL of the information that Mr Hird supplied in the course of the Interview; or
• informed Mr Hird that he had a right to refuse to consent, or a right to withhold consent, to the disclosure to the AFL of that information; or
• stated to Mr Hird that the ASADA legislative regime did not abrogate the common law right against self-incrimination; or
• stated to Mr Hird that he had the right to refuse any question on the ground that it might incriminate him; or
• stated to Mr Hird that, pursuant to the ASADA legislative regime, Mr Hird, upon being interviewed, had the right to remain silent without penalty or censure.
22 The primary judge noted that Mr Hird was legally represented at the interview; and that he “had by contractual arrangement with the AFL fully agreed to the procedures” and “did not claim any privilege or right against self-incrimination, and raised no objection to the presence or role played by ASADA or the AFL or to the provision of information to ASADA or the AFL”: PJ, [139]. His Honour also found that, although counsel for Mr Hird raised a question about the validity of the “joint investigation” at Mr Hird’s interview, the issue was effectively put aside when Mr Hird agreed to proceed with the interview, without expressly or impliedly reserving his position: PJ, [141].
23 In outlining the attitude of Essendon, Mr Hird and the 34 Players, the primary judge held (PJ, [228]) that “[t]hroughout 2013, Essendon, Mr Hird and the 34 Players co-operated with the ‘joint investigation’”. His Honour found (PJ, [234]) that the evidence showed that Mr Hird:
• did not claim any privilege or right against self-incrimination or penalty and raised no objection to the presence of ASADA investigators or the role played by ASADA or the provision of information to ASADA;
• co-operated with the AFL and ASADA throughout the investigation;
• accepted that there were sanctions under the AFL rules in respect of matters ascertained during the conduct of the “joint investigation”;
• made public statements signalling his co-operation and support for the “joint investigation”;
• declined to take any steps by way of legal action or otherwise to restrain the ongoing conduct of the “joint investigation” and the ongoing conduct of ASADA’s investigation subsequent thereto; and
• stated on multiple occasions (directly or through his Counsel) that he intended to co-operate with the investigation.
His Honour found that Essendon “similarly showed its support of and co-operation with the ‘joint investigation’”: (PJ, [235]).
24 On 30 May 2014, the CEO of ASADA received a recommendation in the form of a 97 page report (called a Show Cause Pack) from an ASADA staff member to give consideration to the material in the Show Cause Pack in order that the CEO “could make a positive determination and give approval for the issue of a notification to one or more of the Essendon players”. Most of the players were interviewed by ASADA and the AFL. His Honour stated (PJ, [254]) that:
The Show Cause Pack was based substantially on material obtained by ASADA during the investigation. The bulk of its contents consists of interviews conducted by ASADA and the AFL with players and Essendon personnel. The interviews formed a significant and material basis for the recommendations made to the CEO.
25 Having made findings about the investigation and the interview process, the primary judge opined that “[t]he determination of these proceedings primarily depends upon the correct characterisation of the events which occurred, and the purpose and nature of the investigation by ASADA with the co-operation of the AFL”: PJ, [255]. In this context, his Honour said (PJ, [256]) that, based on the evidence before him and the parties’ admissions, he had concluded:
(a) By 1 February 2013, both ASADA and the AFL had agreed (in general terms) to investigate Essendon.
(b) By 1 February 2013, ASADA agreed (in general terms) with the AFL, that as ASADA lacked compulsory powers, ASADA would gain the benefit of the AFL’s compulsory powers in conducting its investigation.
(c) ASADA would have commenced an investigation into Essendon, its players and personnel without the invitation of Essendon or Mr Hird, and without their public display of support and co-operation.
(d) In light of ASADA’s statutory responsibilities, upon becoming aware of possible anti-doping violations, ASADA would have investigated Essendon, its players and personnel (and probably other clubs) with or without the co-operation of the AFL.
(e) ASADA would have decided to investigate Essendon, its players and personnel (and probably other clubs) without recourse to the AFL’s contractual powers to compel Mr Hird and the 34 Players to answer questions and provide information as requested by the AFL.
(f) Although Mr Hird publicly supported for (sic) the “joint investigation”, privately he did not, but was motivated to co-operate with ASADA and the AFL in the best interests of Essendon and its players.
(g) Nevertheless, Essendon, Mr Hird and the 34 Players all co-operated because of their contractual obligations to do so, which required them to attend interviews, answer questions and provide information to the AFL, and to co-operate with ASADA.
(h) Mr Hird and the 34 Players, under their contractual obligations were required to answer questions of, and provide information to, the AFL subject to a limited right to claim the privilege against self-incrimination.
(i) Mr Hird and the 34 Players were legally represented at all relevant times, co-operated with the investigation, did not claim to exercise the privilege against self-incrimination, and provided information:
(i) in respect of the interviews directly to the AFL and ASADA; and
(ii) in respect of other information provided at the request of the AFL, directly to the AFL which was then passed on to ASADA.
(j) The information provided at the interviews by Mr Hird and the 34 Players was simultaneously divulged and communicated to the personnel of both the AFL and ASADA, who were present in the interview room.
(k) The investigation involved the AFL working co-operatively with ASADA, as the AFL was obliged to do under the NAD Scheme.
(l) The investigation involved the co-operation of ASADA and the AFL in terms of strategy, the sharing of financial and personnel resources, and in the conduct of interviews. Their co-operation was evident in the day to day conduct of the investigation as it progressed.
(m) The investigation required co-ordination between ASADA and the AFL as to the conduct of the investigation, including the arrangement of interviews, the collection of physical evidence, and the preparation of documents. These were matters of procedure and machinery, upon which various investigators (either within ASADA or the AFL) took responsibility in the course of the investigation. The fact that either ASADA or the AFL personnel took responsibility for one or other of these matters does not impact upon the conclusion that the investigation was undertaken by ASADA with the co-operation of the AFL.
(n) ASADA benefited from the co-operation of the AFL in two main ways:
(i) First, it benefited from the AFL’s use of its compulsory powers (whether formally or not) to require production of physical evidence, documents, computers and phones, which were provided to ASADA.
(ii) Secondly, it benefited from the AFL’s use of its compulsory powers to arrange for Mr Hird and the 34 Players to attend interviews and answer questions truthfully.
(o) ASADA and the AFL had different but related, purposes:
(i) ASADA’s purpose was to investigate allegations of anti-doping violations;
(ii) The AFL, concerned with anti-doping violations, was interested in the governance of its clubs, such as Essendon, so as to ensure the AFL anti-doping policy was being properly implemented at the club level.
(p) The investigation undertaken by ASADA in co-operation with the AFL in fact resulted in both ASADA and the AFL each making two separate and distinct decisions within their own areas of responsibility;
(i) in the case of the CEO of ASADA, to issue the [n]otices; and
(ii) in the case of the AFL, to bring disciplinary charges against Essendon and Mr Hird.
We omit conclusion (q) since it relates to the Interim Report, the disclosure of which is not in issue on the appeal.
Other findings made by the primary judge
26 Besides the findings or conclusions referred to above, the primary judge made other findings and conclusions of a qualitatively different kind, including those involving characterisations of the facts as found, findings of mixed fact and law, and conclusions about the application of the law to the facts as found. We refer to these in the following paragraphs.
27 The primary judge held that “at a general level”, it “may be accepted” that “the investigation was a ‘joint’ or collaborative investigation between the AFL and ASADA”, although this characterisation did “not assist in reaching the ultimate determination of these proceedings”: PJ, [399]-[400]. This was because, so his Honour held, “[t]he real question … is the purpose or objective of ASADA”; and “ASADA was clearly conducting an investigation into possible anti-doping violations” while “[t]he AFL was undertaking its own enquiries, obtaining information for itself (for instance, through the interview process) for the purposes of enforcing its own Player Rules”: PJ, [400].
28 The primary judge rejected the submission made by Mr Hird and Essendon that the Parliament did not authorise a “joint” or collaborative investigation by ASADA and the AFL. His Honour held that “[t]he investigation of ASADA … was for the purpose of investigating anti-doping violations” and that “the nature and conduct of the investigation was lawful”: PJ, [406].
29 The primary judge held that, whilst there was “no express power to conduct a ‘joint investigation’”, by reason of s 22 of the ASADA Act, “the CEO has the power to do all things ‘convenient’ to be done ‘in connection’ with the performance of his or her functions” and that “[t]his includes doing anything incidental to, or conducive to, the performance of the elaborated functions in s 21” of the ASADA Act: PJ, [407]. His Honour explained (PJ, [408]-[411]) that:
Calling upon the assistance or co-operation of a sporting administration body, such as the AFL, depending on the way it occurred, could be convenient to the performance of an investigatory function into possible violations of anti-doping rules. Likewise, assistance and co-operation of the AFL could also be convenient in monitoring the compliance by the AFL with its own anti-doping policies and practices, and for the purpose of publishing reports about the extent of that compliance.
Further, the inquiry is not whether Parliament considered there to be a “need” for a “joint investigation” — the question is whether the Parliament authorised the investigation that in fact took place. There may be many avenues for ASADA to obtain information, and it should not be assumed that one avenue is not to seek (appropriately) information from a sporting administration body such as the AFL. In fact, cl 4.21(2)(a) and s 13(1)(g) envisage that ASADA may disclose protected information for the purposes of its investigation, which may involve the AFL in return co-operating with ASADA.
As to the range of persons who may be involved in an investigation, the provisions of the Act referred to by Essendon and Mr Hird are enabling, and do not confine the scope of persons who may be called upon to co-operate or assist the CEO or ASADA. In any event, ASADA was not assisted by AFL personnel in a capacity of agency, employment, servant or member of the ASADA staff. The arrangement between ASADA and the AFL was one wherein ASADA sought the co-operation of the AFL for the purposes of ASADA’s investigation into possible anti-doping violations.
It can be accepted that there is a demarcation of the functions of ASADA and the AFL; for instance, sanctions for anti-doping violations are not imposed by ASADA or the ADRVP, but by the AFL. However, this does not preclude the AFL from being able to co-operate with ASADA, provided the processes set forth in the Act and the NAD Scheme are properly adhered to by ASADA and the AFL.
30 Therefore, his Honour said, “it cannot be concluded, without first knowing the purpose, nature and conduct of an investigation, whether as a matter of law or principle, the [ASADA] Act or the NAD Scheme authorises a particular investigation, labelled ‘joint’ or otherwise”: PJ, [412].
31 The primary judge rejected the submission that, because the players and personnel of Essendon were interviewed in the presence of representatives of ASADA and the AFL, the interviews involved the unlawful disclosure of information. The primary judge held that “Mr Hird and the 34 Players voluntarily and directly gave to the AFL the answers to questions and the information without complaint”; that “the information provided at the interviews by Mr Hird and the 34 Players was simultaneously divulged and communicated to personnel of the AFL and ASADA”; and that, in consequence, “there was no disclosure of any information by ASADA to the AFL in the interviews”: PJ, [415], [443]. The primary judge added (at [417]):
In any event, by actually being present in the interview room, knowing that AFL personnel were present, being aware that the Player Rules were applicable to the interview process, and by responding to each and every question, it can hardly be said that Mr Hird and the Essendon players and personnel did not knowingly consent to any information being disclosed then and there to all in the interview room.
32 The primary judge also rejected the submission that the CEO of ASADA agreed with the AFL to conduct the investigation for improper purposes; and that “whatever the range of permissible purposes, they did not extend to ASADA joining forces with an investigative partner in order to benefit from the partner’s use of its compulsory powers”: PJ, [418], [422]. His Honour accepted that, although “[t]he ‘desire’ to use or ‘harness’ the AFL’s compulsory powers” was a consideration relevant to ASADA’s interest in seeking the AFL’s cooperation, “[i]t was not ASADA’s purpose for conducting of (sic) the investigation” (emphasis original): PJ, [426]. Rather, the primary judge held that ASADA’s purpose was “to investigate possible anti-doping violations”: PJ, [427], [439]. His Honour observed (PJ, [427]) that:
ASADA was not using any power of compulsion or any power of sanction under the Act or NAD Scheme. Mr Hird and the 34 Players could refuse to produce documents to, and to answer questions put to them by ASADA or the AFL, but in doing so would breach their contractual obligations with Essendon and the AFL. Whether or not the 34 Players (or even Mr Hird) felt they had no choice to answer questions in front of ASADA and the AFL, is not to the point. The legal consequences of Mr Hird and the 34 Players voluntarily entering into the contractual regime with Essendon and the AFL, and subjecting themselves to the Player Rules and AFL Code, included undertaking certain obligations and relinquishing certain rights. One such right was the right to claim the privilege against self-incrimination before the AFL subject to the carve out in r 1.9 of the Player Rules. Similarly, obligations were imposed on Mr Hird and the 34 Players to co-operate with the AFL and ASADA in investigations. There is no suggestion in these proceedings that Mr Hird or any of the 34 Players 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 football for Essendon in the AFL competition.
33 His Honour concluded that “[t]he use of the compulsory powers by the AFL (and not by ASADA) did not thwart or frustrate the purpose of the Act or the NAD Scheme”, noting that “ASADA did not use any compulsory power of its own” and “[n]o power of the State has been utilised” to compel Mr Hird and the 34 Players to answer questions or provide information: PJ, [440]. After noting that no claim to invoke the privilege against self-incrimination was made at the interviews, his Honour continued (PJ, [442]):
Mr Hird and Essendon had the opportunity to refuse to answer questions and provide information, albeit with the consequence of possible contractual sanctions by the AFL. No power of the State would have been involved in the imposition of this sanction — ASADA could take no action to enforce the refusal of any player or of Mr Hird to answer questions or provide information. This would be entirely a matter for the AFL. In essence, there was thus no “compulsion” by ASADA at all, nor any resultant abrogation of privilege against self-incrimination.
34 It was on this basis that the primary judge determined to dismiss the applications brought by Mr Hird and Essendon. As already noted, we are here concerned with an appeal by Mr Hird against his Honour’s judgment.
35 Although the primary judge held that the applications should be dismissed, he gave some consideration to the appropriate relief if he had found the investigation to be unlawful. We do no more than sketch his Honour’s approach, since, as appears below, it is unnecessary for us to consider the matter of relief again.
36 The primary judge stated that he would not have “declined to set aside the [n]otices or grant injunctive orders on the basis of public policy, delay, acquiescence or the conduct of either Essendon or Mr Hird”: PJ, [477]. His Honour’s reasons included that:
the conduct of Essendon and Mr Hird was not a basis for denying the grant of relief (PJ, [478]);
there was no suggestion that any of the 34 Players acted in any way improperly (PJ, [479]);
there was no relevant delay in bringing the proceedings, as they were commenced immediately after the notices were issued to the 34 Players (PJ, [480]-[482]);
whilst there was considerable acquiescence and cooperation with the investigation, the public policy consideration of upholding the rule of law would have favoured the granting of relief over any other public policy consideration (PJ, [483]); and
any injunctive relief would only be directed to ASADA and its subsequent use of unlawfully obtained information; and this “could not affect downstream decision-makers, who will need to consider the position if and when unlawfully obtained evidence is sought to be tendered and relied upon before them” (PJ, [484]-[485]).
37 The primary judge found that the only grounds which would have justified declining relief were “the grounds of inevitable outcome and utility”: PJ, [486]. As to these grounds, his Honour said (PJ, [487]-[493]):
The AFL could itself have separately and lawfully (pursuant to the contractual regime) compelled the 34 Players and Mr Hird to provide the very information in fact provided by them in the course of the investigation.
ASADA could then have requested the provision of information from the AFL, or the AFL could have volunteered the information. The privileges (sic) against self-incrimination would not have been claimed in relation to the AFL due to the contractual obligations of Mr Hird and the 34 Players. In such a scenario, there would have been no question of unauthorised information being divulged or communicated by ASADA, as the AFL would have divulged or communicated the information to ASADA.
As to the future, no useful purpose would be served by setting aside the [n]otices or the grant of injunctive relief sought by Mr Hird and Essendon, because the process set out above could then be undertaken by the AFL and ASADA. I am not suggesting that this could be done by the simple expedient of obtaining the transcripts of the interviews in the possession and control of the AFL. This may not be permissible if the information contained in such transcripts was obtained unlawfully by ASADA.
However, the Court would not frame an order which prevents ASADA from being able to carry out its statutory functions in accordance with the law, even if that involves the derivative use of information sourced from the unlawfully conducted interviews. Nor does the power of the Court extend to removing from the memory of ASADA the material it has gathered in the investigation, some of which was lawfully obtained in any event.
If ASADA had made an unlawful decision, itself a nullity as contended for by Mr Hird and Essendon, this would not prevent a decision-maker making another lawful decision: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
The CEO or ASADA could in the future lawfully obtain effectively the same information by further interviews conducted independently by the AFL, which information would be given to ASADA. Mr Hird and the 34 Players can hardly be heard to contend before this Court in these proceedings that they would break their current contracts with Essendon and the AFL, and fail to provide requested information to the AFL.
The CEO would then need to consciously re-consider whether to issue new notices based upon that information and any additional material before him.
38 Whilst his Honour did not expressly hold that, on the grounds of inevitable outcome and utility, he would not have granted the relief sought (and he had no need to do so), it may be inferred from the foregoing that he was drawn to that conclusion.
grounds of appeal
39 There are essentially six grounds of appeal. They are: that the learned primary judge erred in failing to find that:
(1) the “joint” or cooperative investigation was ultra vires the ASADA Act – appeal grounds 1.1-1.6, 2, 3.1-3.8 (Primary Submission);
(2) the CEO of ASADA acted unlawfully in conducting the investigation for purposes extraneous to the purpose for which the investigative power was conferred – appeal grounds 1.7, 3.11-3.12 (Second Submission);
(3) the CEO of ASADA acted unlawfully in disclosing NAD Scheme personal information to the AFL in the interview room – appeal grounds 1.4-1.6, 3.4, 3.9, 3.10 (Third Submission);
(4) the CEO of ASADA acted unlawfully in facilitating the abrogation of the interviewees’ common law rights against self-incrimination or exposure to penalties by engaging the AFL to participate in ASADA’s investigation – appeal grounds 1.6, 3.6-3.8 (Fourth Submission);
(5) the evidence or information unlawfully derived from the interviews could not constitute evidence or information received for the purposes of cl 4.07 of the NAD Scheme; and the notices issued to the 34 Players under cl 4.07A of the NAD Scheme were therefore invalid – appeal grounds 3.13-3.17 (Fifth Submission); and
(6) there was no occasion to consider discretionary matters affecting relief and, in any event, there were no discretionary grounds for refusing relief if the unlawful character of the investigation was recognised – appeal grounds 1.8 and 3.18 (Sixth Submission).
40 The respondent filed a notice of contention in support of an argument to the effect that the primary judge was wrong in holding that, if he had found the investigation to be unlawful, then the relevant public policy considerations and other matters to which he referred would not have justified the refusal of the relief sought.
The appellant’s submissions
The Primary Submission of the appellant
41 The appellant’s arguments in support of his appeal varied from time to time over both his written and oral submissions. What follows is a synthesis of their various forms.
42 The appellant’s fundamental submission was that the primary judge erred in finding that there was a statutory basis enabling the CEO of ASADA to agree with the AFL to conduct an investigation into possible anti-doping rule violations “in concert with the AFL”. The appellant submitted that “the foundation question” was: how did the legislation authorise or empower ASADA to carry out an investigation into a possible anti-doping rule violation? The appellant emphasised that at the relevant time ASADA had no coercive powers of its own and was subject to statutory constraints on the disclosure of information. The appellant argued that, by acting with the AFL with respect to the investigative interviews of Essendon players and personnel, including Mr Hird, ASADA took illegitimate advantage of the AFL’s contractual power to compel attendance at the interviews and the provision of information.
43 Senior counsel for the appellant said at the hearing of the appeal, “[t]he real vice [was] seeking to step around the absence of power”. Senior counsel later stated that:
We do say that here the Act and the scheme appointed a course to be followed, and that was an investigation by ASADA, absent any coercive power, and that should be understood as importing a negative that that investigation should not be carried out according to some other means.
The appellant invited us to conclude that:
ASADA sought to supplement the granted power in a way neither contemplated nor authorised by Parliament and that was unlawful.
44 The appellant contended that the investigatory interviews were properly regarded as ASADA’s, not the AFL’s, investigation. In this regard, the appellant made much of the controlling role of ASADA in the interview process. In written submissions, the appellant submitted that, “[o]n any sensible view of the evidence, ASADA ran, oversaw and controlled the investigative process. It ran the interview process, in conducting an investigation under cl 3.27 of the Scheme.” The fact that it was an ASADA interview process, not an AFL interview process, was, so the appellant submitted, supported by the fact that Mr Hird and the players were warned before attending an interview about the operation of the Commonwealth Criminal Code. At the hearing of the appeal, senior counsel for the appellant said that:
[T]his was plainly a process controlled by ASADA deciding who would be called to interview, approving the form in which they were required to attend, sending out their own statement about what the investigation was about and what the obligations were to the interviewees and then, in the course of each interview, asking “the vast majority of the questions” according to Mr Walker, with the AFL – to use – I hope it’s not a mixed metaphor – topping and tailing the interview, doing an introduction and then having an opportunity at the end to ask some questions.
45 The appellant contended that the ASADA Act and the NAD Scheme contemplated that ASADA conduct an independent investigation into anti-doping rule violations; and that they did not contemplate an investigation conducted in harness with a sporting administration body (SAB) such as the AFL. Referring to s 13(1)(f) of the ASADA Act and cll 2.04(d), (e), (f), (j) and (n) and 3.27 of the NAD Scheme, the appellant submitted that, whilst ASADA could require the AFL to cooperate with, and provide information to it, ASADA was not authorised to conduct an investigation jointly with the AFL. On the contrary, relying on cll 2.04(d), (i) and (j) and cl 3.27 of the NAD Scheme, the appellant submitted that ASADA was to operate independently of government and the SABs; and that, consistently with this, the ASADA Act set out strict protections for those who provided information to ASADA. As senior counsel for the appellant put it, whilst ASADA could call on the AFL to cooperate with an investigation, that did not “open the door to some direct involvement in the investigation process”. Rather, so he submitted, “[t]hat term ‘cooperation’ involves a degree of deference or subordination to the ASADA investigation.”
46 The appellant contended that the primary judge’s identification of the ancillary power in s 22 of the ASADA Act as the source of the CEO’s statutory authority was mistaken. The only relevant function conferred on the CEO and ASADA by ss 21(b) and 13(1)(f) of the ASADA Act and cl 3.27(1) of the NAD Scheme was, so the appellant argued, to conduct an independent investigation of anti-doping violations. Citing Clough v Leahy (1904) 2 CLR 139 (Clough v Leahy), Lacey v Attorney-General (Qld) (2011) 242 CLR 573 (Lacey v Attorney-General (Qld)), Anthony Lagoon Station Pty Ltd v Maurice (1986) 15 FCR 565 (Anthony Lagoon), Shanahan v Scott (1957) 96 CLR 245 (Shanahan v Scott) and Plaintiff S4/2014 v Minister for Immigration & Border Protection (2014) 312 ALR 537 (Plaintiff S4/2014), the appellant argued that s 22 did not “add a new or different means of carrying out its purpose”; and that “[t]he express grant of power to the CEO to conduct that investigation involved [a] denial of power to do the same thing free from the conditions prescribed by the provisions”. As senior counsel for the appellant put it, s 22 would not support “the overriding of the right to decline to answer questions”.
47 Various provisions of ASADA’s governing legislation were, so the appellant argued, “inconsistent with the idea that [the legislation] authorised ASADA to conduct an investigation jointly with the AFL”. In this connection, in written submissions, the appellant noted:
The Act limited the persons who could be “entrusted persons”, thereby limiting the persons who could participate in an ASADA investigation: see ss 24M, 24N(1), 69 and 71(1) of the Act.
Allowing ASADA to engage in a joint investigation with someone who was not an “entrusted person”, would entirely circumvent the confidentiality provisions in s 71 of the Act: NAD Scheme personal information could be disclosed to persons who, not being “entrusted persons”, were free of the limitations on disclosure.
The Act imposed substantial protections and restrictions on the disclosure of information collected by ASADA in the course of an investigation, so as to prevent ASADA allowing the AFL to participate in an investigation. Those restrictions extended beyond s 69, s 71 of the Act and cl 4.21 of the Scheme, and included the restrictions imposed by regs 5 and 5A of the Regulations, and cll 4.19, 4.20 and 4.22 of the Scheme.
48 In oral submissions, the appellant submitted that ss 24M and 24N of the ASADA Act identified those who could provide assistance to ASADA, and to whom functions and powers could be delegated. These provisions did not include a SAB, such as the AFL. Further, so the appellant contended, having regard to ss 13(1)(g), 69 and 71 of the ASADA Act and cl 4.21 of the NAD Scheme, ASADA could not invite a representative of the AFL to listen to and record the information communicated at the investigative interviews. The appellant submitted that the effect of these provisions was that ASADA could not uncritically release such information to a third party simultaneously with its receipt. The appellant further submitted that, by virtue of cl 4.21 of the NAD Scheme, ASADA could disclose such information to a SAB only for the purposes of, or in connection with, ASADA’s investigation of a possible anti-doping rule violation.
49 The appellant contended that, by virtue of cl 2.04(j) of the NAD Scheme and cll 12.6 and 12.7 of the AFL’s Anti-Doping Code (discussed below), the AFL had no power to investigate the possible anti-doping rule violations once it had referred the matter to ASADA. Rather, so the appellant said, although the AFL had the power under its own Player Rules to enforce governance standards, under cll 2.04(d) and (j) of the NAD Scheme, the AFL was required to “immediately inform ASADA of an alleged breach of its anti-doping rule policy and cooperate with any investigation into the matter” and to “refer all instances of possible anti-doping violations to ASADA for investigation and cooperate with any investigation, as required”. Consequently, so this argument ran, ASADA exceeded the power conferred by its governing legislation when it sought to conduct a joint investigation with the AFL.
50 As the above reference to the AFL’s Anti-Doping Code indicates, the appellant also argued on the appeal that the primary judge misunderstood the effect of the contracts between Mr Hird and the players on the one hand and the AFL on the other. The result was, so the appellant argued, that Mr Hird and the players did not consent to the disclosure of information by attending interviews arranged by the AFL for the purposes of ASADA’s investigation. The appellant contended that his Honour: (1) paid no regard to cll 4.1—4.10 of the AFL’s Anti-Doping Code, pursuant to which, so it was said, the AFL’s power to investigate was confined by, and subject to, ASADA’s power to investigate; (2) pursuant to cl 12.2, the AFL’s investigation under cl 12.6 of the AFL’s Anti-Doping Code was to precede its advice to ASADA of a possible anti-doping rule violation; and (3) by cl 12.7, Mr Hird’s and the players’ agreement to cooperate extended only to an investigation under cl 12.6 of the AFL’s Anti-Doping Code and did not apply to an ASADA investigation. This was the basis of the appellant’s submission that:
The [a]ppellant could not be compelled to attend an ASADA investigation under AFL Code, cll 12.6 or 12.7; but he could be compelled to assist the AFL in its own investigation under its Rules. … Any consent was predicated on the mistaken premise that the AFL could compel participation in ASADA’s investigation.
51 At the hearing of the appeal, senior counsel for the appellant made a different but related point when he said:
The obligation, as it was presented to the players, was one set out in clause 12.7 of the Anti-Doping Code. They were reminded, the players. Each interview[ee] was reminded, “You’ve signed up to this, you must disclose.” Our short point here is this …the interview[ee] comes into the room, is told that and is told of the sanctions, is asked questions and answers the questions. There is no free consent to the provision of that information to ASADA.
Second Submission
52 Secondly, the appellant submitted that the primary judge erred in not finding that the CEO of ASADA acted unlawfully in conducting the investigation for purposes extraneous to the purpose for which the investigative power was conferred. The appellant submitted that the only proper purpose was to investigate possible anti-doping rule violations; and ASADA’s extraneous purposes were: “to take advantage of the AFL’s compulsory powers to compel [Essendon] players and personnel to participate in the joint investigation, in circumstances where ASADA had no such compulsory powers”; “to provide information from the investigation to the AFL”; and “to enable the AFL to use that information for its own purposes … and not for the purposes of the Act and the Scheme”. The appellant’s senior counsel put the point slightly differently when he said that the extraneous purposes were: first, “that the AFL would share the fruits of the questioning” and the second, “the purpose of harnessing the AFLs compulsive powers”.
53 The appellant relied on various findings of the primary judge to support the proposition that one of ASADA’s actuating purposes was to make use of the AFL’s compulsory powers to supply a deficiency in its own powers; and, referring to various authorities, contended that this was not a non-trivial or insignificant purpose. The appellant argued that his Honour failed to address his own finding that the CEO of ASADA had more than one purpose “in making the agreement with the AFL and entering on the [j]oint [i]nvestigation”. As the appellant put it, the CEO of ASADA “made an arrangement with the AFL to side-step” its lack of coercive powers; and “[t]hat purpose informed the design of the investigation”, adding that “had it not been for what his Honour called the consideration of harnessing the AFL’s compulsory powers, ASADA would not have designed and carried through with this investigation in the way that it did, and that is sufficient to make it a substantial purpose, an extraneous purpose and, therefore, to vitiate the decision”.
54 In written submissions, the appellant added:
Similarly, the Judge failed to address the allegation that ASADA acted for extraneous purposes because it intended that the AFL would use the information it obtained from its participation in the investigation for its own disciplinary purposes, and not for the purposes of ASADA’s investigation of anti-doping violations.
…
Related to those matters, the Judge did not consider the lawfulness of an agreement that placed the AFL’s compulsory powers in ASADA’s hands, where Parliament had established ASADA as an independent investigator with no right to demand that its questions be answered by witnesses without any privilege against self-incrimination or exposure to a penalty. The Judge did not address that key aspect of the [a]ppellant’s case on extraneous purpose, but confined his attention to the conduct of the interviews once the AFL was in the interview room.
Third Submission
55 Thirdly, the appellant submitted that the primary judge should have concluded that the AFL’s presence in the interview room when ASADA questioned witnesses (by agreement between ASADA and the AFL) necessarily infringed s 71 of the ASADA Act. The appellant contended that s 71 required “case-by-case evaluation and decision on the part of … ASADA”; and that when s 71(2)(c) required the consent of the individual to whom the information related, the provision required “informed consent so that the affected person … knows the nature of the information that is to be disclosed and the identity of the intended recipient and also knows that consent is required”.
56 The appellant argued that this infringement of s 71 showed that ASADA had no power to permit the AFL to be present in the interview room while ASADA investigators conducted the questioning. The appellant’s senior counsel submitted that the error lay in the “immediate and unmediated disclosure to the AFL of information received by ASADA because the AFL was sitting there as the answers came in”. Senior counsel continued:
The primary judge said, “No, that’s not what happened. The answers came into the AFL, and the AFL then shared the answers with ASADA.” That can’t be a fair analysis of what happened given the design of the interviews and the interview process by ASADA alone.”
57 In this context, the appellant again emphasised that the effect of the primary judge’s findings was that the investigation was conducted by ASADA; and that that “[t]he notion that the AFL was conducting the investigation, received the information and allowed ASADA to share the fruits of interviews … ignores the facts, as found”. The appellant submitted that:
The Judge’s conclusions as to how and to whom the disclosure was made were a characterisation of established facts, evaluating the legal significance of the findings…[and] applying the Judge’s understanding of the legal framework to the findings. The evaluative conclusion that information was communicated directly to the AFL was wrong, having regard to the Act, the Scheme and ASADA’s power to investigate a possible [anti-doping rule violation].
58 Furthermore, under the rubric of infringing disclosure, the appellant challenged ASADA’s provision of transcripts of interview and other investigation material to the AFL, knowing that the information would be used by the AFL for disciplinary proceedings on governance grounds against Essendon (as well as ASADA’s use of the AFL’s powers to compel attendance at interview and answers to ASADA’s questioning).
Fourth Submission
59 Fourthly, the appellant argued that the primary judge erred in not finding that the CEO of ASADA acted unlawfully in facilitating the abrogation of the interviewees’ common law rights against self-incrimination or exposure to penalties, by engaging the AFL to participate in ASADA’s investigation. The appellant submitted that, in so doing, his Honour failed to have regard to his own finding that the CEO of ASADA permitted the AFL to be present in the interview room in order that ASADA could make use of the AFL’s powers to compel Essendon’s players and officials to answer questions and prevent them making privilege claims. Further, the appellant submitted that his Honour disregarded the CEO’s admission to this effect.
60 In written submissions, the appellant also argued that the primary judge’s observation that ASADA did not itself use any statutory power to compel attendance and answers was irrelevant to his case of illegality. The appellant explained that this was because “if cl 12.7 of the AFL [Anti-Doping] Code was invoked …, the Appellant and the players did not abandon their rights and privileges in an ASADA investigation, as opposed to an AFL investigation under cl 12.6”; and “[u]pon a proper construction of the AFL [Anti-Doping] Code: cll 4, 12.6 and 12.7; and the Scheme: cl 2.04(d) and (j); there was neither consent nor waiver by the [a]ppellant or the players under any contractual regime”.
61 In oral submissions at the hearing, senior counsel for the appellant added that:
If that [contractual] obligation … to the AFL [to answer questions in an investigation] … extended to the investigation that ASADA was conducting, it could not amount to a waiver of the interviewee’s privileges as against ASADA. It could be a waiver as against the AFL. Why would that be? Because ASADA could only take advantage of that waiver by stepping outside its statutory power, the limits on its statutory power, bringing the AFL into the investigation, and harnessing the AFL’s contractual powers as part of its investigation, as happened here. …
If we’re right, that the investigation was an ASADA investigation, that ASADA was limited and required to conduct that investigation itself, that the cooperation that it could seek from the AFL was not participating in the investigatory process, then what it did here was unauthorised, and unlawful. The bringing of the AFL into the investigation was unlawful. Its presence at the time of the interviews was unauthorised.
62 In written submissions, the appellant also argued that the primary judge’s approach was “at odds” with the principle of legality; and that his Honour erred “in using a contractual lens through which to view the submission that ASADA facilitated the abrogation of the interviewee’s common law right against self-incrimination by engaging the AFL to participate in ASADA’s investigation”. As senior counsel said at the hearing of the appeal, “[w]e say there is a particular mechanism, process set out in the [ASADA] Act and the [NAD S]cheme which did not extend … to requiring answers to question[s]”.
Fifth Submission
63 Fifthly, with respect to the show-cause notices, the appellant noted that, under cl 4.07A of the NAD Scheme, the notices to the 34 Players could only be issued after the CEO received evidence or information showing a possible anti-doping rule violation and submitted that it was implicit in cl 4.07A that that evidence or information must have been lawfully received. Bearing in mind the primary judge’s finding that the decision to issue the notices was based substantially on material obtained during the interviews conducted by ASADA and the AFL, the appellant argued that if he were correct about the unlawful conduct of the investigation, then the evidence or information derived from the interviews could not constitute evidence or information received for the purposes of cl 4.07 of the NAD Scheme; and the notices issued to the 34 Players under cl 4.07A of the NAD Scheme were invalid.
64 At the hearing, the appellant’s senior counsel put the point succinctly, saying:
This is what the Act authorised, namely an investigation without coercive power. ASADA stepped around that and brought the AFL in without any legal authority to do so in order to exploit its coercive powers. The information that was then acquired was infected by that illegality and to the extent that the next step, namely the issuing of the notices, was based on that information … [t]he issuing of the notices is infected as well. We say it’s implicit in clause 4.07A that the evidence or information referred to there is evidence or information received lawfully.
Sixth Submission
65 The appellant submitted that there was no occasion to consider discretionary matters affecting relief. He referred to Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 in support of the proposition that a decision made beyond power was in law no decision at all. He also referred to Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 in support of the proposition that a decision made in excess or abuse of statutory power was a nullity unless a contrary intention can be discerned in the legislation.
66 The appellant disputed his Honour’s finding that the AFL could separately and lawfully have compelled “the very same information”; and maintained, contrary to his Honour, that a useful purpose would be served by quashing the notices to show cause or by granting injunctive relief since the legal rights of the appellant and the 34 Players would be vindicated. The appellant submitted that the AFL “does not now have a power to obtain the same information and re-provide it”.
The respondent’s submissions
Response to the appellant’s Primary Submission
67 On the hearing of the appeal, senior counsel for the respondent submitted that the critical question was:
[D]id the ASADA Act and NAD Scheme authorise ASADA to be present in the [interview] room and to receive the information that the interviewees gave in answer to the questions asked of them, whether by the AFL or by ASADA, bearing in mind the absence of any exertion…[of] coercive authority by ASADA, the fact that the interviewees were informed up-front as to exactly the nature of the arrangements and what the asserted source of the obligation was, namely, the exertion of contractual authority and power by the AFL, with every opportunity given them to raise some resistance for objection and, as we submit, advertent and forensic decisions by them to fully cooperate.
(Emphasis added)
Senior counsel submitted that, if the receipt of the information was lawful, it cannot have been unlawful to enter into an agreement to facilitate that outcome.
68 The respondent contended at the hearing that the ASADA Act contemplated that SABs and ASADA would work in “very close lockstep”. The respondent submitted that:
[T]he extrinsic materials, international and domestic, made clear that, in fact, a design feature of the entire scheme was the very circumstance which obtained here – namely, that the sporting admin bodies would impose as contractual requirements [that] the sports participants would agree to participate in the sport, subject to compliance with the anti-doping regime. The scheme contemplated that the sporting admin bodies would give themselves powers to enforce those obligations, that they would have the authority to enforce the obligations, and that they would oblige the sports participants to fully cooperate with ASADA.
69 The respondent further submitted that:
[T]he NAD Scheme itself, pursuant to section 15, directly required the AFL in putting in place its own anti-doping policies and practices to do so in a manner that ensured that, at all times, it had the authority to enforce its anti-doping policy. … [W]hat we know here is that the AFL chose to fulfil that obligation by putting in place incredibly robust contractual arrangements of the kind that the appellant accepted obliged him to attend the joint interviews and to answer questions asked of him by the AFL and ASADA. That was one aspect of the AFL’s Anti-Doping Code and Player Rules by which it chose to fulfil the obligation of ensuring that, at all times, it had the authority to enforce its anti-doping policy and, of course, the anti-doping policy would ordinarily deal with how the sporting administration body – in this case, the AFL – would go about discharging its investigative function under the rules.
70 Close control by SABs over their sports participants and close cooperation between SABs and regulatory agencies was, so the respondent submitted, an acknowledged feature of the international instruments and other extrinsic materials relevant to the construction of the statutory scheme. The respondent noted that the CEO of ASADA was required to approve the rules adopted by a SAB in fulfilment of its obligations under the ASADA Act and NAD Scheme. This was, so the respondent submitted, an indication of the “lockstep partnering” between a SAB and ASADA contemplated by the statutory scheme.
71 The respondent submitted that, so far as the interviews were concerned, ASADA was exercising the general investigative function under cl 3.27 of the NAD Scheme, “complemented by the power to do anything necessary or conducive in connection with the performance of that function” under s 22 of the Act. Whilst accepting that s 22 could not support an interference with fundamental general law rights, the respondent distinguished Anthony Lagoon and emphasized the breadth of the power.
72 The respondent contended that the appellant’s argument – that the AFL had no power to conduct an investigation post-referral to ASADA and therefore the AFL had no power to participate in the investigation – had not been agitated before the primary judge. The respondent submitted that the appellant should not be permitted to “reupholster” his case on appeal. Senior counsel for the respondent added that:
If the appellant is now seeking to say 12.6 means something different, and 12.7 means something different, he would have been vigorously tested on cross-examination in relation to matters, and ASADA would have exercised the right to adduce evidence in relation to those matters.
73 In any event, so the respondent argued, the appellant’s argument was in error. In written submissions, the respondent maintained:
Freedom of contract, and the general law's recognition that governing bodies such as the AFL should have the right to stipulate conditions for participation in their sports (including in relation to investigations into suspected wrongdoing by participants) reflect fundamental freedoms, principles, and values which are protected at common law. The Act and NAD scheme do not express or evince any intention (let alone with unmistakable clarity) that sporting administration bodies would automatically lose the power/right to investigate suspected wrongdoing by a contracted player or support person once a matter was referred to ASADA for investigation.
Indeed, there are many indications to contrary effect in the Act and NAD scheme: see ss 15(1) and (2)(a)-(c) and 21(1)(j) of the Act and cll 2.03(2), 2.04(a), (b), (c), (h), and (n) of the NAD scheme which contemplate (i) enforcement by sporting administration bodies of their rules and policies; (ii) ongoing investigative cooperation; and (iii) in the case of cl 2.04(c), the possession and exercise of enforcement authority by a sporting administration body ‘at all times’ (which would be impossible or very difficult absent a facility for post-referral investigation); s 68(7) which defines ‘permitted anti-doping purpose’ of a sporting administration body to include ‘investigating possible breaches of a current policy of the body about drugs and/or doping methods’ and determining whether, and what, action to take under such a policy; cl 2.04(e) which expressly contemplates provision of information by sporting administration bodies to ASADA ‘related to investigations’; cl 4.21 which contemplates provision of information by ASADA to sporting administration bodies (and other investigative entities) for the obvious purpose of facilitating their investigations. …
The [a]ppellant's construction depends upon a strained meaning of the word 'refer' in cl 2.04(j) … The [a]ppellant's reliance upon cl 2.04(i) is also misplaced. The language of cl 2.04(i) requires that a sporting administration body not resist/oppose the operations of ASADA – it does not require cessation of all and any investigations, let alone an investigation which ASADA considers is consonant with, and facilitative of, the anti-doping purposes underpinning the Act and NAD scheme.
74 Referring to Taylor v The Owners – Strata Plan No 11564 (2014) 88 ALJR 473 (Taylor’s Case), the respondent contended that the appellant’s reliance on Plaintiff S4/2014 was misplaced and that there was no warrant for reading the relevant provisions as impliedly excluding either the AFL’s power to continue to investigate after a referral to ASADA or the possibility of “close and ongoing investigative cooperation as between ASADA and the AFL”. In this connection, the respondent submitted that the “international instruments implemented by the Act and NAD scheme, and other extrinsic materials” recognised an ongoing investigative role for sporting administration bodies; and that the appellant’s proposed construction was antithetical to the purposes of the ASADA Act and the NAD Scheme.
75 The respondent also contended that the effect of the contractual arrangements between Mr Hird and the 34 Players on the one hand and the AFL on the other was not in issue before the primary judge because the appellant had accepted that he and the 34 Players were, at all material times, subject to the lawful exercise of the AFL’s investigative powers, including the AFL’s powers to compel the provision of information to it and to ASADA at the interviews. This argument was, so the respondent said, “never run”.
76 Senior counsel for the respondent observed that:
[A]ll of the grounds contained in the judicial review application before his Honour … were predicated on the fact that the AFL did possess the contractual powers and the exercise of them, the lawful exercise of them put the players in the position where they were obliged to answer questions.
Elsewhere he said that:
[N]o issue was drawn in that regard at the trial and, indeed, the appellant conducted the trial on the basis that all of what the AFL did was lawful and none of it was in dispute. That is, it was conceded that the AFL did, in fact, possess the contractual powers and itself was entitled to exercise those powers, including by reference to the presence or attendance of the ASADA representatives, “But”, said the appellant, “at the other end of the equation, it was ASADA that lacked any power to be present.”
He also affirmed that “had the appellant put the existence and availability of the contractual powers in issue, the AFL would have had to have been a party to the proceedings, and the obligation rested with the appellant in the trial below to properly constitute the proceedings”.
77 The respondent contended that it was not open to the appellant to resile from the position that he had adopted at trial, noting that the meaning and effect of the AFL’s Anti-Doping Code and other aspects of the relevant contractual arrangements could have been the subject of further evidence if the issue had been raised at trial, “including evidence of circumstances surrounding the entry into of the contractual arrangements, including evidence of facts known to both parties, evidence of matters generally understood in the industry, evidence of shared understandings and the like”.
78 In any event, so the respondent submitted, under the AFL’s Anti-Doping Code (to which Mr Hird and the players had acceded), the AFL had the relevant powers, including to compel attendance at interviews and to answer its and ASADA’s questions. Senior counsel for the respondent argued that “[t]hat [C]ode, combined with [r 1.5A(a)] of the Player Rules, which also demanded compliance – the contractual arrangements in total represent the AFL’s adoption of what the [NAD] [S]cheme refers to as anti-doping policies and practices in fulfilment of the requirement of the legislative scheme”. Senior counsel added that:
[T]here are a great many textual indications of a legislative intent in favour of very, very close cooperation between sporting administration bodies at a national level, such as the AFL and ASADA, including of a kind which permitted ASADA to receive the benefit of the exercise of the AFL’s contractual authority. We say those things are, in fact, contemplated by the scheme.
Response to the appellant’s Second Submission
79 The respondent contended that if ASADA’s conduct of the investigation was lawful, then ASADA’s participation in the investigation “could not possibly involve pursuit of extraneous purposes”. The respondent submitted that “ASADA's purpose(s) for participating in the joint investigation was a question of fact, as was the status of any purpose as ‘actuating’ or ‘non-actuating’ ”; and that the appellant’s submission that an actuating purpose was to enable the AFL to use the information for its own disciplinary purposes was contrary to the facts as found by the primary judge. In oral submissions, the respondent submitted that it was an error to conflate an absence of coercive power with an implied prohibition against obtaining the information in question by other means; and that the appellant’s argument as to improper purpose contained this error.
Response to the appellant’s Third Submission
80 In response to the appellant’s Third Submission, the respondent contended that the AFL was not a “third party” at the interviews because the interviews took place pursuant to the exercise of the AFL's contractual powers and, from the AFL’s perspective, to obtain information for the purposes of enforcing its own Player Rules. The respondent emphasized that Mr Hird and the players knew, from the outset, that representatives of the AFL and ASADA would be present at the interviews and ask questions and that their obligation to cooperate was a contractual one owed to the AFL.
81 The respondent drew attention to the findings of the primary judge that: (1) Mr Hird and the 34 Players provided the information to the AFL and ASADA by answering questions in the same room as representatives of both ASADA and the AFL; (2) the information provided at the interviews by Mr Hird and the 34 Players was simultaneously communicated to representatives of the AFL and ASADA; and (3) ASADA was not communicating, nor divulging that information to the AFL. The respondent submitted that these findings were “amply supported by evidence concerning the facts and circumstances surrounding the interviews” and led to the conclusion that s 71 of the ASADA Act and cl 4.21 of the NAD Scheme were not engaged. At the hearing the respondent’s senior counsel said:
[T]he short point we were contending for was that his Honour was correct in finding, by reference to the facts and circumstances surrounding the joint interviews, that there was, in fact, no disclosure of interview answers by ASADA to the AFL and therefore there was no contravention of the two provisions governing secrecy, namely clause 4.21 of the scheme and section 71 of the Act.
82 In any event, so the respondent argued, even if s 71 and cl 4.21 were engaged, any disclosures were for the purposes of the ASADA Act and NAD Scheme. The respondent submitted that ASADA was authorised under the legislative scheme to disclose information (including investigative material) to the AFL for the purpose of enabling the AFL to consider, and decide, whether to take disciplinary action to enforce its anti-doping policy and, if it did so decide, to enforce proper standards of behaviour at Essendon.
Response to the appellant’s Fourth Submission
83 The respondent contended that the findings made by the primary judge were based on the evidence before him and that these findings made the appellant’s Fourth Submission as to the abrogation of privileges untenable. The respondent highlighted the primary judge’s findings that at no stage did ASADA purport to compel the provision of answers to it and that there was no suggestion Mr Hird or any player did not understand the legal framework surrounding the interviews. In written submissions, the respondent emphasized that, in respect of ASADA's investigation as signified by its presence at the interviews, Mr Hird and the players: (1) invoked no right or privilege; (2) raised no objection to the presence of ASADA (or the AFL) at the interviews; and (3) chose to answer the questions addressed to them.
84 At the hearing of the appeal, the respondent’s senior counsel submitted that:
[T]o the extent that the contractual arrangements weren’t apt to oblige the answers to be given, ASADA was entitled to ask them, and the appellant and the interviewees could have but did not decline to answer. There was no interference by ASADA with any privilege against self-incrimination which existed and was available to the interviewees or which was asserted by them.
The respondent contended that, in the circumstances as found by the primary judge, the players and Mr Hird had at their interviews waived the privileges against self-incrimination and exposure to penalties. Senior counsel for the respondent maintained that:
[E]ven assuming every intermediate step against ASADA, namely that this was, in fact, an exertion of contractual powers which the AFL didn’t possess, or which they lost post-referral to ASADA, or somehow was the product of a misrepresentation by the AFL, and so on and so forth, the fact is the interviewees had their own solicitors present – their own counsel – very often, Mr Hird represented at the joint interview by a senior counsel and solicitors, and ignorance of the law has never ever been regarded as undoing the effect of a waiver of any privileges which, as a matter of law, arises from the giving of answers to the questions asked.
85 In written submissions, the respondent submitted that the appellant’s case concerning unlawful abrogation “really comes down to an assertion that ‘what cannot be done directly, cannot be done indirectly’” and argued that an absence of power directly to compel the provision of particular information did not amount to a direct or indirect prohibition against the acquisition of that information by other means.
Response to the appellant’s Fifth Submission
86 In response to the appellant’s Fifth Submission, the respondent maintained that there is no rule of law (or legal principle) to the effect that any administrative act or decision which relies upon unlawfully obtained evidence is thereby rendered invalid; and that there was no warrant to read into cl 4.07A of the NAD Scheme an implied stipulation that the evidence or information must have been lawfully obtained.
Response to the appellant’s Sixth Submission
87 The respondent contended, in response to the appellant’s Sixth Submission on relief, that the appellant had overlooked the fact that, ultimately, “the proceedings concerned the lawfulness … of evidence obtained by ASADA” (emphasis original). The senior counsel for the respondent contended that:
The appellant’s resort to jurisdictional error, and ultra vires and things being nullities … is unsustainable. If the information was unlawfully acquired, then that doesn’t render it a nullity. One doesn’t pretend the information doesn’t exist. One then asks, “Well, in light of the unlawfulness, should it be taken into account and, if so, what weight should be attached to it.”
The respondent further contended that, even if unlawfully obtained, “downstream decision-makers” should be permitted to consider the information and determine for themselves what use they should make of it.
88 The respondent submitted that the appellant did not assert at first instance that the AFL could not obtain and re-provide the same information. The respondent said “[a] suggestion that somehow the evidence is tainted in the AFL’s hands was never part of the pleaded case before the trial judge”. The respondent also submitted that, since the AFL retained a post-referral investigative power, the AFL could re-exercise its contractual powers and re-provide the same information to ASADA. In any event, so the respondent said, ASADA could now exercise the statutory powers that have since been conferred on it, in order to compel production of the interview transcripts held by the AFL and others. The respondent submitted that these considerations militated against the grant of a permanent injunction. The respondent contended that the appellant’s complaint was made belatedly; that he had cooperated in the interview process, without reserving his position, and that, having regard to this and the approach favoured by the 34 Players, even if the appellant were otherwise to make out his case, relief should be refused on discretionary grounds.
89 Also on the question of relief, the respondent sought to rely upon an affidavit of Craig Rawson affirmed on 31 October 2014. At the hearing, the appellant objected to parts of the affidavit and, in consequence, the respondent did not read all of it. A dispute remained about paragraphs [9]-[16], which we indicated we would consider subsequently. These paragraphs referred to statements from representatives of the 34 Players and Essendon, which according to the respondent showed that the 34 Players and Essendon were content to rely upon the outcome of the primary judge’s decision and now wanted the determination of possible anti-doping rule violations to proceed. The respondent submitted that this consideration militated against the grant of relief. The appellant contended, however, that none of these statements were relevant to the question of relief. In light of our conclusion that the appellant failed to establish that the primary judge erred in rejecting his challenge to the lawfulness of the investigation, it is unnecessary for us to consider the question of relief and therefore to consider whether the challenged parts of Mr Rawson’s affidavit bear on that question at all.
Notice of Contention
90 The respondent argued that the primary judge was wrong to take the view that, if he had found the investigation to have been unlawful, then some of the public policy considerations and other matters on which the respondent relied did not tell against the grant of relief. Having regard to the conclusions that we have reached on the principal issues in this appeal, it is unnecessary to deal with the issues raised by the respondent’s notice of contention, or to set out the parties’ respective submissions on the notice of contention.
consideration
91 The facts as found by the primary judge were not in dispute, although the appellant challenged his Honour’s characterisation of their effect. Aside from the questions of characterisation (discussed hereafter), the resolution of this appeal depends on the proper construction of the ASADA Act and the Australian Sports Anti-Doping Authority Regulations 2006 (Cth) (2006 Regulations), including the provisions of the NAD Scheme.
92 We commence our consideration of the appellant’s Primary Submission, that the ASADA Act did not authorise ASADA to conduct an investigation in the way it did, by reference to the statutory text: see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 (Alcan) at 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39]; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378 at 389-390 [25]; Kline v Official Secretary to the Governor-General (2013) 249 CLR 645 at 659-660 [32]; Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523 at 539-540 [47]; and Thiess v Collector of Customs (2014) 250 CLR 664 at 671-672 [22]-[23]. As the plurality said in Alcan at 46-7 [47]:
[T]he task of statutory construction must begin with a consideration of the text itself. … The language of … the legislation is the surest guide to legislative intention.
The ASADA Act
93 The legislation with which the Court is presently concerned commenced operation on 13 March 2006. For present purposes, we are not concerned with the amendments to the ASADA Act and the 2006 Regulations effected from 1 August 2013 by the Australian Sports Anti-Doping Authority Amendment Act 2013 (Cth) and the Australian Sports Anti-Doping Authority Amendment Regulation 2013 (No 1) (Cth) respectively, because they took effect after the investigatory interviews and other acts involving the collection of evidence. No party suggested that the amendments effected from 1 August 2013 were relevant and, accordingly, the following discussion relates to the ASADA Act and the 2006 Regulations as they stood before 1 August 2013.
94 As will appear, the relevant provisions of the ASADA Act were straightforward enough. The difficulties in construing these provisions do not arise from what the Act says. Instead, they arise from what the Act does not say.
ASADA and the CEO
95 As already noted, the ASADA Act (in Pt 3) established ASADA and provided that ASADA consisted of the CEO and the ASADA staff: ASADA Act, ss 20 and 20A. Under the ASADA Act, ASADA’s sole function was to assist the CEO in the performance of his or her functions: s 20B.
96 Part 3A of the ASADA Act was entitled “Chief Executive Officer”. Division 1 of Pt 3A concerned the CEO’s functions and powers. The CEO had the numerous functions set down in s 21 within Pt 3A.
97 At the relevant time, s 21(1) provided (in part):
(1) The CEO has the following functions:
(a) such functions as are conferred on the CEO by Part 2;
(b) such functions as are conferred on the CEO by the NAD scheme;
…
(f) to support and encourage the sporting community to develop and implement comprehensive programs, and education initiatives, about sports doping and safety matters;
…
(h) to collect, analyse, interpret and disseminate information about sports doping and safety matters;
(i) to encourage the development of ways for the States and Territories, and sporting organisations, to carry out initiatives about sports doping and safety matters;
(j) to cooperate with the States and Territories, and with sporting organisations, to carry out initiatives about sports doping and safety matters;
…
(m) such other functions as are conferred on the CEO by this Act or any other law of the Commonwealth;
…
(o) to do anything incidental to or conducive to the performance of any of the above functions.
98 Part 2 of the ASADA Act, referred to in s 21(1)(a), was headed “National Anti-Doping Scheme” (elsewhere, the NAD Scheme). Division 1 of Pt 2 dealt with the making and amending of the NAD Scheme; whilst Div 2 of Pt 2 dealt with “What must be in the NAD Scheme”. Provisions of Pt 2 are discussed further below.
99 As to the powers of the CEO of ASADA, s 22 provided:
The CEO has the power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.
100 Division 4 of Pt 3A concerned “ASADA’s staff etc” and included s 24M. Section 24N was in Div 5, headed “Delegation”. These two provisions provided:
24M Persons assisting the CEO
The CEO may be assisted:
(a) by officers and employees of Agencies (within the meaning of the Public Service Act 1999); or
(b) by officers and employees of authorities of the Commonwealth; whose services are made available to the CEO in connection with the performance of any of his or her functions.
…
24N Delegation by the CEO
(1) The CEO may, by writing, delegate any or all of his or her functions and powers to:
(a) a member of the ASADA staff; or
(b) an individual whose services are made available to the CEO under section 24M; or
(c) an individual appointed as a chaperone, or as a drug testing official, under the NAD scheme.
(2) Subsection (1) does not apply to the power to make a legislative instrument amending the NAD scheme.
(3) Paragraph (1)(c) does not apply to a function or power unless it is conferred by the NAD scheme.
(4) A delegate must comply with any written directions of the CEO.
Restrictions on the dissemination of information
101 Part of the appellant’s case on appeal relied on the provisions of Pt 8, entitled “Information management”, which included ss 69 and 71. Section 71 relevantly read as follows:
71 Protection of NAD scheme personal information
(1) A person commits an offence if:
(a) the person is or was an entrusted person; and
(b) when the person was an entrusted person, the person obtained NAD scheme personal information; and
(c) the person discloses the information to someone else.
Penalty: Imprisonment for 2 years.
(2) Each of the following is an exception to the prohibition in subsection (1):
(a) a disclosure for the purposes of this Act;
(b) a disclosure for the purposes of the NAD scheme;
(c) a disclosure with the consent of the individual to whom the NAD scheme personal information relates;
(d) a disclosure to the individual to whom the NAD scheme personal information relates;
…
(g) a disclosure prescribed by the regulations.
…
(3) If a disclosure of NAD scheme personal information is covered by subsection (2), the disclosure is authorised by this section.
…
102 Section 69 defined an “entrusted person” as, amongst other things, the CEO, a member of the ASADA staff, a person engaged by the Commonwealth to perform services for the CEO, or an individual whose services are made available to the CEO under s 24M.
Statutory provisions regarding the NAD Scheme
103 As already noted, the NAD Scheme was dealt with in Pt 2 of the ASADA Act. Section 9 concerned the making of the NAD Scheme and provided as follows:
9 Making the National Anti-Doping Scheme
The regulations must prescribe a scheme about any or all of the following matters:
(a) the implementation of the General Anti-Doping Convention;
(b) if the UNESCO Anti-Doping Convention has entered into force for Australia—the implementation of that Convention;
(c) ancillary or incidental matters.
Note: For NAD scheme or National Anti-Doping Scheme, see section 4.
104 The “General Anti-Doping Convention” is the Anti-Doping Convention, done at Strasbourg on 16 November 1989, [1994] ATS 33 (entered into force 1 March 1990) (General Anti-Doping Convention): see ASADA Act, s 4. (The General Anti-Doping Convention is the same as the Council of Europe Anti-Doping Convention, opened for signature on 16 November 1989, CETS No 135 (entered into force 1 March 1990): see 2006 Regulations, Sch 2, Item 1). Australia signed the General Anti-Doping Convention on 24 April 1994, acceded to the Convention on 5 October 1994 and it entered into force for Australia on 1 December 1994. The “UNESCO Anti-Doping Convention” is the International Convention Against Doping In Sport, adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) at Paris on 19 October 2005, 2419 UNTS 201 (entered into force 1 February 2007) (UNESCO Anti-Doping Convention): see ASADA Act, s 4; 2006 Regulations, Sch 2, Item 3. The UNESCO Anti-Doping Convention entered into force for all signatories including Australia on 1 February 2007.
105 Section 4 of the ASADA Act provided that:
NAD scheme or National Anti-Doping Scheme means:
(a) the scheme prescribed for the purposes of section 9; or
(b) if the scheme has been amended under section 10—the scheme as so amended.
106 Section 13 of the ASADA Act (augmented by s 15 and other provisions in Div 2 of Pt 2) set out what must be in the NAD scheme. Section 13 relevantly provided:
13 Anti-doping rules etc. relating to certain athletes and support persons
(1) The NAD scheme must:
(a) provide that one or more specified classes of athletes and support persons are subject to the NAD scheme; and
(b) contain rules (the anti-doping rules) applicable to athletes and support persons; and
…
(f) authorise the CEO to investigate possible violations of the anti-doping rules; and
(g) authorise the CEO to disclose information obtained during such investigations for the purposes of, or in connection with, such investigations;
…
107 Section 15 related to the inclusion in the NAD Scheme of “Sporting administration body rules” and was in the following terms:
15 Sporting administration body rules
(1) The NAD scheme must:
(a) contain rules (the sporting administration body rules) that:
(i) are applicable to one or more specified sporting administration bodies; and
(ii) relate to the anti-doping rules; and
(b) authorise the CEO to monitor the compliance by sporting administration bodies with the sporting administration body rules; …
(2) The following are examples of sporting administration body rules:
(a) rules about promoting compliance with the anti-doping rules by athletes and support persons;
(b) rules about referring possible violations of the anti-doping rules to the ASADA;
(c) rules about assisting, and giving information to, the ASADA in relation to investigations of possible violations of the anti-doping rules;
….
The 2006 Regulations and the NAD Scheme
108 Pursuant to the ASADA Act, the 2006 Regulations prescribed the NAD Scheme in Sch 1: see reg 3.
109 The NAD Scheme consisted of Pts 1 to 6. Part 1, headed “Preliminary”, read as follows:
1.01 Overview
This instrument establishes the NAD scheme for section 9 of the Act, which is a scheme about the following matters:
(1) the implementation of the General Anti-Doping Convention;
(2) the implementation of the UNESCO Anti-Doping Convention, in particular Article 3(a) which obliges States Parties to adopt appropriate measures consistent with the principles of the World Anti-Doping Code;
(3) ancillary or incidental matters.
110 The terms of cl 1.01 made it plain that the NAD Scheme was intended to give effect to the General Anti-Doping Convention and the UNESCO Anti-Doping Convention (in particular Art 3(a) pursuant to which States Parties are obliged to adopt appropriate measures consistent with the principles of the World Anti-Doping Code). The World Anti-Doping Code was adopted by the Foundation Board of the World Anti-Doping Agency (WADA) on 5 March 2003 at Copenhagen (WADA Code): see ASADA Act, s 4. WADA was established following a resolution by the World Conference on Doping in Sport convened by the International Olympic Committee in Lausanne in February 1999: see ASADA Act, s 4. We return hereafter to these international instruments (and to the International Anti-Doping Arrangement: see [114] below).
111 Also in Pt 1, cl 1.02 provided that ASADA had the following functions under the NAD Scheme:
(1) Without limiting the functions conferred on ASADA by specific provisions of the Act and any other provision of the NAD scheme, ASADA is authorised to exercise the following powers and functions:
(a) planning, implementing, evaluating and monitoring education and information programs for doping-free sport for all participants;
Note This is in addition to the function conferred by paragraph 21 (1) (f) of the Act.
…
(c) having the role and responsibility of a National Anti-Doping Organisation for Australia under the UNESCO Anti-Doping Convention and the World Anti-Doping Code, including performance of functions internationally that relate to that role and responsibility;
(d) providing services relating to sports drug and safety matters to a sporting administration body in accordance with contractual arrangements with the body on behalf of the Commonwealth;
…
(g) functions about performance of activities relating to sports drug and safety matters referred to ASADA by a sporting administration body.
(2) Anything done under a contractual arrangement in performance of a function mentioned in subclause (1) is taken to be done under the NAD scheme.
(3) Anything done in performance of a function mentioned in subclause (1) is taken to be done under the NAD scheme even if it could have been done under the Act.
112 Clause 1.03 authorised ASADA to exercise certain powers. It provided that:
Exercise of powers in relation to requests from sporting administration bodies
(1) ASADA is authorised to exercise powers under the NAD scheme in order to cooperate with a request from a sporting administration body if the request is reasonably necessary to enforce or give effect to the World Anti-Doping Code and other relevant international anti-doping instruments.
Exercise of powers in relation to requests to sporting administration bodies
(2) ASADA is authorised to use information about an athlete or support person that is given to ASADA by a sporting administration body as if it were information that was obtained by an investigation by ASADA under the NAD scheme if ASADA requested the sporting administration body to provide, or obtain and provide, the information.
Note Regulation 4 of the Australian Sports Anti-Doping Authority Regulations 2006 prescribes additional relevant international anti-doping instruments for the Act.
113 Clause 1.03B further provided that:
In exercising powers for the NAD scheme and making recommendations, the CEO … must have regard to:
(a) the World Anti-Doping Code (including the comments annotating various provisions of the World Anti-Doping Code); and
(b) other relevant international anti-doping instruments.
Note Regulation 4 of the Australian Sports Anti-Doping Authority Regulations 2006 prescribes additional relevant international anti-doping instruments for the Act.
114 Besides the General Anti-Doping Convention and the UNESCO Anti-Doping Convention, the additional prescribed international instrument was the International Anti-Doping Arrangement, signed by Australia on 18 April 1996 (International Anti-Doping Arrangement): see ASADA Act, s 12; 2006 Regulations, reg 4 and Sch 2.
115 By virtue of cll 1.06(1) and 1.07 of the NAD Scheme, the anti-doping rules (which are the rules set out in cl 2.01: cl 1.05) applied to all persons who are involved as either athletes or support persons in a sport with an anti-doping policy; and such persons are subject to the NAD Scheme. The AFL was one such sport. Mr Hird was a support person, as defined in cl 1.07(2).
116 Part 2 of the NAD Scheme set out the anti-doping rules. Division 2.1 concerned “Anti-doping violations”; and Div 2.2. concerned the “Sporting Administration Body Rules”. Certain provisions in Div 2.2 are directly relevant to this appeal.
117 Whilst not directly relevant to this appeal, cl 2.01 stipulated that “[a]thletes and support persons are responsible for knowing what constitutes an anti-doping rule violation and the substances and methods that have been included on the prohibited list”.
118 Division 2.2 consisted of cll 2.03 to 2.04. For these purposes, cl 2.02 defined a “sporting administration body” as “a national sporting organisation for Australia”, such as the AFL. Clause 2.03, headed “Sporting administration body rules – powers of ASADA”, relevantly provided:
(1) For subsection 15(1) of the Act, the sporting administration body rules mentioned in Schedule 1 apply to all sporting administration bodies.
(2) ASADA is authorised:
(a) to monitor the compliance by sporting administration bodies with the sporting administration body rules; …
119 Clause 2.04, headed “Sporting administration body rules”, is particularly important. For this reason it is set out in full:
A sporting administration body must:
(a) at all times have in place, maintain and enforce anti-doping policies and practices that comply with:
(i) the mandatory provisions of the World Anti-Doping Code and International Standards; and
(ii) the NAD Scheme; and
(b) not adopt its anti-doping policy unless it has been approved by ASADA or not substantively amend its anti-doping policy unless the amendment has been approved by ASADA; and
(c) ensure that at all times it has the authority to enforce its anti-doping policy; and
(d) immediately inform ASADA of an alleged breach of its anti-doping policy and cooperate with any investigation into the matter; and
(e) provide to ASADA appropriate details or reports related to investigations, hearings, appeals and sanctions; and
(f) provide ASADA with relevant information in a timely manner, including sporting administration body and International Federation anti-doping policies, policy amendments, policy endorsement and implementation date, athlete whereabouts information, athlete education, information relating to events and camps, lists of athletes subject to anti-doping policies and advice relating to athletes in ASADA’s registered testing pool and domestic testing pool; and
(g) ensure that other rules and regulations of the sport do not override the provisions of its anti-doping policy; and
(h) comply with, implement and enforce its anti-doping policy to the satisfaction of ASADA; and
(i) submit to the operations of ASADA; and
(j) refer all instances of possible anti-doping rule violations to ASADA for investigation and cooperate with any investigation, as required; and
(k) allow ASADA to present anti-doping cases at hearings unless ASADA has approved the sporting administration body presenting its own case; and
(l) recognise ASADA as having a right to appeal decisions relating to anti-doping cases, including in cases ASADA has not presented the anti-doping case at the hearing; and
(m) accept findings by the ADRVP, act on findings by the ADRVP, ensure that a notice of an alleged anti-doping rule violation is issued in accordance with a recommendation made by the ADRVP, and enforce sanctions imposed by a sporting tribunal; and
(n) ensure that its members and staff cooperate with ASADA; and
(o) promote information, education and other anti-doping programs in accordance with the World Anti-Doping Code and as requested by ASADA; and
(p) comply with any other conditions relating to anti-doping and notified to it by the ASC that the ASC is required by legislation or by ASADA to require from sporting organisations to which the ASC provides funding, services and support.
120 Part 3 of the NAD Scheme dealt with “Testing and Investigating”. Only Div 3.5, headed “Investigations”, is of direct relevance. Division 3.5 consisted only of cl 3.27, which read as follows:
(1) For paragraph 13 (1) (f) of the Act, ASADA is authorised to investigate possible anti-doping rule violations that may have been committed by athletes or support persons.
(2) An investigation must comply, or substantially comply, with the procedures mentioned in:
(a) the World Anti-Doping Code; and
(b) the International Standards; and
(c) the Australian Government Investigations Standard.
(3) A failure to comply with those procedures does not affect the validity of the investigation.
It was not suggested that there had been any failure in the present case to comply with the procedures to which cl 3.27(2) referred.
121 Other provisions of the NAD Scheme dealt with the aftermath of an investigation, including cl 4.07A providing for notification of a possible non-presence anti-doping rule violation and cl 4.08 establishing a Register of Findings. Other provisions related to the disclosure of information, including about potential entries on the Register and non-entry information: see cll 4.19-4.22.
Primary Submission considered: whether ASADA had power to conduct its investigation with the AFL as it did
122 Broadly speaking, the functions conferred on the CEO by the ASADA Act and the NAD Scheme were directed to the prevention of doping in sport by various means (including education, monitoring a SAB’s compliance with the sporting administration body rules, cooperating with a SAB’s request if necessary to give effect to the WADA Code, approving a SAB’s anti-doping policy etc.) and to the investigation of possible anti-doping rule violations. There was also provision for consequential action: see, for example, paragraph [121] above. These functions were both specific (e.g., ss 21(1)(f) and (h)), general (e.g., ss 20B and 21(1)(m)) and broad (e.g., ss 21(1)(j) and (o)).
123 The NAD Scheme itself had a firm statutory basis, including in ss 9, 13 and 15 of the ASADA Act. In conformity with that Act, the NAD Scheme set down the anti-doping rules contemplated by s 13 and the sporting administration body rules envisaged by s 15. In particular, in conformity with s 15(1)(a), cl 2.03 provided that the sporting administration body rules applied to all sporting administration bodies, which included the AFL. The AFL was therefore required to comply with the sporting administration body rules stated in cl 2.04.
124 Plainly enough, the functions of ASADA and the CEO were intertwined (cf: ASADA Act, ss 20A and 20B). Nothing turns on the fact that cl 3.27 of the NAD Scheme in terms conferred investigatory authority on ASADA, rather than the CEO: under s 20A of the ASADA Act, ASADA included the CEO and, under s 20B of the ASADA Act, the statutory function of ASADA was to assist the CEO: compare ASADA Act, s 13(1)(f) and cl 3.27 of the NAD Scheme. Consistently with s 13(1)(f), the conferral of authority on “ASADA” by cl 3.27 of the NAD Scheme should be read as a conferral of authority on the CEO. Unless otherwise indicated, when we refer to “ASADA” hereafter, we too mean the CEO.
125 Our analysis of the appellant’s Primary Submission, that the “joint” or cooperative investigation was ultra vires the governing legislative regime, is divided into consideration of the following issues:
(1) the nature of the investigation conducted by ASADA and by the AFL, including:
(a) ASADA’s authority to investigate possible anti-doping rule violations;
(b) whether ASADA’s investigation was cooperative with, or independent of, a SAB;
(2) the relevance of the General Anti-Doping Convention, the UNESCO Anti-Doping Convention, the WADA Code and the International Anti-Doping Arrangement;
(3) the operation of cl 2.04(j) of the NAD Scheme and the AFL’s contractual regime;
(4) whether ASADA could legitimately benefit from the AFL’s use of its compulsory powers, including:
(a) the significance of ss 24M and 24N of the ASADA Act;
(b) the significance of the non-disclosure provisions in s 71(1) of the ASADA Act and cl 4.21 of the NAD Scheme;
(c) the asserted loss of the common law rights against self-incrimination or exposure to civil penalty;
(d) the scope and operation of the power granted by s 22 of the ASADA Act; and
(e) the asserted absence of an express finding about the statutory basis for ASADA’s investigation.
126 A consideration of the above issues leads us to reject the appellant’s Primary Submission and to conclude that the investigation conducted by ASADA in cooperation with the AFL was authorised by the ASADA Act, the 2006 Regulations and the NAD Scheme.
1. Nature of the investigation conducted by ASADA and by the AFL
127 Before considering the question of power in greater detail, it is helpful to clarify the nature of the investigation with which we are concerned. As outlined earlier, the appellant argued that ASADA “ran the joint investigation” and that the investigatory interviews were properly characterised as interviews conducted by ASADA in the course of an ASADA investigation, rather than interviews by the AFL for an AFL enquiry, referring (amongst other things) to ASADA’s role in drafting notices to witnesses, directing Deloitte regarding document searches, preparing interview plans, determining the identity and order of witnesses, conducting the interviews themselves, obtaining and providing transcripts, and the fact that an extract of Div 137 of the Commonwealth Criminal Code was included in the information sent to witnesses. On the appellant’s characterisation of the investigation, the AFL was a participant merely because ASADA wanted to use, and used, the AFL’s coercive powers deriving from the AFL’s contractual arrangements with clubs and players.
128 The respondent on the other hand submitted that the primary judge found that ASADA and the AFL conducted separate investigations for their own distinct but complementary and overlapping objectives; and in the course of these investigations, ASADA and the AFL cooperated closely with one another and subsequently made separate decisions within their own complementary areas of responsibility.
129 The submission of the respondent should be accepted. As mentioned already, the primary judge specifically held that, while ASADA was conducting an investigation into possible anti-doping rule violations, the AFL was conducting its own enquiries, including in the interviews, for the purpose of enforcing the AFL’s Player Rules: PJ, [400]. This finding flowed from his Honour’s previously stated findings that: (1) the AFL worked cooperatively with ASADA; (2) ASADA and the AFL cooperated in the day to day investigatory process, including with respect to strategy, financial and personnel resources, and (3) ASADA and the AFL cooperated in the conduct of the interviews: PJ, [256(k)-(m)]. Indeed, so his Honour found ([256](m)]), the investigation “required co-ordination between ASADA and the AFL” (emphasis added). In this regard, his Honour referred to gathering physical evidence, preparing documents and arranging interviews. The primary judge also found (PJ, [256(p)]) that:
The investigation undertaken by ASADA in co-operation with the AFL in fact resulted in both ASADA and the AFL each making two separate and distinct decisions within their own areas of responsibility[.]
130 It is true that the primary judge repeatedly referred to “the investigation” as a singular investigation, but his Honour’s use of language in this regard simply reflected that his focus was on the investigation conducted by ASADA, since the proceedings challenged the lawfulness of that investigation, not the AFL’s enquiry: see, for example, PJ, [207], [209], [255], [256(i)], [256(k)], [256(l)], [256(m)], [256(p)], [400] and [401]. It is also true that ASADA and the AFL referred to a “joint” investigation: see, for example, PJ, [91], [100], [124], [136], [156], [157], [160], [200] and [206]. On the facts as found by the primary judge, however, this expression merely signified that ASADA and the AFL were cooperating closely in an investigatory process, which in fact and law involved two separate investigations. This is borne out by the primary judge’s use of inverted commas in references to a “joint investigation”: see, for example, PJ, [1], [9], [15], heading to [83], [141], [124], [219], [227], [228], [234], [235], [256(f)], [402], [403], [406], [407], [409], [413], [418]-[419] and [423]. The primary judge did not find that what occurred was in fact a “joint investigation”.
131 As already noted, the appellant did not challenge the findings of fact made by the primary judge. Instead, the appellant challenged his Honour’s characterisation of the effect of those findings. In this instance, the appellant’s attempt to show error in his Honour’s findings about the nature of the investigation fails. His Honour specifically found that each of ADADA and the AFL were engaged in separate enquiries, with complementary objectives; and that, in the course of these enquiries, they worked in close cooperation. It was only in this sense that they were engaged in a “joint investigation”. There is nothing in his Honour’s other findings or in any other matter to which we have been referred that indicates that the finding of separate enquiries was not relevantly open. We agree with his Honour’s observation that the distribution of responsibility as to practical matters did not detract from the conclusion that each was conducting its own enquiries and that, from ASADA’s perspective, it was undertaking an investigation with the cooperation of the AFL.
1.1 ASADA’s authority to investigate possible anti-doping rule violations
132 Plainly enough, ASADA had authority under the ASADA Act and the NAD Scheme to investigate a possible anti-doping rule violation. This was not in dispute. Consistently with s 13(1)(f) of the ASADA Act, cl 3.27 of the NAD Scheme authorised the CEO to investigate possible anti-doping rule violations by athletes and support persons.
133 Further, since this function was conferred on the CEO by the NAD Scheme, it was a function of the CEO under s 21(1)(b) of the ASADA Act. Accordingly, pursuant to s 21(1)(o), the statutory functions of the CEO included doing anything incidental, or conducive, to the performance of such an investigation. By virtue of s 22 of the ASADA Act, the CEO also had the power to do all things necessary or convenient to be done for or in connection with the performance of the CEO’s investigatory function and any incidental function. We return to the scope and operation of this power below.
1.2 Whether ASADA’s investigation was cooperative with, or independent of, a SAB
134 The critical question for the outcome of this appeal was whether this authority and power permitted ASADA to conduct an investigation cooperatively with the AFL, with the consequence that ASADA benefited from the AFL’s use of its compulsory powers to arrange for Mr Hird and the 34 Players to attend interviews and answer questions: see PJ, [256(n)]. It was not disputed that ASADA obtained this benefit as a result of arrangements with the AFL. The further benefit that ASADA obtained from these arrangements was from the AFL’s use of compulsory powers to require production of physical evidence, documents, computers and phones, which were provided to ASADA. This second-mentioned benefit was not specifically challenged by the appellant, who focussed instead on the interviews.
135 As we have seen, the appellant argued that any investigation into anti-doping rule violations by ASADA was to be independent of the SABs in the sense that it was not to be conducted “in harness with” a SAB such as the AFL. The respondent on the other hand argued that the legislative scheme contemplated that ASADA and the SABs would work in “very close lockstep”. In this scheme, so the respondent submitted, there was to be close control by the SABs over their sports participants and close cooperation between the SABs and ASADA as the regulatory agency. For this reason, the respondent said, the kind of investigative arrangements made by ASADA in this case fell within the contemplation of the legislative regime.
136 For the following reasons, the respondent’s characterisation of the relationship between ASADA and a SAB was closer to the mark than that of the appellant. An investigation by ASADA under cl 3.27 was to be independent in the sense that ASADA was to make its own decisions about the conduct of the investigation, and to reach its own conclusions about the significance of the information gathered in the course of the investigation. There was no suggestion that ASADA did not exercise this kind of independence in this case. It does not follow from this, though, that ASADA could not call on a SAB to cooperate with it in the investigation. Given that ASADA had no coercive powers of its own, the efficacy of an investigation might very well depend on cooperation from the relevant sporting administration body.
137 Indeed, the ASADA Act and the NAD Scheme contemplated that ASADA and the SABs would adopt a collaborative approach to preventing doping in sport. ASADA was to support the SABs in their anti-doping measures. A number of the functions conferred on the CEO by s 21(1) of the ASADA Act contemplated support for the sporting community and sporting organisations in strategies to prevent doping in sport: see ss 21(1)(e), (f), (i), (j) and (k). Consistently with s 13 of the ASADA Act, the NAD Scheme also contemplated that in some circumstances ASADA should assist a SAB, or discharge functions about the performance of activities relating to sports drug and safety measures referred to ASADA by a SAB: cll 1.02(e) and (g). ASADA was specifically authorised to exercise powers under the NAD Scheme in order to cooperate with a SAB’s request “if the request [were] reasonably necessary to…give effect to the…[WADA Code] and other relevant international anti-doping instruments”: see cl 1.03(1).
138 Further, consistently with s 15 of the ASADA Act, the sporting administration body rules contemplated that ASADA and a SAB would have a close and cooperative relationship. A SAB, such as the AFL, was not only obliged to maintain and enforce anti-doping policies and practices that complied with the WADA Code, International Standards and the NAD Scheme but was also obliged to have its anti-doping policy approved by ASADA: cll 2.04(a) and (b). A SAB was also obliged to ensure that at all times it had the authority to enforce its anti-doping policy and to implement and enforce that policy “to the satisfaction of ASADA”: cll 2.04(c) and (h). Furthermore, a SAB was to inform ASADA immediately of an alleged breach of that policy and cooperate with any investigation into the matter: cl 2.04(d). A SAB was also obliged to supply ASADA with appropriate details or reports related to investigations, hearings, appeals and sanctions: cl 2.04(e).
139 Indeed, a SAB had particular obligations with respect to a possible anti-doping rule violation. As noted already, cl 2.04(j) required a SAB, such as the AFL, “to refer all instances of possible anti-doping rule violations to ASADA for investigation and cooperate with any investigation, as required” (emphasis added). More broadly still, the sporting administration body rules secured the cooperation of a SAB and its members by requiring that a SAB submit to the operations of ASADA and ensure that its members and staff cooperate with ASADA: cll 2.04(i) and (n). In effect, the sporting administration body rules mandated that a SAB, such as the AFL, cooperate with ASADA, including with respect to a SAB’s anti-doping policy and with respect to ASADA’s investigations into possible anti-doping rule violations – in the latter case “as required” by ASADA.
140 The provisions of the legislative scheme to which we have referred militate in favour of the respondent’s contention that this scheme envisaged that there would be close cooperation between ASADA and the SABs in anti-doping investigations. Further, as indicated below, this mandated cooperative relationship facilitated the object of the NAD Scheme.
2. The relevance of the General Anti-Doping Convention, the UNESCO Anti-Doping Convention, the WADA Code and the International Anti-Doping Arrangement
141 Consistently with s 9 of the ASADA Act, the NAD Scheme was intended, as cl 1.01 indicated, to implement the General Anti-Doping Convention and the UNESCO Anti-Doping Convention, particularly the obligation under Art 3(a) regarding the WADA Code. Indeed, this object is reflected in various provisions of the NAD Scheme, including in cll 1.02(1)(c) and 1.03(1). Furthermore, in exercising powers for the NAD Scheme, the CEO of ASADA was required to have regard not only to the WADA Code but also to “other relevant international anti-doping instruments”. As already noted, besides the General Anti-Doping Convention (also known as the Council of Europe Anti-Doping Convention) and the UNESCO Anti-Doping Convention, these instruments included the International Anti-Doping Arrangement: 2006 Regulations, reg 4 and Sch 2.
142 The fact that the ASADA Act, the 2006 Regulations and the NAD Scheme refer to these international instruments in various ways does not, however, make them part of the law of Australia. Provisions of an international instrument cannot become part of Australian law without legislation to that effect; and this is not the effect of the ASADA Act. The provisions of the ASADA Act, the 2006 Regulations and the NAD Scheme must be construed in their own terms, according to the ordinary principles of construction. These principles permit recourse to international instruments of the presently relevant kind in some circumstances for specific purposes: see the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act), ss 15AB(1) and (2)(d); Legislative Instruments Act 2003 (Cth), ss 6 and 13(1), read with ASADA Act ss 9 and 79; and, for example, Gummow J’s discussion in Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 303-305.
143 On examination, the international instruments referred to in the ASADA Act, the 2006 Regulations and the NAD Scheme may confirm (within the meaning of s 15AB(1)(a) of the Acts Interpretation Act that the meaning of the relevant provisions of the ASADA Act and the NAD Scheme is the ordinary meaning conveyed by the text of those provisions “taking into account [their] context … and the purpose or object” of the ASADA Act and the NAD Scheme: see Acts Interpretation Act, s 15AB(1)(a). Contrary perhaps to the respondent’s submissions, these international instruments provide no greater assistance because the relevant parts of these instruments are, so it seems to us, either “aspirational rather than normative” (to adopt the language of Gleeson CJ, McHugh and Gummow JJ in AMS v AIF (1999) 199 CLR 160 at 180) or too imprecise to give more guidance than this in construing the legislative regime governing the outcome of this appeal.
144 We touch briefly on the relevant international instruments to illustrate that, like the provisions of the ASADA Act and the NAD Scheme to which we refer, they recognise the importance of effective cooperation between anti-doping regulatory agencies and sports organisations in preventing doping in sport.
145 The General Anti-Doping Convention, the aim of which is “the reduction and eventual elimination of doping in sport”, is predicated on cooperation between public authorities and sports organisations. Its preamble refers to an awareness that “public authorities and the voluntary sports organisations have complementary responsibilities to combat doping in sport” and recognises that “these authorities and organisations must work together for these purposes at all appropriate levels”. Parties undertake to “encourage and, where appropriate, facilitate the carrying out by their sports organisations of the doping controls required by the competent international sports organisations” and agree “to encourage their sports organisations … to formulate and apply all appropriate measures, falling within their competence, against doping in sport”: Art 4(3)(c); see also Art 7(1).
146 The preamble to the UNESCO Anti-Doping Convention, which aims “to promote the prevention of and the fight against doping in sport, with a view to its elimination”, similarly refers to an awareness that “public authorities and the organizations responsible for sport have complementary responsibilities to prevent and combat doping in sport”; recognises “that these authorities and organizations must work together for these purposes”; affirms a determination “to take further and stronger cooperative action aimed at the elimination of doping in sport”; and recognises “that the elimination of doping in sport is dependent in part upon … cooperation at the national and global levels”: preamble and Art 1. The States Parties undertake “to adopt appropriate measures at the national and international levels which are consistent with the principles of the [WADA] Code”: Art 3(a). They also agree to “ensure the application of the … Convention, notably through domestic coordination”; and that to this end they may “rely on anti-doping organizations as well as sports authorities and organizations”: Art 7. They agree where appropriate to “encourage and facilitate the implementation by sports organizations and anti-doping organizations within their jurisdiction of doping controls in a manner consistent with the [WADA] Code”: Art 12(a); cf. Art 13.
147 The WADA Code, as it stood at the relevant time, described itself as “the fundamental and universal document upon which the World Anti-Doping Program in sport is based” (p 11). A purpose of the Code (at p 11) is “[t]o ensure harmonized, coordinated and effective anti-doping programs at the international and national level with regard to detection, deterrence and prevention of doping”. Amongst other things, the WADA Code stipulates that national anti-doping organisations (such as ASADA) are not only to adopt and implement anti-doping rules and policies conforming to the Code, but also are to cooperate with other relevant national organisations and agencies and other anti-doping organisations that are signatories to the WADA Code: Arts 20.5.1 and 20.5.2.
148 The International Anti-Doping Arrangement further shows that cooperation between public authorities and the sports community is an important element in the international anti-doping framework. In particular, it is a principle of the Arrangement (at [3]) that the Participating Parties recognise “the sport community as a crucial ally in anti-doping work and thus will develop policies and programmes in a cooperative manner with the sport community.”
149 As we explain in these reasons for judgment, the provisions of the ASADA Act and the NAD Scheme contemplate close cooperation between ASADA and a SAB, particularly in ASADA’s anti-doping investigations. Cooperation of this kind is also within the contemplation of the international instruments to which the ASADA Act, the 2006 Regulations and the NAD Scheme refer. Even without reference to these international instruments, we would conclude that the ASADA Act and the NAD Scheme, particularly cll 2.04 and 3.27 of the NAD Scheme and s 22 of the ASADA Act (discussed further below), authorised ASADA to conduct an investigation in cooperation with the AFL. The effect of the international instruments is to confirm that this ordinary meaning of the relevant provisions is their intended meaning. The provisions regarding the need for cooperation in these international instruments confirm that the ASADA Act and the NAD Scheme contemplated that ASADA and the SABs would work closely together to combat doping in sport, particularly in ASADA’s anti-doping investigations. There is nothing in the legislative regime that supports the appellant’s proposition that ASADA was required to conduct its investigation under cl 3.27 independently of a SAB, in the sense that it could not require a SAB to cooperate with its investigation by working alongside it.
3. The operation of cl 2.04(j) of the NAD Scheme and the AFL’s contractual regime
150 This means that we reject the appellant’s contention that the AFL had no power to investigate a possible anti-doping rule violation once it had referred that matter to ASADA for investigation, as cl 2.04(j) of the NAD Scheme required; and that we do not accept the appellant’s contention that the primary judge misunderstood the effect of the contracts between Mr Hird and the players on the one hand and the AFL on the other. These contentions were an important part of the appellant’s arguments that the “joint” or cooperative investigation was ultra vires the ASADA Act (and that the CEO acted unlawfully in facilitating the abrogation of the interviewees’ common law rights against self-incrimination or exposure to penalties, discussed below).
151 We commence with the AFL’s contractual arrangements. Broadly speaking, the appellant’s argument was that, although the contractual regime compelled the appellant and the 34 Players to cooperate with an AFL investigation, including by providing information and documents and attending interviews and giving answers to questions, it did not compel them to cooperate with ASADA in its investigation under cl 3.27 of the NAD Scheme. This was because, so the appellant argued, the AFL’s power to investigate anti-doping matters ended once it referred a matter to ASADA for investigation and, in effect, the AFL did not have any post-referral investigative power. This argument depended on the appellant’s construction of cl 2.04(j) of the NAD Scheme and the AFL’s contractual arrangements. It also followed, so the appellant said, that the appellant and the 34 Players did not consent to the provision of information to ASADA and the waiver of their common law rights for the purpose of ASADA’s investigation because the information was obtained on a mistaken premise. Therefore, so the appellant’s argument ran, to the extent the information was gained on this mistaken premise, the information was collected without lawful authority.
152 We accept that, as the respondent submitted, the effect of the contractual arrangements was not in issue before the primary judge. We further accept that the appellant made no submission at first instance that the AFL did not have any post-referral investigative power.
153 The primary judge noted in his reasons that no challenge had been made to the contractual powers exercised by the AFL. The primary judge stated that (PJ, [35]):
No contention has been made that the contractual “compulsory powers” relied upon by the AFL were unenforceable at common law or because of any legislative provision. For instance, it has not been suggested or pleaded by any party that the “compulsory powers” in the contractual arrangements between the AFL, Mr Hird and the 34 Players are unenforceable on the basis they are contrary to public policy or that they are unconscionable. In fact, the parties, ASADA, the AFL and the 34 Players all regarded the “compulsory powers” of the AFL as being valid and enforceable, and each acted accordingly.
154 It may be recalled that the primary judge found that the 34 Players entered into a Standard Playing Contract, which was a tripartite contract between the player, Essendon and the AFL. The effect of this contract was that the players and Essendon agreed with the AFL to comply with the AFL’s Player Rules. Essendon personnel, including Mr Hird, were also bound to observe these Rules pursuant to the terms of their registration forms: see paragraphs [15]-[16] above. The AFL’s Player Rules gave the AFL the power to investigate, to obtain and take possession of documents and to require players to attend or give evidence as directed at any inquiry: see paragraph [16] above.
155 It may also be recalled that the primary judge found that the AFL’s Anti-Doping Code also applied to Essendon’s players and personnel by virtue of these tripartite contractual arrangements: see paragraph [16] above, where the terms of cl 12.6 (conferring power on the AFL to investigate a possible anti-doping rule violation) and cl 12.7 (obliging clubs, players and personnel, at the AFL’s request, to cooperate with an investigation and to answer questions and to provide documents) are set out.
156 The primary judge’s findings also included (PJ, [256(g) and (h)]) that:
Essendon, Mr Hird and the 34 Players all co-operated because of their contractual obligations to do so, which required them to attend interviews, answer questions and provide information to the AFL, and to co-operate with ASADA.
Mr Hird and the 34 Players, under their contractual obligations were required to answer questions of, and provide information to, the AFL subject to a limited right to claim the privilege against self-incrimination.
His Honour held that contractual “obligations were imposed on Mr Hird and the 34 Players to cooperate with the AFL and ASADA in investigations”: PJ, [427].
157 It is apparent from his Honour’s reasons, the transcript of the proceedings below, the joint opening submissions of the appellant and Essendon before his Honour, and the pleadings that, at trial, the appellant and Essendon accepted that, at all material times, he and the 34 Players were subject to the lawful exercise of the AFL’s contractual powers, including its powers to compel the provision of information to it and to ASADA at the interviews.
158 The following exchange between his Honour and senior counsel for the appellant, recorded in the transcript of the hearing before the primary judge, further demonstrates that the appellant did not take issue with the existence or use of the AFL’s compulsory powers in the interviews:
HIS HONOUR: And no one is suggesting anything the AFL has done is wrong.
…
HIS HONOUR: No one is suggesting that the AFL can’t force people to answer their questions, are they? I don’t gather that[…]
MR HANKS: That’s not part of the case, your Honour.
HIS HONOUR: Not part of the case.
MR HANKS: No.
HIS HONOUR: So self-incrimination is well and truly out the window as far as the AFL is concerned.
MR HANKS: As far as the AFL is concerned it has got contractual powers over the players and the support staff.
159 The joint opening submissions of the appellant and Essendon did not challenge the existence and use of the AFL’s contractual powers. Instead, they challenged the advantage acquired by ASADA through the AFL’s use of those powers. Indeed, in an affidavit of 30 July 2014, Mr Hird deposed that “the Essendon players had no choice but to attend interviews [conducted by ASADA and the AFL] as the investigation was being conducted jointly with the AFL and the AFL Rules compelled the players to attend”. All this was consistent with the appellant’s amended originating application of 27 June 2014 and his statement of claim of 30 June 2014, where again no issue was taken with the existence or use of the AFL’s contractual powers. Rather the focus was on ASADA’s asserted illegitimate advantage arising from the AFL’s use of those powers.
160 It is clear enough (and at the hearing of the appeal senior counsel for the appellant ultimately did not dispute) that the trial was conducted on the basis that no issue was taken with the existence or use of the AFL’s contractual powers, and in particular that those powers required the appellant and the 34 players to answer questions at interview asked by ASADA as part of its investigation. In reply, senior counsel for the appellant ultimately conceded that:
[I]t is true that we put in our written submissions that on their proper construction, they [the AFL’s contractual powers] did not oblige either Mr Hird or the players to answer questions in the context of an ASADA investigation, but it is also true that we did not pursue that in our oral arguments yesterday, and we did not do that because we do accept that it was not a point that was agitated before the primary judge, and it is possible that the point could have been met in one way or another
Senior counsel for the appellant later stated:
We don’t resile from the way in which we’ve construed…[the contractual regime], but we do accept that that construction can’t be or should not be – I think that would be a preferable way of putting it – should not be advanced in this appeal
161 The concession was properly made. Parties are bound by the way a case is conducted. Referring to Metwally v University of Wollongong (1985) 60 ALR 68 at 71, Water Board v Moustakas (1988) 180 CLR 491 (Water Board v Moustakas) at 497 and Coulton v Holcombe (1986) 162 CLR 1 at 7-8, a Full Court of this Court recently stated in Siegwerk Australia Pty Ltd v Nuplex Industries (Australia) Pty Ltd (2013) 305 ALR 412 at 431 [97] that:
It is axiomatic that parties are bound by the way the case is conducted. If a case is conducted in a particular way and opposing counsel say, in opposition to a ground of appeal or an application to add a ground of appeal, that they would have responded differently at trial if the point had been put or remained live then usually that is sufficient to have the consequence that the point cannot be raised on appeal.
162 A point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence at trial. We consider that the appellant is bound by the way he conducted his case before the primary judge. As indicated earlier, the respondent submitted, fairly in our view, that the CEO would have conducted the case below differently and have sought to adduce evidence relevant to the issues now in dispute regarding the AFL’s contractual powers. Furthermore, the AFL, which would be affected by any ruling on this issue and may want to be heard and make submissions, was not a party to the proceedings below and is not a party to this appeal. This is not a case in which it can be said that the point is merely one of construction or of law, in which circumstance, an appellate court may find it expedient in the interests of justice to entertain the point: see Water Board v Moustakas at 497.
163 Accordingly, we would not entertain (and cannot accept) the appellant’s submission that the primary judge misunderstood the effect of the contracts between Mr Hird and the players on the one hand and the AFL on the other.
164 A similar obstacle confronts the appellant’s argument that, under cl 3.27 of the NAD Scheme, the AFL had no post-referral investigative power and therefore no power to participate in the “joint” or cooperative investigatory interviews. Having regard to the appellant’s amended originating application and statement of claim, the transcript of the proceedings below (including the above-mentioned passage), the joint opening submissions at trial of the appellant and Essendon and his Honour’s reasons for judgment, we accept that, as the respondent submitted, the point was not argued before the primary judge. The appellant did not contend to the contrary. The respondent contended that he would have conducted his case differently if the point had been raised at trial. In this instance, however, the point would appear to turn less on evidence that might have been led; and more on the proper construction of cl 3.27 in the context of the undisputed facts found by the primary judge. Be this as it may, as stated below, we can discern no merit in the appellant’s contention concerning the construction of cl 3.27.
165 The sporting administration body rules considered as a whole lead us to conclude that a SAB’s investigatory authority is not terminated upon a referral under cl 2.04(j). We have already noted that, under the NAD Scheme, a SAB is required at all times to maintain and enforce the anti-doping policy that has been approved by ASADA; and to ensure that at all times it has the authority to enforce that anti-doping policy: see cll 2.04(a) and (c). Compliance with these obligations could be seriously impeded if a SAB were not to have the continuing capacity to carry on its investigations into a breach of its anti-doping policy involving a possible anti-doping rule violation referred to ASADA. Similarly, a SAB is required to cooperate, as required, with any ASADA investigation into an anti-doping rule violation: see cl 2.04(j); cf. cl 2.04(d). Circumstances may arise in which ASADA requires a SAB to cooperate by continuing its own investigations into the matter. Indeed, circumstances may arise in which ASADA considers it preferable for a SAB to investigate the matter further before ASADA takes any action with respect to the possible violation. These possibilities are consistent with a SAB’s obligation to submit to the operations of ASADA and its obligation to provide ASADA with details or reports related to an investigation: see cll 2.04(i) and (e); also cl 2.04(k) (ASADA may approve a SAB to present its own case at an anti-doping hearing). There is nothing in the sporting administration body rules or elsewhere in the NAD Scheme to support the view that, once a mandatory referral is made under cl 2.04(j), the relevant sporting administration body can no longer make its own enquiries into the matter. Section 68(7)(a) of the ASADA Act, moreover, provides a another strong contrary indication, in so far as it provides that “a permitted anti-doping purpose of a sporting administration body” is “investigating possible breaches of a current policy of the body about drugs and/or doping methods” (emphasis original).
166 In requiring a SAB to refer an instance of a possible anti-doping rule violation to ASADA for investigation, cl 2.04(j) recognises that ASADA has a particularly strong interest in anti-doping rule violations such that it may very well undertake its own investigation into the matter. We accept that, as the respondent submitted, this is consistent with the meaning of the word “refer” in ordinary English usage. The sixth edition of the Macquarie Dictionary (Macmillan, 6th ed, October 2013) provides the following meanings for “refer”:
1. to direct the attention or thoughts of …
2. to direct for information or for anything required…
…
6. to hand over or submit for information, consideration, decision, etc …
We accept that the word “refer” is used in cl 2.04(j) to mean that a SAB is to direct all instances of possible anti-doping rule violations to ASADA in order that it may determine whether or not it will investigate the matter and does not involve any implied limitation on the continuing power of a SAB to enquire.
167 The contrary conclusion for which the appellant argued is antithetical to the objects of the NAD Scheme and the ASADA Act, in so far as they are directed to the implementation of the General Anti-Doping Convention and the UNESCO Anti-Doping Convention, both of which in turn are directed to the prevention and eradication of doping in sport, including through cooperation between regulatory agencies and sporting organisations. There is no basis in any of the relevant international anti-doping instruments to suppose that a regulatory agency such as ASADA should be solely responsible for investigations into anti-doping matters. Indeed, this would be inconsistent with the affirmation in these instruments that cooperation between regulatory agencies and sporting bodies is important if anti-doping measures are to succeed.
4. Whether ASADA could legitimately benefit from the AFL’s use of its compulsory powers
168 As already indicated, the appellant’s case on appeal ultimately turned on whether the Parliament had, at least by implication, prohibited ASADA from conducting a “joint” or cooperative investigation with a SAB in such a way as to benefit from the use by the SAB of compulsory contractual powers. In this case, as we have seen, ASADA benefitted from the AFL’s compulsory powers to arrange for Mr Hird and the 34 Players to attend interviews and answer questions truthfully (and to compel the production of documents). As outlined earlier, the appellant’s argument proceeded on the basis that the express grant of power to ASADA to conduct an investigation, without a conferral of compulsory powers, meant that ASADA could not carry on an investigation in a way that permitted it to benefit from the use of the AFL’s compulsory powers. In substance, the appellant’s argument was that the Parliament cannot have intended that ASADA exercise its investigative power in this way. For the reasons set out below, we reject this contention.
169 In this context, the appellant relied on:
(1) the fact that ss 24M and 24N of the ASADA Act did not identify a SAB as an entity that might assist it, and to whom ASADA’s functions and powers could be delegated;
(2) that by engaging in the cooperative interviews as part of a “joint” or cooperative investigation with the AFL, ASADA circumvented the non-disclosure provisions in s 71 of the ASADA Act and cl 4.27 of the NAD Scheme; and
(3) that by engaging in the cooperative interviews as part of a “joint” or cooperative investigation with the AFL, ASADA facilitated the abrogation of the interviewees’ common law rights against self-incrimination or exposure to penalties
4.1 The significance of ss 24M and 24N of the ASADA Act
170 The appellant submitted that ss 24M and 24N limited the persons who could assist the CEO of ASADA in making an investigation under cl 3.27 of the NAD Scheme to the particular officers and employees identified in s 24M and the potential delegates specified in s 24N of the ASADA Act. The appellant observed that only someone who fell within ss 24M or 24N could be an “entrusted person” within ss 69 and 71(1) of that Act. We return to these non-disclosure provisions shortly.
171 Plainly enough, however, ss 24M and 24N are facultative provisions directed to ASADA’s administration and management. Section 24N is confined to formal delegations of the CEO’s functions and powers, and no issue of formal delegation arises in this case. Section 24M identifies the people who may, within the Commonwealth, provide assistance in performing the CEO’s functions. Section 24M is not intended to operate as an exclusionary provision – a proposition confirmed by the relevant Explanatory Memoranda. In discussing s 50 of the ASADA Act as originally enacted, which was identical in terms to s 24M, the Explanatory Memorandum for the Australian Sports Anti-Doping Authority Bill 2005 (Cth) stated (at p 23) that it was not intended to exclude the assistance of consultants. The subsequent Explanatory Memorandum to the Australian Sports Anti-Doping Authority Amendment Bill 2009 (Cth) (which became the Australian Sports Anti-Doping Authority Amendment Act 2009 (Cth)) added (at p 11) that s 24M is “a standard provision enabling Commonwealth employees to assist the ASADA CEO” (emphasis added).
172 In any event, s 15(2)(c) of the ASADA Act expressly contemplated that there would be sporting administration body rules “about assisting … ASADA in relation to investigations of possible violations of the anti-doing rules”. In conformity with s 15 of the ASADA Act, cl 2.04 of the NAD Scheme set out sporting administration body rules, which expressly provided for, and mandated, that a SAB cooperate with any investigation into a breach of its anti-doping policy and, in particular, cooperate “as required” by ASADA in the case of an ASADA investigation into a possible anti-doping rule violation: see cll 2.04(d) and (j). Furthermore, a SAB was required to ensure that its members and staff cooperated with ASADA: cl 2.04(n).
173 The appellant’s submissions with respect to ss 24M and 24N fail to have regard to their facultative function and the fact that the legislative regime itself contemplated that a SAB might be required to assist ASADA with its investigations in relation to possible anti-doping rule violations. At one point, senior counsel for the appellant sought to draw a distinction between ASADA’s power to “call on the AFL to cooperate with an investigation” and providing the AFL with “some direct involvement in the investigation process”, which he said “happened here”. We do not consider that the legislative scheme contemplates this line of demarcation between permissible and impermissible SAB cooperation. As stated already, a SAB, like the AFL, was required to render such cooperation with an investigation under cl 3.27 as ASADA required of it: cl 2.04(j). The form of the cooperation that ASADA might require under cl 2.04(j) was left to ASADA to determine, having regard to all the circumstances of the case. Further, whilst the AFL and ASADA conducted their investigations in a cooperative way, it did not follow from this that the AFL had “direct involvement” in ASADA’s investigation, in the sense that the AFL took decisions for ASADA that were within ASADA’s own sphere of decision-making responsibility. This kind of “direct involvement” is inconsistent with the findings of fact made by the primary judge: see e.g., PJ, [256(d)], [256(e)], [256(m)], [256(p)] and [400].
4.2 The significance of the non-disclosure provisions in s 71 of the ASADA Act and cl 4.21 of the NAD Scheme
174 The appellant put his argument with respect to the non-disclosure provisions in various ways. As indicated already, the appellant’s essential point was that, by engaging in the cooperative interviews with the AFL, ASADA circumvented the non-disclosure provisions in the ASADA Act and the NAD Scheme. He advanced this argument in support of his Primary Submission that ASADA had no power to conduct an investigatory interview at which the AFL was present when ASADA questioned a witness. In particular, the appellant submitted that, by allowing the AFL to participate in the interviews, NAD Scheme personal information was disclosed to persons who, not being entrusted persons, were free from the constraints on disclosure in s 71 of the ASADA Act; and that ASADA disclosed information in a manner inconsistent with cl 4.21 of the NAD Scheme.
175 The appellant’s arguments with respect to his Primary Submission merged with the arguments in support of his Third Submission, namely, that the AFL’s presence in the interview room infringed the constraint imposed by s 71 of the ASADA Act. Accordingly, in the following paragraphs, we deal with both aspects of the appellant’s argument.
176 We set out ss 69 and 71 of the ASADA Act at paragraphs [101]-[102] above. Section 71(1) prohibited the disclosure of “NAD scheme personal information” by creating a criminal offence for the disclosure of that information by “entrusted persons”, as defined in s 69. The prohibition was subject to the exceptions set out in s 71(2). If the disclosure was covered by an exception, s 71(3) provided the disclosure was authorised by s 71. One of the exceptions in s 71(2) was “a disclosure with the consent of the individual to whom the NAD scheme personal information relates”: s 71(2)(c).
177 Clause 4.21 of the NAD Scheme, which gave effect to s 13(1)(g) of the ASADA Act, regulated the disclosure of information gathered in the course of an ASADA investigation into possible anti-doping rule violations. It may be helpful to sketch the appellant’s argument with respect to cl 4.21 in more detail than we have yet done. Clause 4.21 of the NAD Scheme authorised ASADA to disclose certain information, as identified in cl 4.21(1) – namely, information that:
(a) is not information arising out of an entry on the Register; and
(b) relates, or appears to relate, to a person in connection with a possible anti-doping rule violation by an athlete or support person.
Information that fell within cl 4.21(1)(a) was also called “non-entry information”. Clause 4.21(2) provided that “[f]or s 13(1)(g) of the Act, ASADA may disclose” the information identified in cl 4.21(1) to all or any of the recipients listed in cll 4.21(2)(a)-(e), which included a sporting administration body (cl 4.21(2)(a)), such as the AFL.
178 The appellant submitted that ASADA could only disclose non-entry information under cl 4.21 if: (1) the disclosure was for the purposes of or in connection with the investigation because the authorisation provided by cl 4.21(2) was “[f]or s 13(1)(g) of the Act”; (2) and the information to be disclosed was of the kind described in cl 4.21(1)(b). It followed, so the appellant submitted, that before making any disclosure under cl 4.21(2), ASADA was required to consider whether: (1) the information related to a person in connection with a possible anti-doping rule violation by an athlete or support person, as clause 4.21(1)(b) required; and (2) whether the disclosure of the information to a particular recipient would be for the purpose of the investigation, or in connection with the investigation, in conformity with s 13(1)(g) of the ASADA Act. The respondent did not dispute this interpretation, which indeed conformed to that of the primary judge. (The appellant did not refer to cl 4.21(1)(a), presumably because the information disclosed in the circumstances with which we are concerned would be unlikely to constitute “information arising out of an entry on the Register [of Findings]”.)
179 As the appellant apparently appreciated, much of his argument about the infringement and circumvention of the disclosure provisions in the ASADA Act and the NAD Scheme turned on the proposition that the AFL was in some sense “a third party in the interview room”, to whom NAD Scheme personal information was communicated, contrary to s 71 of the ASADA Act; and non-entry information was disclosed otherwise than in accordance with cl 4.21 of the NAD Scheme.
180 We do not consider that the appellant’s contentions as to the infringement or the unlawful circumvention of the protections in the ASADA Act and the NAD Scheme withstand analysis. For the reasons already stated, we reject the appellant’s characterisation of the investigatory interviews as interviews conducted by ASADA in the course of an ASADA investigation, rather than interviews by the AFL for an AFL enquiry. As already noted, this supposed characterisation was contrary to the factual findings of the primary judge. It will be recalled that his Honour found that, while ASADA was conducting an investigation into possible anti-doping rule violations, the AFL was conducting its own enquiries, including in the interviews, for the purpose of enforcing the AFL’s Player Rules; and that, as a result, ASADA and the AFL “each made two separate and distinct decisions within their own areas of responsibility”: PJ, [256(p)] and [400]. As previously noted, his Honour also made specific findings as to the cooperative nature of the investigatory process, including that ASADA and the AFL cooperated in the conduct of the interviews: PJ, [256(k)-(m)]. The primary judge’s findings also established that the AFL was not just a passive onlooker in the interview room. Rather, the AFL’s representatives introduced the interview and the AFL sought the provision of materials before and after the interview. Further, it may be inferred from his Honour’s finding, that ASADA’s representatives asked the majority of the questions, that the AFL’s representatives themselves asked some questions when they considered it appropriate for the AFL’s purposes to do so. This is consistent with paragraph [21] of the affidavit of Mr Aaron Walker, Principal Investigator, ASADA, sworn on 22 July 2014, to which the Court was referred.
181 In the circumstances outlined above, the AFL was not merely present in the interview room as a third party. Rather, the AFL was present in the interview room to pursue its own enquiries; and, in pursuing its own enquiries, the AFL exercised its contractual power under its Player Rules and its Anti-Doping Code, to require the interviewees to attend the interviews, to answer the questions put to them at interview, including ASADA’s questions, and to produce various materials. At the same time, ASADA was present in the interview room to investigate the possible anti-doping rule violations that the AFL had referred to it. As obligated by cl 2.04(j) of the NAD Scheme, the AFL cooperated with ASADA as required; and ASADA cooperated with the AFL, including in the interview process (whether pursuant to the incidental function in s 21(1)(o) of the ASADA Act or in discharge of the ancillary power in s 22: see below). An aspect of this collaborative approach was that the AFL and ASADA chose to conduct their interviews together, with the result that both were present to receive the information given by each interviewee at his interview. The advantage, so far as ASADA was concerned, was that the interviewees were subject to the compulsory powers of the AFL under their contracts with the AFL and might therefore be compelled by the AFL to answer questions at interview truthfully. This advantage did not turn an otherwise lawful acquisition of information on ASADA’s part into an unlawful acquisition. As indicated hereafter, this was not an advantage that was in any sense unfairly obtained.
182 The primary judge held that s 71 of the ASADA Act and cl 4.21 of the NAD Scheme were not engaged on the facts as he found them. In particular, his Honour found (PJ, [256(j)]) that:
The information provided at the interviews by Mr Hird and the 34 Players was simultaneously divulged and communicated to the personnel of both the AFL and ASADA, who were present in the interview room.
We do not see how this finding can be other than correct. His Honour continued (PJ, [415]-[416]):
Based upon my finding that the information provided at the interviews by Mr Hird and the 34 Players was simultaneously divulged and communicated to personnel of the AFL and ASADA, there was no disclosure of any information by ASADA to the AFL in the interviews.
Therefore, characterisation of the events set out by Essendon and Mr Hird is contrary to what in fact occurred. There was disclosure of information directly to the AFL by the process of the interviews and by the AFL directly obtaining other information from Mr Hird and the 34 Players. After all, it was the AFL which had the power to request and obtain this information. Therefore, it cannot be said that ASADA or the CEO communicated or divulged any of this information to the AFL.
183 We agree with the primary judge that, on the facts as found, none of the non-disclosure provisions to which the appellant referred was engaged, because information was disclosed to the AFL by the interviewees directly. The information was not disclosed by ASADA. The fact that these provisions were not engaged does not mean that ASADA unlawfully side-stepped them. It signifies only that ASADA’s representatives did not infringe them in the interview room, when they received information from the interviewees in the presence of the AFL. Assuming that the presence of both the AFL and ASADA in the interview room may be explained by ASADA wanting to benefit from the AFL’s use of the AFL’s compulsory powers and ASADA requiring the AFL’s cooperation in this regard, it does not follow that ASADA has unlawfully evaded the operation of the non-disclosure provisions. The most that follows from this form of collaboration is that the non-disclosure provisions did not apply to the information given to ASADA and the AFL at one and the same time by Mr Hird or one of the 34 Players.
184 Senior counsel for the appellant sought to turn his submission on side-stepping the non-disclosure provisions into a complaint that there was an “automatic and unconsidered disclosure” in the interview room. This characterisation of what occurred does not withstand analysis when it is recalled that it was Mr Hird or one of the 34 Players, not ASADA, who was making the disclosure. None of the provisions in question governed disclosures made by a person other than an “entrusted person” in the case of s 71 or ASADA in the case of cl 4.21.
185 Furthermore, ASADA did not obtain the advantage of the AFL’s use of its compulsory powers unfairly. As the respondent submitted, if there were any disclosures of NAD scheme personal information for the purpose of s 71, it might readily be concluded that these disclosures were made with consent for the purpose of s 71(2)(c). The primary judge found (at PJ, [256(i)]) that “Mr Hird and the 34 Players were legally represented at all relevant times [and] co-operated with the investigation”. His Honour found (PJ, [256(g)]) that “Mr Hird and the 34 Players all co-operated because of their contractual obligations to do so, which required them to attend interviews, answer questions and provide information to the AFL, and to co-operate with ASADA”. The primary judge’s findings show that there was no practical unfairness to the appellant or the 34 Players and they were not misled in the interview process. They were given due notice of the nature of the investigation and the basis on which it was conducted. They had the opportunity to obtain legal representation and seek advice and did so. In this circumstance, they chose to adhere to their contractual obligations with the AFL and to cooperate with the investigation. Each of the appellant and the 34 Players was legally represented at his interview, did not complain about the presence of both the AFL and ASADA in the interview room, and did not decline to answer questions, whether asked by an ASADA representative or a representative of the AFL. For these reasons, the appellant’s argument that he and the 34 Players did not consent because they were misled as to the extent of the AFL’s powers must fail.
186 In the circumstances as found, it might also be readily concluded that any disclosure of non-entry information for the purposes of cl 4.21 “relate[d], or appeared to relate, to a person in connection with a possible anti-doping rule violation” (within the meaning of cl 4.21 of the NAD Scheme); and was made “for the purposes of, or in connection with” ASADA’s investigation into possible anti-doping rule violations (within the meaning of s 13(1)(g) of the ASADA Act). Indeed, the primary judge expressly found that ASADA was conducting its investigation for that purpose: PJ, [256(o)].
187 Given the considerations outlined above, the non-disclosure provisions of the ASADA Act and the NAD Scheme do not assist the appellant’s argument that ASADA had no power to conduct an investigatory interview at which the AFL was present when ASADA questioned a witness. Further, the AFL’s presence in the interview room did not infringe the constraint imposed by s 71 of the ASADA Act.
4.3 The asserted loss of common law rights to claim privileges against self-incrimination or exposure to civil penalty
188 Like the appellant’s argument with respect to the non-disclosure provisions, the appellant’s argument about the abrogation of the common law rights to claim the privileges against self-incrimination or exposure to civil penalty had two aspects. First, the appellant relied on an argument about common law rights to advance his Primary Submission that ASADA had no power to conduct an investigatory interview at which, by virtue of the AFL’s presence, he was compelled to answer questions without its protection. Second, the appellant relied on a related argument in support of his Fourth Submission that the primary judge erred in failing to hold that ASADA had acted unlawfully in facilitating the abrogation of his common law rights, by engaging the AFL to participate in ASADA’s investigation. These arguments overlapped significantly and, for this reason, we deal with them together.
189 It was not disputed that ASADA was entitled to ask questions of a person in its investigation of possible anti-doping rule violations and, where a person chose to answer, it could lawfully receive the information. It was also not disputed that ASADA had no power to compel a person to answer.
190 Further, as already noted, the compulsory contractual powers of the AFL (which included the power to require players and personnel, such as the appellant, to cooperate with an investigation and to answer questions) were not in dispute before the primary judge. For the reasons stated above, we hold that the appellant should not be permitted to put the effect of these contractual arrangements in issue on appeal. As noted earlier, the AFL’s Player Rules and AFL’s Anti-Doping Code, which were part of these contractual arrangements, were found by the primary judge to give the AFL various compulsory powers, including the power to require players to answer questions as directed at any inquiry: see [16] above. His Honour found that the combined effect of the AFL’s Player Rules and Anti-Doping Code was that the appellant and the 34 Players were obliged to attend interviews when requested by the AFL to do so and to answer questions fully and truthfully when so directed by the AFL (subject to a limited right to claim privilege against self-incrimination, which in the circumstances of the case can be put to one side). If they failed to comply with the AFL’s request or direction, they faced possible sanction by the AFL: PJ, [67].
191 In support of his argument that ASADA facilitated the abrogation of the interviewees’ common law right to claim privilege, the appellant re-iterated his contention that the investigatory interviews were to be seen as interviews conducted by ASADA in the course of an ASADA investigation, rather than interviews by the AFL for an AFL enquiry. In this context, the appellant referred to his Honour’s own statement (PJ, [12]) that:
The CEO admitted that the AFL’s compulsory powers enabled the AFL to compel Essendon players and personnel to provide information as directed by the AFL, including by attending interviews (at which ASADA and the AFL were present), in circumstances where interviewees were not then able to claim the privileges against self-incrimination or self-exposure to a penalty.
In written submissions, the appellant claimed that “the way ASADA set up the interviews meant that interviewees could not invoke the [common law] privileges”.
192 As we have already explained, we reject the appellant’s characterisation of the investigatory interviews. As noted above, the primary judge found on the evidence before him, and we accept that, at the interviews, ASADA and the AFL were each pursuing separate investigations for its own objectives, resulting in separate decisions, within its own area of responsibility. As we have seen, the legislative regime contemplated that there should be a high level of cooperation between ASADA and a SAB, such as the AFL, with respect to anti-doping measures. Bearing in mind that the objectives and responsibilities of ASADA and the AFL were complementary, it was natural that the two bodies would work closely together in the course of their enquiries. The AFL cooperated with ASADA in ASADA’s investigation process, as the AFL was required to do (see, e.g., cl 2.04(j) of the NAD Scheme); and ASADA worked with the AFL, for the purpose of its own investigation under cl 3.27 (whether pursuant to the incidental function in s 21(1)(o) of the ASADA Act or in discharge of the ancillary power in s 22: see below).
193 ASADA’s participation in the interviews did not affect the nature of the compulsory powers to which the interviewees were subject. The primary judge found, and it was not disputed, that the appellant and the 34 Players cooperated in attending the interviews and in answering questions because of their contractual obligations with the AFL: PJ, [259(g)]. The appellant and the players would, however, each have been obliged to attend an interview and answer questions at interview if so directed by the AFL, even if ASADA had not been there. In that event, the AFL would have been obliged under the NAD Scheme to have made available to ASADA the information obtained by it as a result of the interviews: see, for example, cll 2.04 (e) and (j). It does not follow, of course, that ASADA did not obtain an advantage (as identified by the primary judge) from the collaborative interview process; but this circumstance does indicate that the appellant’s submission that ASADA facilitated the abrogation of the interviewees’ common law rights to claim privileges against self-incrimination or exposure to penalties, by engaging the AFL to participate in ASADA’s investigation, does not withstand scrutiny.
194 The appellant’s further arguments were as follows:
(1) The fact that ASADA itself did not use any coercive power was irrelevant to the case that it sought to make. The appellant submitted that “when ASADA spoke of compulsive powers and directions to attend interviews, it misled the appellant, the players and officials”, because his Honour misinterpreted the AFL’s contractual powers and cl 2.04(j) of the NAD Scheme in that the AFL was not entitled to investigate after a referral under cl 3.27 of the NAD Scheme. In this circumstance, so the appellant said, there was neither “consent nor waiver by the [a]ppellant or the players under any contractual regime”.
(2) Senior counsel for the appellant also submitted at the hearing of the appeal that there was no “free consent” to the provision of information to ASADA, because of the way ASADA arranged the interviews. To quote senior counsel:
We have the factual findings that [the interviewees] were brought into the room. They were told, “You must answer.” They did answer. That’s clear. That’s uncontroversial. We know that when they were brought into the room, the AFL was present. We know the AFL was present because there was an agreement or an understanding between ASADA and the AFL. All of that is recorded by the primary judge. All one needs to do, then, we say, is join those facts together to come to some sensible conclusion as to what was going on, namely, that information was being supplied under the compulsion provided by the AFL.
ASADA was reaping the benefit of that in circumstances where it lacked its own authority and in circumstances where it had brought [the AFL] into the room to provide that compulsion in order to get around the absence of coercive power. It had done that, we say, unlawfully, and so the presence of the AFL was unlawful. That’s why the collection of the information – because let us assume, quite properly… I think it’s a reasonable assumption, a reasonable inference, that the players answered because they were told they had to answer.
That was pressed not only at the beginning of the interview but in the notices that were sent out before the interview. “You’ve got an obligation to answer questions. If you don’t, there’s likely to be a sanction imposed by the AFL.” I don’t think, with respect, the court could or should ignore what surrounded each interview: the element of compulsion derived or based on the AFLs own rules and its presence in the interview room.
(3) The principle of legality applied and, in the absence of unmistakeable and unambiguous language, the legislature is taken not to have intended to interfere with basic rights, freedoms or immunities – including the rights to refuse to answer questions on the grounds of self-incrimination or exposure to penalty.
(4) The ancillary power in s 22 and/or function in s 21(1)(o) of the ASADA Act did not add a new or different means of carrying out an investigation of anti-doping rule violations. Here the appellant referred to Clough v Leahy, Lacey v Attorney-General (Qld), Shanahan v Scott, Anthony Lagoon and Plaintiff S4/2014.
(5) The express grant of power to conduct an investigation into anti-doping rule violations involved a denial of power to do the same thing free from the conditions prescribed by the provisions of the ASADA Act, citing Plaintiff S4/2014 at 546 [43], The Australian Boot Trade Employees’ Federation v Whybrow & Co (1910) 11 CLR 311 (Whybrow’s Case) at 338 and The Chief Examiner v Mary Brown [2013] VSCA 167 (The Chief Examiner v Mary Brown).
195 We deal with these arguments in the following paragraphs, although not always in the order the appellant put them. The appellant’s proposition that it was irrelevant that ASADA itself did not use any coercive power must fail. As reference to the preceding paragraph shows, the appellant’s proposition depended on the appellant’s contentions that: (1) the AFL had no post-referral power, which we reject, for the reasons already stated; and (2) the primary judge misinterpreted the contractual arrangements between the AFL on the one hand and Essendon, the players and the appellant on the other, which we decline to entertain, again for the reasons already stated.
196 The appellant’s submissions about consent and waiver, turned in part on the rejected contentions to which we have just referred: see [195] above. At the hearing, however, senior counsel for the appellant also advanced a further notion about lack of “free” consent; and, in reply, he submitted that “assuming that the AFL Anti-Doping Code did amount to consent by the players and [the appellant] … to the answering of questions, that couldn’t be a waiver of privilege as against ASADA in the context of these interviewees because … ASADA could only take advantage of those contractual terms … by itself stepping outside the limits of its statutory power”. This was to repeat the appellant’s Primary Submission, which, as we are explaining, we reject.
197 We reject the appellant’s submissions about consent and waiver. First, as the primary judge found, upon becoming a player or official, the appellant and the 34 Players had voluntarily accepted the obligations under the AFL’s Player Rules and Anti-Doping Code to attend interviews and answer questions fully and truthfully, or face possible sanction by the AFL: PJ, [67]-[68]. As the primary judge stated, “[t]here [was] … no suggestion … that Mr Hird or any of the 34 Players 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 football for Essendon in the AFL competition”: PJ, [131]-[133] and [147]. Secondly, the appellant and the 34 Players were all legally represented. They and their lawyers were on notice before and at the interviews that the AFL and ASADA proposed to conduct the interviews together and they could have been in no doubt about the purposes of the interviews. They also knew that the AFL was invoking r 1.8 of its Player Rules and r 12.7 of its Anti-Doping Code when it required answers to the interview questions: see PJ, [233], [427]. Thirdly, the primary judge found, and the appellant did not dispute, that neither the appellant nor the 34 Players objected to the presence of either the AFL or ASADA at their interviews; and, moreover, no-one objected to answering any question, whether on the ground that its answer might incriminate him or expose him to a civil penalty or otherwise: see [22]-[23] above. Indeed, the primary judge specifically found (at [256(i)]) that the appellant and the 34 players cooperated with the investigation and did not claim to exercise the privilege against self-incrimination: see also PJ, [234].
198 In the circumstances outlined above, we can discern no basis for the appellant’s submission that there was an absence of “free consent” or that the appellant did not waive any common law rights he may have had to claim the privileges against self-incrimination or exposure to penalty when he participated in the interview conducted by ASADA and the AFL: see Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 423, Australian Securities and Investments Commission v Mining Projects Group (2007) 164 FCR 32 at 39-40 [19]-[22] and Bayeh v New South Wales (1999) 108 A Crim R 364 at 370-371 [43].
199 Accordingly, for these reasons and for the reasons set out below, we reject the appellant’s submissions so far as they relied on the common law rights to claim privileges against self-incrimination or exposure to penalty.
4.4 The scope and operation of the power granted by s 22 of the ASADA Act
200 As we have already indicated, we discern nothing in the ASADA Act, the 2006 Regulations or the NAD Scheme that would prevent ASADA and the AFL working collaboratively to investigate matters within their complementary areas of responsibility. On the contrary, as already set out, the legislative regime was in relevant respects predicated on cooperation between a relevant SAB, here the AFL, and ASADA. For the reasons stated hereafter, we reject the appellant’s submission that the authority conferred by cl 3.27 of the NAD Scheme and the power conferred by s 22 of the ASADA Act were insufficient to enable the CEO of ASADA to carry on an investigation into anti-doping rule violations in collaboration with the AFL and, as part of that collaboration, to interview the appellant and the 34 Players together, with the consequence that ASADA benefitted from the AFL’s use of its compulsory powers.
201 We do not consider that this appeal is governed by the principle in Shanahan v Scott, which involved a challenge to the validity of a provision of the Egg and Egg Pulp Marketing Board Regulations 1935 (Vic). Referring to the conferral of a regulation-making power “for all or any purposes … necessary or expedient for the administration of the Act”, the majority judgment in Shanahan v Scott at 250 stated that “such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary”. The challenged regulation conferred a discretionary power to prohibit the cold storage of eggs. A majority of the High Court held that it went beyond the scope and general operation of the legislation which was to give the Board the control of eggs with a view to marketing them: Shanahan v Scott at 253-255. The subject of the challenge and the terms of the relevant provision in that case are far removed from the subject and terms of s 22 of the ASADA Act and the NAD Scheme. This appeal does not involve any challenge to the 2006 Regulations and the appellant did not seek to impugn the validity of the NAD Scheme. In any event, as already stated, this was not a case in which ASADA sought to “extend the scope or general operations of” its governing legislation by any particular act of its own, as, for example, by purporting to exercise some coercive power.
202 Further, we do not consider that the appellant’s case is assisted by the decision in Anthony Lagoon. That case concerned a challenge to a decision by the Aboriginal Land Commissioner that purported to authorise the Northern Land Council to enter on land to obtain information for the hearing of land claims, without the landowner’s consent. A majority of a Full Court of this Court held that the decision was beyond power. This was because the statutory conferral of power on the Commissioner to “do all things necessary or convenient for or in connexion with the performance of his functions” did not authorise the decision. Sweeney and Northrop JJ, who agreed in the result, differed in their reasons; and Ryan J dissented.
203 Sweeney J held that the power did not authorise what would otherwise have been a trespass at common law: Anthony Lagoon at 567-568. Sweeney J said (at 568):
In my opinion, had the legislature intended to grant to the Commissioner a power to make orders, give directions and confer authorities of the kind contained in the instrument, it would have expressed that intention “with irresistible clearness: George Wimpey & Co Ltd v British Overseas Airways Corp [1955] AC 169 at 191 per Lord Reid. It would not have simply relied upon s 51, using a common form of words which evince no intention to “depart from the general system of law” … .
204 Northrop J held that what appeared to be a legally enforceable order “but which, in law, is not legally enforceable, should not be permitted to stand”: Anthony Lagoon at 577. Ryan J, in dissent, held that, reading the relevant statute as a whole, the ‘necessary or convenient’ power authorised the decision.
205 The respondent distinguished Anthony Lagoon on the basis that in that case an “incidental” statutory power could not be relied on to interfere with the exercise of a landowner’s general law right to refuse access to the landowner’s land. This reflected the reasons for Sweeney J’s decision in that case. We accept that there is a distinction between Anthony Lagoon and this case, because, as already stated, we accept that each of the appellant and the 34 Players consented to answer the questions asked of him at his interview, in conformity with his obligations under the general law of contract. This was not a case like Anthony Lagoon, where a regulatory authority sought to exercise a compulsory power that purported to interfere with a fundamental common law right.
206 We note too that the specific reasons for Northrop J’s decision in Anthony Lagoon have little bearing on the present case (except in a very general way), whilst Ryan J’s overall approach tends to assist the respondent, rather than the appellant, by emphasising that, when it comes to determining the scope of a ‘necessary and convenient’ power, the statute and its relation to the subject matter in question must be considered as a whole. We return to this below.
207 Nor do we consider that the appellant’s case is assisted by the discussion in Plaintiff S4/2014. Plaintiff S4/2014 involved a challenge to action taken by the relevant Minister concerning the grant of a temporary safe haven visa and a temporary humanitarian concern visa under the Migration Act 1958 (Cth). The case is relevant, if at all, because of some comments in the High Court’s reasons about statutory construction. The appellant relied particularly on paragraph [43] of their Honour’s reasons. This must be read in context. Paragraphs [41]-[44] are in the following terms:
[41] Where, as here, an unlawful non-citizen is detained for the purpose of considering the exercise of power under s 46A, thereby prolonging detention, other powers given by the Act are to be construed as not permitting the making of a decision which would foreclose the exercise of the power under s 46A before a decision is made, thus depriving the prolongation of detention of its purpose.
Construing the Act
[42] The proposition just stated is a conclusion about the proper construction of the Act. As was said by four members of this court in Project Blue Sky, “[t]he meaning of [a] provision must be determined ‘by reference to the language of the instrument viewed as a whole’”. And an Act must be read as a whole “on the prima facie basis that its provisions are intended to give effect to harmonious goals”. Construction should favour coherence in the law.
[43] It is these fundamental principles which underpin what is sometimes called the “Anthony Hordern principle” and the proposition on which that principle depends: “that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course”.
[44] Section 46A provides both a prohibition and the means by which the minister may release a person from the effect of the prohibition. Subsection (1) provides, in effect, that an unauthorised maritime arrival may not make any valid application for a visa. Subsections (2)–(7) provide the means by which that bar or prohibition may be lifted and the course that must be followed if it is. There are two steps in the process provided by s 46A(2)–(7) for permitting a person to whom the section applies to make a valid application for a visa: first, deciding whether to consider the exercise of the power and, second, deciding whether to permit the making of a valid application. …
(Footnotes omitted)
208 The reference to the “Anthony Hordern principle” in this passage is a reference to Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7. In the same context, their Honours also refer (in a footnote) to Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566. Reference to these two cases confirms that the observations at [43] in the above passage are concerned with the effect of a statutory provision of a particular kind, which stipulates that a particular thing should be done upon the affirmative satisfaction of an identified condition, thereby impliedly excluding (in the typical case) the doing of the act authorised under other circumstances than those defined: see also Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 (Leon Fink) at 678.
209 Broadly speaking, it is for the party asserting the lack of power to make good its claim: cf. Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117 (Kathleen Investments) at 145-146 (Stephen J) and 153-155 (Mason J). None of the relevant provisions support the negative implication for which the appellant contended. There was no provision of this kind governing ASADA’s investigatory authority: cl 3.27(1) of the NAD Scheme conferred a general authority to investigate “possible anti-doping rule violations that may have been committed by athletes or support persons”; and, whilst such an investigation was required to comply, at least substantially, with the WADA Code and other standards, non-compliance did not affect the validity of the investigation: cll 3.27(2) and (3). As previously observed, since the conferral of authority in cl 3.27 fell within s 21(1)(b) of the ASADA Act, ASADA’s (specifically the CEO’s) functions also included doing anything incidental, or conducive, to the performance of such an investigation: s 21(1)(o). Moreover, by virtue of s 22, ASADA (specifically the CEO) had the power to do all things necessary or convenient to be done for or in connection with the performance of the CEO’s investigatory function and any ‘incidental or conducive’ function.
210 The Parliament has commonly used provisions like s 22 of the ASADA Act to ensure that a statutory body has sufficient power to discharge its functions in circumstances that the Parliament could not practically set down, although they lie within the contemplation of its enactment. The authorities that have discussed the scope of a ‘necessary’ or ‘convenient’ power such as that in s 22 of the ASADA Act support the general proposition that s 22 is to be construed in conformity “with the width of the language in which it is expressed”: Leon Fink at 679 (Mason J; Barwick CJ and Aickin J agreeing). As Ryan J stated in Anthony Lagoon at 585, “[t]he language of a grant of power to do ‘all things necessary or convenient to be done for or in connexion with the performance of’ an enumerated list of functions is of considerable width”. (Although Ryan J was in dissent in the result of the case, Sweeney J agreed with this point: 567.) Plainly enough, the scope of a grant of power of this kind should be interpreted in light of the functions that the Parliament has conferred on the body in question: see Leon Fink at 677-679; Kathleen Investments at 143, 145-146 (Stephen J) and 153-155 (Mason J); Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 at 462; and Anthony Lagoon at 585 (Ryan J). Where, as here, the legislature confers a function in general terms, a grant of power in the terms of s 22 will, generally speaking, have a commensurably wide scope: Anthony Lagoon at 590 (Ryan J) and Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 at 410. In this case, the functions given to the CEO in s 21(1) of the ASADA Act (relevantly in ss 21(1)(b) and (o)) and in cl 3.27 of the NAD Scheme are conferred in general terms, and the CEO is given a wide discretion as to the means by which these functions are fulfilled, including in relation to the conduct of investigations into possible anti-doping rule violations. Having regard to the foregoing, we are confirmed in our conclusion that s 22 is to be construed broadly, and should not be read as subject to an implied prohibition against collaborating or cooperating with a SAB in the interviews conducted with sports participants during an anti-doping investigation.
4.5 Asserted absence of an express finding about the statutory basis for ASADA’s investigation
211 Part of the appellant’s complaint about the primary judge’s decision was the asserted absence of any express finding on the statutory basis for ASADA’s investigation. In written submissions the appellant stated, under the heading “[n]o source of power for the investigation”, that the primary judge:
…failed to establish any statutory basis that authorised [ASADA or the CEO] to enter into, and implement, an agreement with the [AFL] to investigate anti-doping [rule] violations under the [ASADA Act] or to institute and conduct ASADA’s investigation in concert with the AFL, as they did.
212 As outlined at the beginning of these reasons, the primary judge held that, although there was no express power in the ASADA Act to conduct a “joint investigation”, s 22 gave the CEO the power to do all things “convenient” to be done “in connection” with the performance of his or her functions, which, by virtue of s 21(1)(o), included doing anything “incidental to”, or “conducive to”, the performance of those functions: PJ, [407]. His Honour found that calling upon the assistance of a SAB such as the AFL, depending on the way it occurred, could be convenient to the performance of an investigatory function into possible violations of the anti-doping rules, or in monitoring compliance by the AFL with its own anti-doping policies and practices: PJ, [408] and [421]. Bearing in mind that it was for the appellant to make out his case at first instance, his Honour’s findings and judgment show that he was not satisfied that the appellant had made out his case that, in conducting the investigation with the AFL, ASADA acted beyond power. His Honour was required to do no more.
213 As we have indicated, we too would reach the same conclusion, having regard to the ASADA Act and the NAD Scheme, including their purposes and particular provisions, and to the specific factual findings made by the primary judge. In any event, ASADA’s investigation under cl 3.27 was self-evidently assisted by the AFL’s cooperation and, given the admitted advantage to ASADA that formed the basis of the appeal, by the AFL’s participation in the interviews of players and personnel. These collaborative arrangements, which were for the purpose of the investigation of anti-doping rule violations, would therefore constitute the doing of something convenient, if not necessary, to be done for the performance by the CEO of ASADA of the CEO’s functions.
214 We reject the appellant’s criticism that his Honour erred “in using a contractual lens through which to view his submissions”, especially his submissions about ASADA facilitating the abrogation of the interviewees’ common law right to claim privilege against self-incrimination. The present appeal shows how the legislative framework governing ASADA and the SABs interacted with the contractual arrangements between the AFL on the one hand and Essendon, its players and personnel on the other. The AFL’s Anti-Doping Code and Player Rules are not, of course, part of the legislative framework. As we have seen, however, in the context of the NAD Scheme, they are not, for this reason, foreign to the Scheme or the legislative regime. The compulsory contractual powers that were exercised by the AFL in this case constituted a natural means for the AFL to fulfil some of its obligations under the sporting administration body rules, such as, for example, cl 2.04(c) (obliging the AFL to ensure it had the authority to enforce its anti-doping policy) and cl 2.04(n) (obliging the AFL to ensure that its members cooperated with ASADA). In this way, the contractual powers with which we are concerned fell within the contemplation of the NAD Scheme. In the context of the NAD Scheme, it might reasonably be expected that, from time to time, depending on the circumstances, the AFL might exercise these powers over a sports participant under its contractual arrangements in meeting its obligation to cooperate with an investigation by ASADA into possible anti-doping rule violations. In such a case, ASADA’s investigation would benefit, but it can scarcely be supposed that, because the ‘benefit’ was obtained in exercise of the AFL’s compulsory contractual powers, it was one that ASADA was not authorised to receive.
215 The provisions with which we are presently concerned provide no proper basis for excluding close and on-going investigative cooperation between ASADA and the AFL, including a cooperative interview process in which ASADA and the AFL conducted interviews together: cf. Taylor at 482-483 [37]-[40] (French CJ, Crennan and Bell JJ). There is nothing in these provisions that would deny that ASADA could properly benefit from such a cooperative investigatory process. The contrary proposition was at the bottom of the appellant’s case, including his case about the abrogation of the common law rights to claim privileges against self-incrimination and exposure to penalty.
216 When ASADA and the AFL arranged to interview the appellant and the 34 Players together, ASADA was not pursuing a means of investigation that lay outside its statutory authority. It is significant that ASADA did not purport to exercise any coercive power. Rather, it acted, on a cooperative basis, with the AFL, which exercised the compulsory powers that had been granted to it by the interviewees pursuant to contract: cf. Clough v Leahy at 159, where Griffith CJ stated “an inquiry of itself is lawful and not forbidden by law”. A fortiori, in the present case, where the investigation is conducted on express authority under cl 3.27 of the NAD Scheme.
217 The presumption of legality to which the appellant referred from time to time (i.e., that the legislature is taken not to have intended to interfere with fundamental common law rights (cf: Lacey v Attorney-General (Qld) at 591-592) such as the right to refuse to answer questions on the grounds of self-incrimination or exposure to penalty) has little, if any, relevance in a case such as this where the statutory body did not in fact exercise, or purport to exercise, any coercive power.
218 We reject the appellant’s submission that ASADA has added to the efficacy of its investigatory power by pursuing “some further means outside the limits of the power conferred”, to adopt the language of Isaacs J in Whybrow’s Case at 338. This is not a case like The Chief Examiner v Mary Brown, where the challenged exercise of power, in Tate JA’s words (at [90]), not only “travel[led] beyond the limits of the power … conferred … [but was also] in direct contravention of the mandatory requirement” of the relevant statutory provision.
219 For the reasons outlined, we discern no error in the primary judge’s determination that the manner in which ASADA conducted its investigation into the possible anti-doping rule violations was not ultra vires the ASADA Act, the 2006 Regulations and the NAD Scheme.
Second Submission considered: whether the investigation was conducted for extraneous purposes
220 The appellant’s submission concerning extraneous purposes added little, if anything, to his Primary Submission that the manner in which ASADA conducted the investigation travelled beyond its authority under the legislative regime. Based on the evidence before his Honour and the admissions made by the parties, the primary judge found, as matters of fact, that ASADA’s purpose was to investigate allegations of anti-doping violations: PJ, [256(o)(i)]. His Honour also found (at [256(c)-(e)] that:
ASADA would have commenced an investigation into Essendon, its players and personnel without the invitation of Essendon or Mr Hird, and without their public display of support and co-operation.
In light of ASADA’s statutory responsibilities, upon becoming aware of possible anti-doping violations, ASADA would have investigated Essendon, its players and personnel (and probably other clubs) with or without the co-operation of the AFL.
ASADA would have decided to investigate Essendon, its players and personnel (and probably other clubs) without recourse to the AFL’s contractual powers to compel Mr Hird and the 34 Players to answer questions and provide information as requested by the AFL.
As noted, the appellant did not challenge his Honour’s factual findings, although he did challenge their characterisation.
221 There can be no doubt that the purpose identified by his Honour was a proper purpose: as we have seen, the authority conferred on ASADA by cl 3.27 was “to investigate possible anti-doping rule violations”.
222 As already stated, we hold that the manner in which ASADA conducted the investigatory interviews was within the contemplation of the legislative scheme. In view of this, it can scarcely be supposed that ASADA acted for an extraneous purpose. It cannot be an improper purpose for the CEO of ASADA to intend to conduct an investigation under cl 3.27 by facilitating the acquisition of information in a lawful way.
223 Accordingly, we would reject the appellant’s submission as to improper purpose.
Third Submission considered: whether s 71 of the ASADA Act infringed
224 For the reasons set out earlier, we reject the appellant’s submission to the effect that the interview process infringed s 71 of the ASADA Act or, for that matter, was inconsistent with cl 4.21 of the NAD Scheme.
Fourth Submission considered: whether common law rights infringed
225 For the reasons set out earlier, we reject the appellant’s submission to the effect that ASADA acted unlawfully in facilitating the abrogation of the interviewees’ common law rights to claim the privileges against self-incrimination or exposure to penalties, by engaging the AFL to participate in ASADA’s investigation.
Fifth Submission considered: the claimed invalidity of the show-cause notices
226 For the reasons stated above, the appellant has failed to establish that the notices issued under cl 4.07A of the NAD Scheme were based on information that was unlawfully obtained. The Fifth Submission must therefore fail.
Sixth Submission
227 Having regard to the conclusions that we have reached, it is unnecessary to discuss further the appellant’s Sixth Submission, which we note was not the subject of detailed argument at the hearing. As already indicated, for the same reason, we do not find it necessary to consider the respondent’s notice of contention.
disposition
228 For the foregoing reasons, we would dismiss the appeal, with costs.
I certify that the preceding two hundred and twenty-eight (228) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Besanko and White. |
Associate:
