FEDERAL COURT OF AUSTRALIA
Anti-Doping Rule Violation Panel v XZTT [2013] FCAFC 95
FEDERAL COURT OF AUSTRALIA
Anti-Doping Rule Violation Panel v XZTT [2013] FCAFC 95
CORRIGENDUM
1. In paragraphs 60 and 87 of the Reasons for Judgment, subclause 2.04(m) of the NAD Scheme be amended to read:
(m) accept findings by ASADA, ensure an infraction notice is issued in accordance with ASADA's recommendations in the case of an adverse finding, and enforce penalties imposed in accordance with ASADA's recommendation unless otherwise determined by a sporting tribunal…
2. In paragraph 70 of the Reasons for Judgment:
• All references to ‘The CEO’, ‘The [CEO]’, ‘the CEO’, ‘[the CEO]’, ‘The Panel’, ‘the Panel’, ‘[the Panel]’, and ‘the [Panel]’ in clauses 4.06-4.22 of the NAD Scheme be replaced with the word ‘ASADA’.
• Clauses 4.07-4.10 of the NAD Scheme be amended to read:
4.07 Notification of possible [Violation]
(1) This clause applies if:
(a) ASADA receives evidence or information showing a possible [Violation] other than an adverse analytical finding; and
(b) following a review of the evidence or information, ASADA determines there is a possible [Violation] that warrants action by ASADA.
(2) ASADA must notify the participant in writing of the possible [Violation]. The notice must include:
(a) details of the possible [Violation]; and
(b) that the participant (or a person on the participant's behalf) may, within the response period, give ASADA a written submission setting out information or evidence relating to the possible [Violation], or waiving this right to make a submission; and
(c) that if the participant (or a person on the participant's behalf) does not give ASADA a written submission or notice within the response period, the participant is taken to have waived the participant's right to make a submission; and
(d) that, after considering any submission made by the participant (or a person on the participant's behalf), ASADA may make an entry on the Register relating to the possible [Violation]; and
(e) that ASADA may make recommendations to relevant sporting organisations about the consequences of the possible [Violation]; and
(f) details of other parties that will be notified of the entry on the Register; and
(g) that ASADA may also publicly disclose details of the entry on the Register.
(3) For this clause, response period means:
(a) within 10 days after receiving the notice; or
(b) if ASADA considers that a shorter period is reasonably necessary due to the circumstances (eg a forthcoming international event or national event) - a shorter period notified by ASADA in writing to the participant before the end of the original response period; or
(c) a longer period notified by ASADA in writing to the participant.
(emphasis added)
Division 4.3 Register of Findings
4.08 Establishment and maintenance of Register of Findings
For paragraph 13 (1) (i) of the Act, ASADA must establish and maintain a Register of Findings for the purpose of recording findings of ASADA relating to adverse analytical findings and other possible [Violations].
4.09 Finding - [Violation]
(1) This clause applies if:
(a) a participant has received notification under clauses 4.06 or 4.07; and
(b) the response period for the notification has ended.
(2) ASADA must, as soon as practicable, consider any submissions made by the participant and decide whether or not to make an entry on the Register.
(3) If ASADA decides not to make an entry on the Register, ASADA must notify the participant and any other parties that have been notified of the adverse analytical finding or possible [Violation].
4.10 Entry of finding on Register
As soon as practicable after deciding to make an entry on the Register, ASADA must enter the following information on the Register:
(1) the name of the participant;
(2) if the participant is an athlete:
(a) the athlete's date of birth;
(b) the athlete's sport;
(3) the nature of the finding relating to the adverse analytical finding or other possible [Violation];
(4) the date of the adverse analytical finding or other possible [Violation];
(5) any other details relevant to the adverse analytical finding or other possible [Violation] that ASADA considers should be entered on the Register.
• In subclauses 4.11(1)(a) and 4.11(2)(a), the word ‘other’ be inserted before word ‘possible’ and the word ‘non-presence’ be deleted.
• The word ‘Reviews’ in the heading to clause 4.12 be replaced with the word ‘Review’.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justices North, Cowdroy and McKerracher. |
Associate:
Dated: 25 October 2013
IN THE FEDERAL COURT OF AUSTRALIA | |
ANTI-DOPING RULE VIOLATION PANEL Applicant/Cross-Respondent | |
AND: | Respondent/Cross-Claimant |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The appeal is allowed.
2. The decision in XZTT v Anti-Doping Rule Violation Panel [2012] AATA 728 is set aside.
3. The Register of Findings be amended (if necessary) to reflect these reasons for judgment.
4. The cross-appeal is dismissed.
5. Written submissions on costs and continuation of the non-publication order be filed and served by the respondent/cross-claimant within 14 days.
6. Thereafter written submissions in response be filed and served by the applicant/cross-respondent within 14 days.
7. Determination of those remaining issues be resolved on the papers, unless any party requests an oral hearing.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | VID 913 of 2012 |
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL |
BETWEEN: | ANTI-DOPING RULE VIOLATION PANEL Applicant/Cross-Respondent
|
AND: | XZTT Respondent/Cross-Claimant
|
JUDGES: | NORTH, COWDROY AND MCKERRACHER JJ |
DATE: | 19 August 2013 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
THE COURT:
1 The respondent, an elite Australian cyclist (the Athlete), apparently tested positive for a very small amount of the principal metabolite of cocaine following international competition in China in 2010. This result is known as an adverse analytical finding. Details relating to this were entered by the applicant (the Panel) into a statutory register. There were significant delays in the Athlete being notified of the test result prior to the Panel making the entry. In the Administrative Appeals Tribunal (the AAT) the Athlete challenged the entry. The AAT partially upheld his complaints.
2 This is an appeal and cross-appeal from that decision. In XZTT v Anti-Doping Rule Violation Panel [2012] AATA 728 the AAT concluded that it must set aside the two decisions of the Panel to make an entry in the Register of Findings (Register) under provisions of the National Anti-Doping Scheme (NAD Scheme). The AAT concluded that both the Australian Sports Anti-Doping Authority (ASADA) and the Panel each misconceived their respective responsibilities under the Australian Sports Anti-Doping Authority Act 2006 (Cth) (the ASADA Act), the Australian Sports Anti-Doping Authority Regulations 2006 (Cth) (the ASADA Regulations) and the NAD Scheme. The NAD Scheme is set out in Sch 1 to the ASADA Regulations. It is intended to conform with and reflect the Code adopted by the World Anti-Doping Agency (the WADA Code).
The role of the Panel
3 A central question to the present dispute is what function the Panel performs.
4 Since 2006 ASADA has had responsibility for the establishment of the NAD Scheme. That scheme confers investigative and other powers on ASADA. ASADA also presents cases on behalf of sporting administration bodies (National Federations) in tribunals. The NAD Scheme deals with sample collection, sample testing, investigation of athletes and the establishment and creation of entries on the Register.
5 ASADA is also responsible for ensuring compliance with the WADA Code by National Federations as well as compliance by those bodies with the NAD Scheme. National Federations adopt their own anti-doping policy and submit to ASADA being authorised to conduct testing and manage results.
6 By way of overview, the Panel was established under Part 5 of the ASADA Act: s 40. Section 41 sets out its functions including those in the NAD Scheme. Broadly speaking the functions of the Panel are to:
establish and maintain the Register for the purpose of recording adverse ‘findings’ of the Panel relating to anti-doping rule violations (Violations). (There is a fundamental issue between the parties as to the meaning of ‘findings’ in the context of entries on the Register.);
make and decide whether or not to enter a finding on the Register; and
recommend, where relevant, appropriate sanctions for possible Violations.
7 Article 3.2 of the WADA Code, with which the NAD Scheme is to conform, presumes that laboratories have conducted their functions in accordance with strict procedures. This is a rebuttable presumption. If an athlete rebuts the presumption by showing a departure which may reasonably have caused an adverse finding, then the burden shifts back to the particular anti-doping organisation to show that the departure did not cause the finding. Departures which do not actually cause adverse findings do not invalidate the results.
8 While criticism has been raised as to the strict liability approach and the shift of the evidentiary burden to the athlete, it is the system to which the athlete contracts. Not only are challenges by an athlete limited, but there are usually standard sanctions for Violations. There is a mandatory two year or lifetime sanction depending upon the offence. There are some provisions which may mitigate against the harshness of the penalty.
9 The AAT accurately noted (at [54]) that the Panel was confronted with ‘a complex interplay of overlapping regimes of international sporting governance’. We would also agree with the AAT’s observations (at [120]) that timeliness of the process was an important matter and (at [123]) that the faults and delays that the Athlete experienced in this instance were egregious. They were not caused by the Panel or ASADA but by the Union Cycliste Internationale (UCI), the world governing body for cycling.
10 The AAT’s primary reason for reaching its conclusion was that the Panel’s entries recorded a ‘possible’ Violation. The AAT held that as a matter of law, such a finding was not open to the Panel. It considered that the Panel was required either to make a finding as defined in cl 1.05 of the NAD Scheme meaning ‘a finding by the Panel that an athlete or support person has committed [a Violation]’ (emphasis added) or not. The AAT remitted the matter to the Panel with a direction that an entry be made in the Register ‘for the presence of a prohibited substance’ (emphasis added). The Panel appeals.
11 The primary basis for the Athlete’s cross-appeal is that the AAT should have determined that the serious delay in notifying him of the findings relating to his sample vitiated the test.
12 Two main issues arise in this appeal. The first is whether the Panel conducts any process such as a hearing under which it is required to afford procedural fairness to a person to be possibly named in the Register before making the entry. The second main issue is whether non-compliance with notification timeframes leading to the recording of the entry renders the process void such that the entry should not have been recorded by the Panel.
13 The Athlete was a cyclist registered at the elite level with Cycling Australia which was the official National Federation for the purposes of the UCI Regulations. In October 2010, he travelled to China to take part in a number of international events, subject to the jurisdiction of the UCI. Contractually, the Athlete had acknowledged that he was bound by the UCI Anti-Doping Regulations, the WADA Code and its international standards to which the UCI Anti-Doping Regulations refer. He was therefore required to and did submit himself to drug testing.
14 On 23 October 2010, the Athlete participated in a one day UCI race in China. After the race he was required to supply a urine sample. He gave two samples, an A and a B sample. They were then sent to the National Anti-Doping Laboratory in Beijing (Laboratory). The Laboratory received those samples two days later. A test was conducted by the Laboratory on the A sample on 26 to 27 October 2010. It revealed a very small amount – 42 nanograms per millilitre (ng/mL) – of benzoylecgonine, the principal metabolite of cocaine. Metabolite is defined in the NAD Scheme to mean ‘a substance produced by a biotransformation process’.
15 Certain drugs are prohibited for use only during competition or ‘In-Competition’. Others, particularly masking agents, are prohibited at all times. Cocaine is prohibited from use In-Competition.
16 There is a further distinction between ‘use of’ and ‘presence of’ prohibited substances. While the use of cocaine is prohibited only In-Competition, both the WADA Code and the UCI Anti-Doping Rules also establish a separate offence for the ‘presence’ of any prohibited substance (or its metabolites) in a sample taken from an athlete In-Competition.
17 While the initial testing process moved with reasonable efficiency, there was a subsequent delay of significant proportions. On 2 November 2010, the Laboratory distributed its results to the UCI and on 4 November 2010, the Laboratory formally reported its A sample analysis to the UCI confirming the presence of the metabolite of cocaine. The ‘presence’ was at a level lower than the threshold generally used for establishing a positive finding of cocaine use (100 ng/mL).
18 At this point, things went awry. Notwithstanding UCI’s obligation under Art 7.2 of the WADA Code to promptly notify the Athlete, it was over four months before he was informed of anything about the test results. In the meantime, the Athlete had continued to participate on the professional riding circuit and had continued to seek sponsors. Shortly after the race in China, he signed a contract in January 2011, which included a provision to the effect that if he were found to have breached anti-doping rules, the contract would be terminated. The consequence to the Athlete of such termination was financially significant.
19 It was not until 25 March 2011 that the Athlete was informed by UCI who wrote to him while he was competing in Belgium to inform him that UCI had received notification from the Laboratory of the adverse analytical finding from his A sample. (The AAT (at [18]) correctly concluded that ‘UCI was in gross breach’ of its own Anti-Doping Rules and the WADA Code provisions governing results management.)
20 The WADA Code (by Art 7) and the UCI Anti-Doping Rules (by Ch VII) give the Athlete the entitlement to have the A sample verified by the testing of the B sample. The Athlete is entitled to be present either in person or by a representative during the opening and analysis of the B sample (remembering that the B sample is initially provided by an athlete at the same time as the A sample).
21 The UCI Anti-Doping Rules provide that the analysis of the B sample is to take place within seven working days starting on the first working day following notification by the laboratory of the A sample. This period had expired months previously, on 11 November 2010. The Athlete had no idea that his rights had been triggered until the communication in late March from the UCI. The Athlete informed UCI from Europe that he wanted his B sample to be analysed. He waived his right to be present.
22 On 4 April 2011, UCI requested the Laboratory to proceed with the B sample analysis. The testing occurred and was reported. The Laboratory advised that ‘the presence of cocaine metabolite and hydrocodone in the sample … were confirmed. The result of this B sample is consistent with the corresponding A sample’.
23 It was two weeks after this that UCI wrote to the Athlete informing him of the outcome of the B sample analysis. He was told that UCI would be writing to Cycling Australia requesting Cycling Australia to open disciplinary proceedings.
24 Once again, a month passed before the Athlete heard anything further. The information he received was not from Cycling Australia but, rather, from the General Manager, Anti-Doping Programs and Legal Services, ASADA. There were various exchanges and then the Athlete, on 6 July 2011, filed detailed written submissions in reply to the communications he had received. In those submissions the Athlete:
denied, as he has at all times, any use of a prohibited substance;
submitted that the breaches by the UCI of its own rules precluded the Panel exercising jurisdiction;
submitted in the alternative the delay occasioned by those breaches had created circumstances so unfair as to preclude any adverse finding being made;
further submitted that the miniscule amount of the prohibited substance was inconsistent with his use of a prohibited substance In-Competition having regard to the relevant burden of proof and the standard of proof being that of ‘comfortable satisfaction’ by cl 1.03 of the NAD Scheme and Art 3.1 of the WADA Code.
25 Two further months passed before the Panel convened to consider the Athlete’s case on the basis of a document relating to him and entitled ‘Privileged & Confidential [Panel] Report’. This document was prepared by ASADA, by way of a submission to the Panel. The AAT characterised it as being effectively a ‘prosecution brief’ against the Athlete. The AAT noted (at [35]) that while it was not critical of ASADA presenting its case against the Athlete to the Panel ‘there was no independent advice available to assist the [Panel] to perform its functions’.
26 In the submission made by ASADA after the analysis was conducted, it contended there was then enough evidence for the Panel to be ‘prima facie satisfied that [the Athlete] has possibly used cocaine in-competition’ (emphasis added). It rejected any suggestion that delay in the testing and notification processes had contributed to any prejudice to the Athlete.
27 ASADA proposed that the Athlete be subject to a period of two years ineligibility from competitive cycling to commence from 4 November 2010 and that he be disqualified and stripped of any medals, points and prizes awarded to him on 23 October 2010.
28 What precisely took place on the Panel’s consideration of the ASADA submission is unknown. As the AAT points out (at (42]), the only record of the Panel’s deliberations when it met on 8 September 2011 is that a box marked ‘agree’ was ticked for each of the findings proposed by ASADA and a similar box marked ‘agree’ was ticked in relation to its recommendations as to penalty. The signature of each of the Panel members was then individually appended under each recommendation in order to evidence the making of their decisions.
29 The text of each of the Panel members’ individual decisions regarding entries in the Register was as follows:
Finding (Adverse Analytical Finding) – clause 4.09 of the NAD scheme
After reviewing the material relating to matter #2011/290, I am satisfied that:
a. the athlete was provided with an opportunity to make a submission under clause 4.06 of the NAD scheme;
b. the submission period has now passed; and
c. the athlete made a submission.
I have considered the athlete’s submission and in my view [the Panel] should make the following entries on the Register under clauses 4.09 and 4.10 of the NAD scheme.
Athlete Name: XZTT
Sport: Cycling
DOB: dd/mm/yyyy
Date of possible ADRV: 30 April 2011
Possible ADRV: Presence (Adverse Analytical Finding)
Prohibited Substances: Benzoylecgonine (a metabolite of cocaine)
In accordance with clause 4.10 of the NAD scheme this entry should be placed on the Register as soon as practicable.
Finding (Possible Use) – clause 4.09 of the NAD scheme
After reviewing the material relating to matter #2010/290, I am satisfied:
a. the athlete was provided with an opportunity to make a submission under clause 4.07 of the NAD scheme;
b. the submission period has now passed; and
c. the athlete made a submission.
I have considered the athlete’s submission and in my view [the Panel] should make the following entry on the Register under clauses 4.09 and 4.10 of the NAD scheme.
Athlete Name: XZTT
Sport: Cycling
DOB: dd/mm/yyyyy
Date of possible ADRV: 23 October 2010
Possible ADRV: Use
Substance: Cocaine
In accordance with clause 4.10 of the NAD scheme this entry should be placed on the Register as soon as practicable.
30 The Athlete was informed on 14 September 2011 of the Panel’s decision to make the two entries on the Register, although, as the AAT noted (at (47]), there was a slight difference between the ultimate entries and those directed to be placed on the Register. The entries notified to the Athlete differed in that the date of the adverse analytical finding was changed. (The AAT noted that this was also unauthorised.):
Finding re Adverse Analytical Finding
Athlete’s name: | XZTT |
Date of birth: | dd/mm/yyyy |
In-comp / Out of comp: | In-competition |
Athlete’s sport: | Cycling |
Sample number | 1932918 |
Date Athlete Provided Sample: | 23 October 2010 |
Sample when analysed was an adverse analytical | Benzoylecgonine (a metabolite of cocaine, a stimulant) |
Other matters | Note: The [Panel] Register may be amended later to include further relevant information that may become available. |
Finding re Possible Use
Athlete’s name: | XZTT |
Date of birth: | dd/mm/yyyy |
Athlete’s sport: | Cycling |
Date of alleged Use | 23 October 2010 |
Drug or Doping method alleged to have been Used: | Cocaine |
Other matters: | Note: The [Panel] Register may be amended later to include further relevant information that may become available. |
THE ESSENCE OF THE AAT DECISION
31 The AAT helpfully summarised its conclusions at the commencement of its decision (at [59]-[70]) essentially noting that:
The Panel ‘had jurisdiction under the NAD Scheme’.
The Panel and the AAT were not deprived of jurisdiction as a result of the delay suffered by the Athlete. Furthermore, those delays were not significant in the context of the Athlete’s rights under the WADA Code.
Breaches of procedural rules do not always have to be condoned by the Panel. Some procedural rules are fundamental to the WADA Code. However, even gross delay occasioning actual or potential prejudice to an athlete does not fall within that category.
The decisions to make entries in the Register of possible Violations were not open as a matter of law and the decisions were set aside. For a finding to be made and entered into the Register, the Panel’s finding must be one as defined under cl 1.05 of the NAD Scheme. The AAT concluded that for the purposes of the NAD Scheme, a finding means ‘a finding by the Panel that an athlete or support person has committed [a Violation]’.
The Panel’s role is not similar to that of a magistrate in a committal proceeding as the Panel had argued.
A possible finding is not a finding for the purposes of the NAD Scheme. A finding of an adverse analytical finding is not strictly a Violation. The term ‘adverse analytical finding’ is defined in cl 1.05 of the NAD Scheme. It is evidence of a Violation. The relevant Violation is set out in cl 2.01(2)(a) of the NAD Scheme – ‘presence of a prohibited substance or its metabolites or markers in an athlete’s sample’.
The AAT was satisfied to the required degree, i.e., to a ‘comfortable satisfaction’, that a ‘presence’ violation occurred. It exercised the power granted to the Panel under the NAD Scheme to make an appropriate entry on the Register.
The AAT concluded that the evidence before it did not justify the making of the finding in relation to alleged ‘use’ of a prohibited substance. Accordingly that entry was removed from the Register.
The Panel’s recommendation regarding penalty made as a consequence on the findings set aside by the AAT was returned to the Panel.
32 The AAT also found that the entries did not correspond with the Panel’s conclusions due to the difference in wording identified.
33 The AAT continued an interlocutory ruling affording anonymity to the Athlete.
34 The grounds of appeal relied upon are that the AAT erred in finding that the Panel misconceived its responsibilities under the ASADA Act and the NAD Scheme; erred in concluding that a prerequisite for entry on to the Register was a finding by the Panel that the relevant person had actually committed a Violation; erred in concluding that a finding of a possible Violation was not an available finding for the purposes of the NAD Scheme; and erred in concluding that the entries as to possible Violations were not capable of being recorded by the Panel.
35 Essentially, it is argued that the AAT erred in concluding that the Panel was a hearing body of the kind referred to in Art 8 of WADA Code: the whole process of reasoning by the AAT proceeded on the footing of that wrong conclusion.
36 On the subsidiary issue as to the difference between the actual decision and those entered on the Register, the Panel contends that the AAT erred in concluding that the entries on the Register did not correctly record the actual decisions of the Panel but rather should have recorded that the entries sufficiently corresponded with the decisions of the Panel and the textual differences were not matter of substance but simply matters of form.
37 On the appeal, the Athlete says that the definition of ‘finding’ in the NAD Scheme means that the Panel is recording (or not recording) an actual Violation so must, before doing so, ensure compliance with all of the strict testing and notification procedures which have led to that finding. The Athlete argues that the serious non-compliance in this instance precluded a finding being made.
38 The essence of the cross-appeal is that the AAT should not have exercised its discretion to disregard the results management process. The grounds in support of that contention are that the AAT erred in finding that the ‘long’, ‘gross’, ‘unexplained’, ‘significant’, ‘egregious’ and ‘flagrant’, faults, delays and breaches of the UCI did not deprive the Panel of jurisdiction.
39 The Athlete argues that the faults, delays and breaches constituted a breach of the rules of natural justice and that the AAT failed to apply the correct test in relation to a claim of breach of the rules of natural justice being whether or not the delay deprived the Athlete of the possibility of a successful outcome.
40 The Athlete contends that compliance with the results management procedure by the UCI is an essential preliminary or pre-conditional step for the exercise of the power of the ASADA Chief Executive Officer (CEO) and the Panel. More particularly the Athlete contends that a denial of natural justice that occurs in the steps leading up to, and in contemplation of the exercise of a statutory power, taints the review by the CEO and any subsequent decision made by the Panel. Reliance is placed on Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319 (at [76]-[79]). It is argued that the breach is not capable of being remedied at a full hearing before the Court of Arbitration for Sport (CAS). The Athlete stresses that the breaches were not trivial.
41 We accept the submission that the breaches were not trivial and the unexplained delay is a matter of significant concern. Whether there was any denial of natural justice is a different question. It depends on the function that the entry into the Register serves.
HOW THE STATUTORY SCHEME WORKS
42 There is a fundamental divergence of view between the parties as to the nature of the task to be performed by the Panel. The complexity of the statutory scheme which imports concepts agreed internationally under the WADA Code does not assist in simplifying the legislative framework. Nonetheless, a detailed examination of the relevant legislation is central to resolving this dispute.
43 Before doing so, it is necessary to revisit the scope of this appeal.
44 The review by the AAT was of the decision of the Panel to make an entry on the Register. This appeal and the cross-appeal are limited to questions of law arising out of what was properly decided by the AAT in that review. The issue in the AAT was not whether ASADA’s functions were properly carried out. What was before the AAT was a review of two decisions of the Panel regarding entries on the Register in relation to an adverse analytical finding and a finding of possible use. This raised the question of the matters to be taken into account under the NAD Scheme, cl 4.09, set out below (at [70]).
45 The ASADA Act deals with the establishment and functions of ASADA and its CEO: Parts 3 and 3A respectively. Relevantly to this appeal, Part 2 addresses the making, amending and the content of the NAD Scheme. Section 9 provides:
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.
46 Section 13 provides:
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
(c) authorise the CEO to request an athlete to keep the ASADA informed of where the athlete can be found; and
(d) authorise the CEO to request an athlete to provide a sample; and
(e) authorise the CEO to test, or arrange the testing of, samples so provided; 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; and
(h) authorise the [Panel] to make findings relating to such investigations; and
(ha) authorise the [Panel] to make recommendations as to the consequences of such findings; and
(i) require the [Panel] to establish and maintain a register of such findings; and
(j) authorise the CEO to notify athletes, support persons and sporting administration bodies of:
(i) findings on the register mentioned in paragraph (i); and
(ii) the [Panel]’s recommendations as to the consequences of such findings; and
(k) authorise the CEO to present:
(i) findings on the register mentioned in paragraph (i); and
(ii) the [Panel]’s recommendations as to the consequences of such findings;
at hearings of [the CAS] and other sporting tribunals, either:
(iii) at the request of a sporting administration body; or
(iv) on the CEO’s own initiative; and
(l) authorise the [Panel] to make entries on, or remove entries from, the register mentioned in paragraph (i); and
(m) authorise the CEO to publish information on and relating to the register mentioned in paragraph (i) if:
(i) the CEO considers the publication to be in the public interest; or
(ia) the publication is required by the World Anti-Doping Code; or
(ii) the athlete or support person to whom the information relates has consented to the publication;
and the other conditions (if any) specified in the NAD scheme for the purposes of this paragraph are satisfied.
(2) The anti-doping rules may deal with matters arising before or after the commencement of this section.
47 It can be seen that by s 13(1)(k) the NAD Scheme must authorise the CEO to present findings on the Register and the Panel’s recommendations as to the consequences of such findings at hearings of the CAS and other sporting tribunals either at the request of that sporting administration body or on the CEO’s own initiative.
48 Section 15 sets out additional matters that must be in the NAD Scheme.
49 Section 18 of the ASADA Act provides that the NAD Scheme may make provision conferring a power to make an administrative decision on the CEO, the Panel and other bodies specified in the ASADA Regulations.
50 In the Second Reading Speech for the Australian Sports Anti-Doping Authority Amendment Bill 2009, the Minister for Sport, on 16 September 2009, described the establishment of the new ‘independent’ Panel:
whose role will be to make decisions about [Violations] and recommendations about follow-up action and sanctions.
Decisions regarding a [Violation] are inherently sensitive. To avoid any perception of conflict the [Panel] will not include among its membership the ASADA CEO, ASADA staff, or members of the new advisory group…
Such action ensures that the decision regarding a [Violation] is at arms length from Government and separate from the testing, investigative and prosecutorial functions of ASADA.
51 The Minister explained that Panel members would be appointed by the Minister and must have skills or experience of relevance to sport anti-doping in one of the following areas:
sports medicine, clinical pharmacology, sports law, ethics or investigative practices or techniques.
52 Part 5 of the ASADA Act does not greatly expand upon the Panel’s function other than by s 41 providing:
41 [Panel]’s functions
(1) The [Panel] has the following functions:
(a) the functions set out in the NAD scheme;
(b) such other functions as are conferred on the [Panel] by this Act or any other law of the Commonwealth;
(c) to do anything incidental to or conducive to the performance of any of its functions.
53 It follows that the key to determining the Panel’s function in relation to the Register is to ascertain this from the NAD Scheme itself as it stood at the relevant date.
54 Clause 1.01(2) of the NAD Scheme records that the scheme represents one of the measures Australia has adopted to be ‘consistent with the principles of the [WADA Code]’.
55 Clause 2 of the NAD Scheme sets out the Rules relating to anti-doping. The purpose of cl 2 of the NAD Scheme by cl 2.01 is to specify the circumstances and conduct that constitutes breaches of anti-doping rules or Violations.
56 Significantly, cl 2.01 provides:
2.01 Anti-doping rules
(1) The purpose of this Division is to specify the circumstances and conduct that constitute breaches of the anti-doping rules, or anti‑doping rule violations. Entries onto the Register of Findings will proceed based on the assertion that 1 or more of these specific rules has been violated.
(2) Athletes 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. The following anti-doping rule violations constitute breaches of the anti-doping rules:
(a) Presence of a prohibited substance or its metabolites or markers in an athlete’s sample.
(i) It is each athlete’s personal duty to ensure that no prohibited substance enters his or her body. Athletes are responsible for a prohibited substance or its metabolites or markers found to be present in their samples. Accordingly, it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping violation under this paragraph.
(ii) Sufficient proof of an anti-doping rule violation under this paragraph is established by either of the following:
A. presence of a prohibited substance or its metabolites or markers in the athlete’s A sample if the athlete waives analysis of the B sample and the B sample is not analysed;
B. if the athlete’s B sample is analysed and the analysis of the athlete’s B sample confirms the presence of the prohibited substance or its metabolites or markers found in the athlete’s A sample.
(iii) Excepting those substances for which a quantitative threshold is specifically identified in the prohibited list, the presence of any quantity of a prohibited substance or its metabolites or markers in an athlete’s sample will constitute an anti-doping rule violation.
(iv) As an exception to the general rule established by this paragraph, the prohibited list or International Standards may establish special criteria for the evaluation of prohibited substances that can also be produced endogenously.
(b) Use or attempted use by an athlete of a prohibited substance or a prohibited method.
(i) It is each athlete’s personal duty to ensure that no prohibited substance enters his or her body. Accordingly, it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping violation for use of a prohibited substance or a prohibited method.
(ii) The success or failure of the use or attempted use of a prohibited substance or prohibited method is not material. It is sufficient that the prohibited substance or prohibited method was used or attempted to be used for an anti-doping rule violation to be committed.
(c) Refusing or failing without compelling justification to submit to sample collection after notification as authorised in applicable anti-doping rules, or otherwise evading sample collection.
(d) Violation of applicable requirements regarding athlete availability for out-of-competition testing, including failure to file required whereabouts information and missed tests that are declared based on rules that comply with the International Standard for Testing. Any combination of 3 missed tests or filing failures within 18 months as determined by anti-doping organisations with jurisdiction over the athlete will constitute an anti-doping rule violation.
(e) Tampering or attempted tampering with any part of doping control.
(f) Possession of prohibited substances and prohibited methods.
(i) Possession by an athlete in-competition of a prohibited method or a prohibited substance, or possession by an athlete out-of-competition of a prohibited method or any prohibited substance that is prohibited out-of-competition unless the athlete establishes that the possession is authorised by a therapeutic use exemption granted in accordance with the World Anti-Doping Code and the International Standard for Therapeutic Use Exemptions or other acceptable justification.
(ii) Possession by a support person in-competition of a prohibited method or a prohibited substance, or possession by a support person out-of-competition of a prohibited method or a prohibited substance that is prohibited out-of-competition in connection with an athlete, competition or training, unless the support person establishes that the possession is authorised by a therapeutic use exemption granted to an athlete in accordance with the World Anti-Doping Code and the International Standard for Therapeutic Use Exemptions or other acceptable justification.
(g) Trafficking or attempted trafficking in a prohibited substance or prohibited method.
(h) Administration or attempted administration to an athlete in‑competition of a prohibited method or prohibited substance, or administration or attempted administration to an athlete out-of-competition of a prohibited method or a prohibited substance that is prohibited out-of-competition, or assisting, encouraging, aiding, abetting, covering up or other type of complicity involving an anti-doping rule violation or an attempted anti-doping rule violation. (emphasis added)
57 Clause 2.01(1) acknowledges that all the Panel has at the stage when ASADA approaches it is an ‘assertion that one or more of these specific Rules has been violated’ (emphasis added).
58 Given that the location of this sentence appears at the commencement of the Rules relating to Violations, use of ‘assertion’ is significant in construing the legislative intention of the function of the Register.
59 Clause 2.04 deals with sporting administration body rules. ‘Sporting administration body’ is defined as ‘a national sporting organisation for Australia’. It provides that such a body must have in place, maintain and enforce anti-doping policies and practices that comply with the mandatory provisions of the WADA Code and the NAD Scheme and that the body must not adopt its anti-doping policy unless it has been approved by the CEO. There are other obligations upon the sporting administration body including obligations to immediately inform the CEO of any alleged breach of anti-doping policy. It must also, by subcl 2.04(k), allow the CEO to present anti-doping cases at hearings unless the CEO has approved the sporting administration body presenting its own case. By subcl 2.04(l) it is recognised that the CEO has a right to appeal decisions relating to anti-doping cases including cases the CEO has not presented at the hearing.
60 Sub-clause 2.04(m) provides that sporting administration body rules must:
…
(m) accept findings by the [Panel], act on findings by the [Panel], ensure that a notice of an alleged anti-doping rule violation is issued in accordance with a recommendation made by the [Panel], and enforce sanctions imposed by a sporting tribunal; …
61 The Panel contends that the contractual arrangements between the Athlete and Cycling Australia presuppose that neither the Panel nor ASADA is a hearing body itself; it presupposes that the CAS which is the WADA Code mandated tribunal is the hearing body. There is no hearing process other than within the CAS in the case of Olympic sports, such as cycling.
62 It should be re-emphasised that it is significant to the resolution of this dispute to note that the entry onto the Register is to be an ‘assertion’ not a ‘finding’. This must be so for the simple reason that once there has been an entry made on to the Register, an affected person such as an athlete is given the opportunity to challenge that entry or ‘finding’ in the CAS. It is at that point that the athlete has the opportunity to put ASADA to proof and to advance some reason why a Violation finding ought not be made in the CAS.
Part 3 – testing and investigating
63 Part 3 of the NAD Scheme deals extensively with testing and investigative procedures and requires, by cl 3.13, substantial compliance with international standards in relation to requests for and collection of samples.
64 Part 4 of the NAD Scheme deals with results management. By cl 4.01, if the CEO receives notice from an accredited laboratory of an atypical finding or an adverse analytical finding in relation to an A sample provided by an athlete, the CEO must review the documentation relevant to the sample collection session and the laboratory analysis for irregularity or departures from the relevant international standards. If there is irregularity or departure from the relevant international standards, the CEO is to determine whether the irregularity or departure can be considered to undermine the validity of the atypical finding or adverse analytical finding. If so, the CEO must declare the result of the testing void.
65 Clause 4.02 dealing with therapeutic use and cl 4.03, concerning follow-up investigations, are not presently relevant.
66 By cl 4.04 if the CEO receives a notice from an accredited laboratory of an adverse analytical finding in relation to an A sample, does not declare the results of testing void under cl 4.01 and has not determined that there is a therapeutic use exemption, he or she must notify the athlete in writing of several things including:
that the A sample has returned an adverse analytical finding;
the date of the sample collection;
that the B sample will be analysed unless the athlete waives his or her right to have the B sample analysed;
that the CEO may analyse the B sample even if the athlete waives the right to have a B sample analysed;
details of the time, date and place for the B sample analysis;
the right of the athlete or representative to attend;
any other parties who will be notified of the A sample adverse analytical finding; and
that the athlete will be given the opportunity to make a submission in relation to the sample even if the B sample is not analysed.
67 The notice to the athlete in relation to the A sample may include any other relevant details including details of any provisional suspension to be imposed.
68 There are then regulations governing the B sample analysis (cl 4.05) and by cl 4.06, notification to an athlete following the B sample analysis. If it confirms the A sample analysis or if the athlete waives the right for the B sample to be analysed, the CEO must notify the athlete in writing of the adverse analytical finding. The athlete must be notified that:
the result of the B sample analysis confirms the adverse analytical finding;
if that is so, that the athlete may within the response period give the CEO a written submission setting out information or evidence that may affect the ‘validity’ of the result of the testing; or
waive the right to make that submission;
if the athlete does not make a written submission the athlete is taken to have waived his or her right to do so; and
after considering any submissions that may be made the Panel may make an entry on the Register relating to the AAF and details of other parties to be notified of the entry on the Register.
69 The response period is 10 days after receipt of the notice or a shorter or longer period as may be necessary or adjusted by the CEO.
70 The following key provisions (cll 4.06-4.22) as they then stood are then relevant to the role then to be played by the Panel at this juncture:
4.06 Notification after B sample analysis
(1) This clause applies if:
(a) the B sample analysis confirms the A sample analysis; or
(b) the athlete waives the B sample analysis and the CEO decides not to have the B sample analysed.
(2) The [CEO] must notify the athlete in writing of the adverse analytical finding. The notice must include:
(a) that the result of the B sample analysis (if conducted) confirms the adverse analytical finding; and
(b) that the athlete (or a person on the athlete’s behalf) may, within the response period, give [the CEO] a written submission setting out information or evidence that may affect the validity of the results of the testing, or waiving this right to make a submission; and
(c) that if the athlete (or a person on the athlete’s behalf) does not give [the CEO] a written submission or notice within the response period, the athlete is taken to have waived the athlete’s right to make a submission; and
(d) that, after considering any submission made by the athlete (or a person on the athlete’s behalf), [the Panel] may make an entry on the Register relating to the adverse analytical finding; and
(e) details of other parties that will be notified of the entry on the Register; and
(f) that [the CEO] may also publicly disclose details of the entry on the Register.
(3) For this clause, response period means:
(a) within 10 days after receiving the notice; or
(b) if [the CEO] considers that a shorter period is reasonably necessary due to the circumstances (eg a forthcoming international event or national event) - a shorter period notified by [the CEO] in writing to the athlete before the end of the original response period; or
(c) a longer period notified by [the CEO] in writing to the athlete.
(emphasis added)
Division 4.2 Other anti-doping rule violations
4.07 Notification of possible non-presence anti-doping rule violation
(1) This clause applies if:
(a) the CEO receives evidence or information showing a possible non-presence anti-doping rule violation; and
(b) following a review of the evidence or information, the CEO determines there is a possible non-presence anti-doping rule violation that warrants action by the CEO.
(2) The CEO must notify the participant in writing of the possible non-presence anti-doping rule violation.
(3) The notice must include:
(a) details of the possible non-presence anti-doping rule violation; and
(b) a statement that the participant (or a person on the participant’s behalf) may, within the response period, give the CEO a written submission setting out information or evidence relating to the possible non-presence anti-doping rule violation, or waiving this right to make a submission; and
(c) a statement that if the participant (or a person on the participant’s behalf) does not give the CEO a written submission or notice within the response period, the participant is taken to have waived the participant’s right to make a submission; and
(d) a statement that, after considering any submission made by the participant (or a person on the participant’s behalf), the [Panel] may make an entry on the Register relating to the possible non-presence anti-doping rule violation; and
(e) a statement that the [Panel] may make recommendations to relevant sporting organisations about the consequences of the possible non-presence anti-doping rule violation; and
(f) details of other parties that will be notified of the entry on the Register; and
(g) a statement that the [Panel] may also publicly disclose details of the entry on the Register.
(4) In this clause:
response period means:
(a) the period of 10 days after a participant receives a notice; or
(b) if the CEO considers that a shorter period is reasonably necessary due to the circumstances (for example, because of a forthcoming international event or national event)—a shorter period notified by the CEO in writing to the participant before the end of the original response period; or
(c) a longer period notified by the CEO in writing to the participant.
(emphasis added)
Division 4.3 Register of Findings
4.08 Establishment and maintenance of Register of Findings
For paragraph 13(1)(i) of the Act, the [Panel] must establish and maintain a Register of Findings for the purpose of recording findings of [the Panel] relating to adverse analytical findings and possible non-presence [violations].
4.09 Finding—consideration by the [Panel]
(1) This clause applies if:
(a) a participant has received notification under clause 4.06 or 4.07A; and
(b) the response period for the notification has ended.
(2) The [Panel] must, as soon as practicable, consider any submissions made by the participant and decide whether or not to make an entry on the Register.
(3) If the [Panel] decides not to make an entry on the Register, the [Panel] must notify:
(a) the participant; and
(b) any other party that has been notified of the adverse analytical finding or possible non-presence [Violation].
4.10 Entry of finding on Register
As soon as practicable after deciding to make an entry on the Register, the [Panel] must enter the following information on the Register:
(a) the name of the participant;
(b) if the participant is an athlete:
(i) the athlete’s date of birth; and
(ii) the athlete’s sport;
(c) the nature of the finding relating to the adverse analytical finding or possible non-presence [Violation];
(d) the date of the adverse analytical finding or possible non-presence [Violation];
(e) any other details relevant to the adverse analytical finding or possible non-presence [Violation] that the [Panel] considers should be entered on the Register.
(emphasis added)
4.11 Notice of entry on Register
(1) As soon as practicable after making an entry on the Register, [the CEO] must give the participant to whom the finding relates a written notice stating:
(a) details of the finding relating to the adverse analytical finding or possible non-presence [Violation]; and
(b) that an entry has been made on the Register about the finding; and
(c) that the participant has the right to have the [Panel’s] decision to make the entry on the Register reviewed by the Administrative Appeals Tribunal by application made within 28 days of receipt of the notice; and
(d) the persons or organisations to whom [the CEO] must or may give written notification of the entry on the Register.
(2) A notice under this clause may also state:
(a) details of any recommendation that [the Panel] has made, or proposes to make, to relevant sporting organisations about the consequences of the adverse analytical finding or possible non-presence [Violation] subject to the finding; and
(b) any other details relevant to the finding.
4.12 Reviews by Administrative Appeals Tribunal
An athlete or support person to whom a entry on the Register relates may, within 28 days of receipt of the notice mentioned in clause 4.11, apply to the Administrative Appeals Tribunal for review of [the Panel’s] decision make the entry.
4.13 Presentation of cases
(1) For paragraph 13 (1) (k) of the Act, [the CEO] may present at a hearing of the Court of Arbitration for Sport or another sporting tribunal:
(a) a finding that has been entered on the Register; or
(b) a recommendation by [the Panel] in relation to a finding.
(2) With the approval of [the CEO], a sporting administration body may present a finding on the Register to the Court of Arbitration for Sport or another sporting tribunal.
(3) Giving an approval under subclause (2) does not prevent [the CEO] from appearing before, or giving information to, the sporting tribunal.
(emphasis added)
4.14 Removal of names from Register
[The Panel] must remove an entry from the Register as soon as practicable if, after the entry has been made, any of the following happens:
(1) [The Panel] becomes satisfied that at the time to which the entry relates the person was not a participant;
(2) [The Panel] decides, having regard to a decision of a sporting tribunal, that the entry should be removed from the Register;
(3) [The Panel] is satisfied that, at the time to which the entry relates, the person was a minor, and no period of ineligibility has been imposed on the person as a result of the entry or the period of ineligibility imposed on the person as a result of the entry has ended;
(4) the Administrative Appeals Tribunal, on a review under clause 4.12, sets aside the finding on which the entry was based and [the Panel] has decided not to appeal the decision of the Administrative Appeals Tribunal.
(emphasis added)
4.15 Correction or amendment of entry on Register
(1) This clause applies if:
(a) [The Panel] becomes aware that the Register contains an error because of a mistake, an omission, or a false entry in the Register; or
(b) [The Panel] decides, having regard to a decision of a sporting tribunal, that an entry on the Register requires amendment.
(2) [The Panel] must correct the error or amend the entry on the Register as soon as practicable.
(emphasis added)
4.16 Register – notice of removal, correction or amendment
As soon as practicable after [the Panel] corrects, amends or removes information about a participant in the Register, [the CEO] must give a written notice to any person to whom [the CEO] has given notice about the entry stating that the information has been corrected, amended or removed.
Division 4.4 Disclosure of information
4.17 Notice of entries on Register
(1) This clause applies if [the Panel] has entered information about a participant on the Register.
(2) Within a reasonable time after making the entry on the Register, [the CEO] must give written notice about the entry to:
(a) each relevant national sporting organisation for the participant; and
(b) each relevant sporting administration body for the participant; and
(c) the relevant International Sporting Federation for the participant; and
(d) each relevant government sports agency for the participant; and
(e) WADA; and
(f) any relevant national sporting organisation for any other participant whose interests may be affected by the conduct of the participant.
(3) The notice must include details of the entry.
(4) The notice may include details of any recommendation that [the Panel] has made or is intending to make in relation to the entry.
4.18 Information relating to entries on Register
(1) [The CEO] may give information arising out of or connected with the entry of the name of a participant on the Register to 1 or more sporting administration bodies.
(2) The information may be given orally or by written notice.
4.19 Information about potential entries on Register
(1) This clause applies if [the Panel]:
(a) is considering whether to enter information relating to a participant on the Register; and
(b) has not yet entered the information.
(2) [The CEO] may give the information to 1 or more sporting administration bodies.
(3) The information may be given orally or by written notice.
…
4.22 Making information publicly available
(1) For paragraph 13(1)(m) of the Act, [the CEO] is authorised to publish information on and related to the Register only if:
(a) [The CEO]:
(i) considers the publication to be in the public interest; or
(ii) has received the consent to the publication by the athlete or support person to whom the information relates; and
(b) any of the following apply:
(i) a decision has been handed down for a hearing process conducted in accordance with Article 8 of the [WADA Code], in relation to the finding concerning the information, by a sporting tribunal;
(ii) the athlete or support person has waived his or her right to a hearing;
(iii) the athlete or support person has refused to recognise the jurisdiction of a sporting tribunal to conduct a hearing process in relation to the finding concerning the information; or
(iv) no sporting tribunal has jurisdiction to conduct a hearing process in relation to the finding concerning the information; and
(c) if the athlete or support person applied to have the decision to make the entry reviewed by the [AAT]:
(i) for information for which the [AAT] has granted an order under subsection 35(2) of the Administrative Appeals Tribunal Act 1975 — the review process has been finally determined; or
(ii) the [AAT] has not granted an order under subsection 35(2) of the Administrative Appeals Tribunal Act 1975; or
(iii) the athlete or support person has not applied to the [AAT] for a review of the decision within the applicable timeframe.
(2) For subclause (1), [the CEO] may determine:
(a) the way in which the information is to be made publicly available; and
(b) the times at which the information is to be made publicly available.
(emphasis added)
71 Because of the obligation (under cl 1.01(2) of the NAD Scheme) to ensure the NAD Scheme conforms with the WADA Code (and, for example, cl 4.22(1)(b)(i) above), it is necessary to examine the WADA Code to the extent that may be relevant to determination of the Panel’s function.
72 Violations are defined by Art 2 of the WADA Code.
73 Article 2.1 repeats the fundamental principle that it is each athlete’s personal duty to ensure that no prohibited substance enters his or her body. That being so, the WADA Code makes it clear that it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish a Violation.
74 Article 2 continues to set out Violations including presence, use or attempted use by an athlete of a prohibited substance or prohibited method, refusing or failing to submit to sample collection, violation of applicable requirements regarding availability for out of competition testing, tampering or attempting to tamper with samples, possession of prohibited substances and prohibited methods, trafficking and administering doping.
75 Article 3 is entitled ‘Proof of Doping’. Art 3.1 deals with the burden and standard which has been discussed while Art 3.2 concerns methodology. It reads:
3.2 Methods of Establishing Facts and Presumptions
Facts related to [Violations] may be established by any reliable means, including admissions. The following rules of proof shall be applicable in doping cases:
3.2.1 WADA-accredited laboratories are presumed to have conducted Sample analysis and custodial procedures in accordance with the International Standard for Laboratories. The Athlete or other Person may rebut this presumption by establishing that a departure from the International Standard for Laboratories occurred which could reasonably have caused the Adverse Analytical Finding.
If the Athlete or other Person rebuts the preceding presumption by showing that a departure from the International Standard for Laboratories occurred which could reasonably have caused the Adverse Analytical Finding, then the Anti-Doping Organization shall have the burden to establish that such departure did not cause the Adverse Analytical Finding.
3.2.2 Departures from any other International Standard or other anti-doping rule or policy which did not cause an Adverse Analytical Finding or other [Violation] shall not invalidate such results. If the Athlete or other Person establishes that a departure from another International Standard or other anti-doping rule or policy which could reasonably have caused the Adverse Analytical Finding or other [Violation] occurred, then the Anti-Doping Organization shall have the burden to establish that such departure did not cause the Adverse Analytical Finding or the factual basis for the [Violation].
3.2.3 The facts established by a decision of a court or professional disciplinary tribunal of competent jurisdiction which is not the subject of a pending appeal shall be irrebuttable evidence against the Athlete or other Person to whom the decision pertained of those facts unless the Athlete or other Person establishes that the decision violated principles of natural justice.
3.1.4 The hearing Panel in a hearing on [a Violation] may draw an inference adverse to the Athlete or other Person who is asserted to have committed [a Violation] based on the Athlete’s or other Person’s refusal, after a request made in a reasonable time in advance of the hearing, to appear at the hearing (either in person or telephonically as directed by the hearing Panel) and to answer questions from the hearing Panel or the Anti-Doping Organization asserting the [Violation].
76 Article 4 deals with the prohibited list published and revised by WADA. It addresses issues such as the criteria for including substances and methods on the prohibited list, therapeutic use exemptions and the need to monitor substances which are not presently on the prohibited list but which WADA wishes to monitor in order to detect patterns of misuse in sport.
77 In relation to testing, Art 5 provides that each national anti-doping organisation (for Australia, ASADA) shall have testing jurisdiction over all athletes who are present in that country or who are nationals, residents, license holders or members of sport organisations of that country. It deals with the standards for testing and obligations on the part of athletes to submit to testing. Article 5.2 of the WADA Code provides that national anti-doping organisations with testing jurisdiction will conduct such testing in conformity with the international standard.
78 Article 6 sets out the principles concerning the analysis of samples including the use of approved laboratories, the purpose of the collection and analysis of the samples, the research on them, the standards for analysis and reporting and methods of retesting.
79 Article 7 sets out procedures governing results management including the initial review regarding adverse analytical findings, notification after that initial review and, in particular, the obligation to promptly notify the athlete in the manner set out in the rules of:
the adverse analytical finding;
the anti-doping rule violated;
the athlete’s right to promptly request analysis of the B sample or failing such request that it be deemed waived;
the scheduled date, time and place for the B sample analysis if requested;
the opportunity for the athlete or his or her representative to attend the B sample opening and analysis within the time periods specified in the international standard for laboratories if requested; and
the athlete’s right to request copies of the documentation. The method of review of atypical findings is set out in Art 7.3.
80 Article 8 of the WADA Code entitled ‘Right to a Fair Hearing’ makes it clear that the hearing process is for any person ‘who is asserted to have committed [a Violation]’ (emphasis added). It goes on to say that such hearing process shall ‘address whether [a Violation] was committed and, if so, the appropriate consequences’ (emphasis added).
81 This again makes it clear that up to the point of a conclusion reached by the tribunal which is conducting a hearing process, there is merely an assertion and not a finding in the sense of a conclusion.
82 That is supported by the following requirements which also appear in Art 8.1 of the WADA Code as to the nature of the hearing process and the principles it must follow. None of these requirements are reflected in any obligation of the Panel in relation to making an entry on the Register under the NAD Scheme:
• a timely hearing;
• a fair and impartial hearing panel;
• the right to be represented by counsel at the Person’s own expense;
• the right to be informed in a fair and timely manner of the asserted [Violation];
• the right to respond to the asserted [Violation] and resulting consequences;
• the right of each party to present evidence, including the right to call and question witnesses (subject to the hearing panel’s discretion to accept testimony by telephone or written submissions);
• the Person’s right to an interpreter at the hearing, with the hearing panel to determine the identity, and responsibility for the cost, of the interpreter; and
• a timely, written, reason decision, specifically including an explanation of the reason(s) for any period of Ineligibility.
(emphasis added)
83 Article 10 deals with the sanctions on individuals. It is has no relevance to the issue presently under appeal. (It might be noted in passing however that it is by far the longest of the articles in the WADA Code.) The remaining articles of the WADA Code are also of very limited relevance to this appeal.
84 When all these matters are considered, it is plain that the hearing process where grievances as to the failure to conform with the time requirements would be aired is at the specific hearing to which Art 8 of the WADA Code applies. The function of the Panel was not in any sense a hearing. There is no obligation on the part of the Panel to reach a concluded finding, indeed, it has no power to do so. It is to satisfy itself as to the immediate statutory prerequisites referred to in cl 4.9 of the NAD Scheme before exercising its function.
85 There is one complication to this understanding of the Scheme. It is fundamental to the AAT’s conclusion and the Athlete’s argument.
86 There is a difficulty with the definition of ‘finding’. Clause 1.05 of the NAD Scheme defines finding to mean ‘a finding by the [Panel] that an athlete or support person has committed a [Violation]’ (emphasis added).
87 Further, as noted, subcl 2.04(m) of the NAD Scheme provides in relation to the rules of National Federations that National Federations must:
accept findings by the Panel, act on findings by the Panel, ensure that a notice of an alleged [Violation] is issued in accordance with a recommendation made by the [Panel], and enforce sanctions imposed by a sporting tribunal;
(emphasis added)
88 As the Athlete argues, if this definition applies to the Panel’s entry onto the Register, then his rights are affected in a much more material way than if the entry on the Register is merely a ‘gateway’ to the hearing in the CAS as the Panel contends. The Panel says that the definition of finding as embraced by subcl 2.04(m) is only one small part of the whole scheme. While the use of ‘findings’ in it is unfortunate, taken as a whole, the Panel argues subcl 2.04(m) is to be read in the wider context not just on its literal terms especially because subcl 2.04(m) does not empower the Panel to do anything but simply tells the sporting body what it should do. ‘Findings’ when it appears at subcl 2.04(m) appears to be directed to requiring the National Federation, Cycling Australia in this instance, to take action as a result of the preceding steps by the Panel. However more accurately, the preceding steps are not in fact findings as subcl 2.04(m) would suggest but recordings of an ‘assertion’ (see cl 2.01(1)) in a Register.
89 In Transport Accident Commission v Treloar [1992] 1 VR 447 in a joint judgment of McGarvie and Gobbo JJ (at 449-450) their Honours said:
The deputy president took the view, as he had earlier in Treloar's Case, that a person in charge of a motor car was, under the definition of transport accident, driving the car. He treated the bus driver as being, at the relevant time, in charge of the bus and therefore driving it. He therefore found that the deceased's injuries arose at a time when the driver was driving the bus. The learned deputy president concluded: “Unless the bus had been on an authorised journey in the charge of the driver (i.e. he had been driving it), it would not have been involved in the exercise of picking up, transporting and disembarking passengers. There was a non coincidental nexus between the driving of the bus (an aspect of which was the disembarking of the passengers) and the injuries sustained by the applicant in that those injuries would not have been sustained had it not been for the fact that the bus had been brought to a halt in an inappropriate place in the course of its being driven for the purpose of disembarking passengers.
“Injuries sustained by a passenger who falls whilst alighting from a bus in the course of its ordinary operations and in the absence of any intervening casual concomitant circumstances if they are not injuries directly caused by are certainly injuries directly arising out of the driving of the bus.
“I find that the driver of the bus from which the applicant's late husband was alighting, was driving the bus at the time the accident occurred and that the injuries sustained directly arose out of the driving of the bus.”
To reach his conclusion that the driver by being in charge of the bus was driving it, the deputy president relied on s3(1) of the Act which provides that:
“In this Act... ‘Driver’ in relation to a motor car, includes a person who is in charge of the motor car.”
Although the familiar words “unless the contrary intention appears” do not appear in s3(1), some such words are to be implied: Knightsbridge Estates Trust Ltd v Byrne [1940] AC 613, at 621 and Hall v Jones (1942) 42 SR (NSW) 203, at 207-8.
In our opinion, when Parliament made its amendments in 1988 and substituted for the concept of use the more limited and concise concept of driving, it intended to use the word “driving” in its ordinary sense. In its ordinary sense driving does not include being in charge of a motor car although it may have that meaning in a particular context or through a definition. The cases decided under this Act on what amounted to the use of a motor car show that concept to have a wide ranging operation going far beyond the concept of driving. We consider that, by these amendments, Parliament was seeking to limit a traffic accident to an incident with the necessary connection with a particular activity. That activity is narrower than, and more concise and easily recognisable than, the use of a motor car. To treat a person in charge of a motor car as driving it would be inconsistent with that intention of Parliament. It would widen the activity of driving beyond its normal meaning. It would introduce a rather vague basis for compensation if an incident which was directly caused by or which directly arose out of a person being in charge of a motor car amounted to a transport accident.
We consider that in s4(1)(c)(ii) of the Transport Accident (Amendment) Act 1988 the word “driving” is used in its ordinary sense.
(emphasis added)
90 The conclusion reached by the Court of Appeal in Treloar and the cases there followed has support in an earlier Australian decision, Re Fourth South Melbourne Building Society (1883) 9 VLR (Eq) 54 and subsequently in Buresti v Beveridge (1998) 88 FCR 399 per Hill J (at 401).
91 Indeed, Interpretation Acts expressly provide, as noted in Buresti by Hill J (at 401), that definitions of defined expressions apply ‘unless the contrary intention appears’. Another expression used in statutes in relation to definitions which is substantially to the same effect is ‘except where otherwise clearly intended’. As noted by Hill J (at 401):
The researches of counsel have been unable to find any case which suggested any particular difference in the formulation of words used in definition sections to signify that they are to apply subject to a contrary intention. However it is clear enough that the words “otherwise clearly intended” require that the parliamentary intention to exclude the definition imported into the legislation by the definition section be such as to show a clear intention. That intention, if not expressed, would need to be manifest by implication. In saying this, I do not suggest that a different result would follow from the formulation of contrary intention as it appears in other contexts. It may be mentioned that even if the words “unless the contrary intention appears” or similar qualification are omitted, they will be implied: Re Fourth South Melbourne Building Society (1883) 9 VLR (Eq) 54. Professor Pearce and Mr Geddes in their work Statutory Interpretation in Australia (4th ed, 1996), p 149 indicate that courts have been quite ready to find a “contrary intention”.
92 It may be accepted that the onus of showing that the contrary intention appears is on the party asserting it: Madgwick J in Graovac v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 709 (at 714) and Genders v Ajax Insurance Co Ltd (1950) 81 CLR 470 (at 483). However, as noted in Pearce DC and Geddes RS, Statutory Interpretation in Australia (6th ed, LexisNexis Butterworths, 2006 at [6.62]), ‘apparent bad legislative drafting can hardly provide a basis for finding [a contrary intention]’, citing Simpson v Nominal Defendant (1976) 13 ALR 218 per Foster J (at 224).
93 As noted by Mahoney JA in Deputy Commissioner of Taxation (NSW) v Mutton (1988) 79 ALR 509 (at 512):
The definition applies “unless the contrary intention appears”. In my opinion, the Act in general and ss 207 and 209 in particular disclose such a contrary intention.
There is, of course, no simple formula for determining what is a “contrary intention” for this purpose. Such an intention may be displayed where the definition provides that one thing shall be done and the Act or section in question provides that another shall be done: see, eg, Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372 at 385; R v Brewer (1942) 66 CLR 535 at 550. But it is not limited to such a case. A definition section and its application must be considered in the context of the Act as a whole: see Lennon v Gibson & Howes Ltd (1919) 26 CLR 285 at 289-290; Stevens v Colonial Sugar Refining Co Ltd (1920) 28 CLR 330 at 340(the “commanding effect to the general scheme of the Act”); Blue Metal Industries Ltd v Dilley [1970] AC 827 at 846. A contrary intention may be inferred from a particular provision if, were the definition to be applied, the provisions of or the procedure established by the section would not appropriately work: see Brown v Brook (1971) 125 CLR 275 at 276, 292; where, if the definition applied, it would require a lender to take specified steps in respect of his “business of money-lending” where he had no such business. It is, I think, not necessary that what is laid down by the section in question be impossible of operation; it is sufficient if the result of the application of the definition to a section results in the operation of the section in a way which clearly the legislature did not intend. Thus, in Dealex Properties Ltd v Brooks [1966] 1 QB 542 at 551 , Harman LJ referred to the “fearful confusion” that would follow the application of the statutory definition.
In the end, what the court does when it decides whether there is a “contrary intention” is to decide whether it was the intention of the legislature that the statutory provision as to interpretation or definition should apply to the particular section: see Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635. The legislative intention may, perhaps, be more easily seen where the function of the interpretation section is, by providing a simple verbal formula, to avoid the repetition of a “multiplicity of verbiage”: or where the statutory definition adds to or subtracts from what, apart from the definition, would be the meaning of the particular word in the statutory command: see, eg, R v Brewer, YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395. In the present case, the definition of “tax”, if given the effect suggested for the taxpayer, goes further and qualifies the general operation which otherwise would, I think, be given to s 209.
(emphasis added)
94 The duty of the Panel is to consider any submissions made by an athlete and to decide whether or not an entry will be made on the Register: cl 4.09(2) of the NAD Scheme. None of these steps involve imposing any sanction upon an affected athlete. Rather, if this is to be achieved, it is to be achieved as a result of the contract between the athlete and the sport concerned by a hearing in the CAS.
95 The relevant and only precondition before the Panel could make a decision about an entry onto the Register was whether the Athlete had received notification under the NAD Scheme clauses, either cl 4.06 and/or cl 4.07 and whether the response period for any notification had expired. There is no question in this case that the Athlete received the requisite notifications, made submissions and the response period had expired.
96 As a consequence, the Panel was empowered to decide whether or not to make an entry. The matter before the AAT was not whether the delayed notifications were valid. It is not the conduct of the CEO under judicial review in this Court.
97 We accept the Panel’s submission that if the B sample analysis did not confirm the A sample analysis (for example, because the CEO had misread the analytical report), then the Panel would err if it decided to make an entry on the Register in relation to an adverse analytical finding – not because the notification by the CEO was invalid – but because there was not an adverse analytical finding. That would be reviewable in the AAT, not because of the validity of the notification but on the question of whether there had been, in fact on the merits, an adverse analytical finding. The Panel’s function is not to review the validity of the notification but to determine whether or not on the material before it there was a possible Violation as asserted to it. As the Panel points out, if the material was tenuous, such as hearsay gossip, the Panel would presumably not make an entry. If it did, that would be reviewable in the AAT. It would be reviewable on the merits due to the underlying facts.
98 Despite the unfortunate definition of ‘finding’, the Panel conducts no final determination process and no ‘hearing’. Its administrative process to record an entry onto the Register is quite separate from the contractual steps that lead to a hearing in the CAS. The Panel is not involved in that hearing. It is the result of that hearing alone (unless an athlete accepts the sanction) which considers the case against and for an athlete.
99 The Panel contends, and we accept, that, with respect, the error in the approach taken by the AAT is that it treated the Panel as if it was to make actual findings of violations and that it records such actual breaches on a Register. If this were so and the Panel were recording established, not asserted breaches, it would achieve a bypassing of all the appropriate contractual steps mandated by the WADA Code and a bypassing of any meaningful right by an athlete to be heard in relation to a possible sanction. It would involve the Panel usurping the proper function of the CAS. The Panel would be complicit in violating athletes’ rights to procedural fairness. It would produce results inconsistent with ‘the principles of the [WADA Code]’. Given the detailed provisions in the WADA Code concerning the right to a hearing dealing with the burden of proof and standard of proof, this internal process by the Panel would be completely at odds with the provisions under the WADA Code if, at this point, the entry was to be the hearing to which the WADA Code referred. If the Panel were recording a violation at this point, it would be denying the athlete all the processes set out in the WADA Code for a hearing.
100 Further, it would be remarkable if the Register was to record an actual ‘finding’ before there had been an opportunity to address on the question of validity. When the response period of 10 days has expired, the Panel must, as soon as practicable, consider the submission and decide to make the entry. This is a purely internal process. There is no hearing, calling witnesses, cross-examination or suchlike.
101 Further, cl 4.22 of the NAD Scheme also expressly presupposes that the Panel is not the body making the actual finding but rather the hearing body established under Art 8 of the WADA Code.
102 There is no doubt, therefore, that the contrary intention to the definition appears in the statutory scheme.
THE ATHLETE’S CROSS-APPEAL
103 Our conclusion also applies to the contention for the Athlete that the procedural breaches are breaches of the right to natural justice. A denial of natural justice that occurs in the steps leading up to and in contemplation of the exercise of a statutory power taints the exercise of the power: Plaintiff M61/2010E v The Commonwealth of Australia; (2010) 243 CLR 319 (at 353). At present, however, the state of notification on the Register is only of an ‘assertion’ of a possible Violation.
104 Once it is accepted that it is an assertion that is recorded in the Register there seems no reason why the reference to a possible finding should not be made. It also follows that the conclusion by the AAT that the Panel could only record a finding or not record a finding (as distinct from a possible finding) is not sustained by this approach to the statutory scheme.
105 We also accept the submissions of the Panel on this point. The Athlete did not direct any significant argument to this issue which was very secondary.
106 The AAT found that the entries that were actually made on the Register did not record correctly the actual decisions of the Panel. While such differences may have been inconsequential, the AAT concluded that there is no authority under the NAD Scheme to make an entry on the Register which is different from that approved by the Panel.
107 In this regard, cl 4.08 provides that the Panel must establish and maintain the Register for the purpose of recording its findings. Upon deciding to make an entry, cl 4.10 provides for certain information which must be entered on the Register, namely, the name of the athlete, the athlete’s date of birth and sport, the nature, date and other details relevant to the adverse analytical finding or other possible Violation. There is no requirement for exact correspondence between the entry in the Register and the text of the Panel’s decision, although that would obviously be desirable.
108 In this instance, there is a variation as between the Panel’s report (listing the date of possible Violation as 30 April 2011) and the entry (to the extent that it lists the date of the adverse analytical finding as the date the athlete provided the sample, namely, 23 October 2010). The Panel’s report does not make it apparent to which event the date of 30 April 2011 corresponds. There is no doubt, however, that the entry regarding the adverse analytical finding records the date of the doping control test (23 October 2010), as indicated in the Panel’s report.
109 It follows that the entry correctly records the decision of the Panel, albeit that there appears to be an unexplained error or slip on page nine of the report (where the Panel has noted its decision), which has been corrected in the Register. A variation as between the text of the decision recorded in the Panel’s report, and the entry recorded in the Register, is not such as to invalidate the Panel’s decision, or to deprive the Panel of the power to make the entry that it did, in accordance with cl 4.10 of the NAD Scheme.
110 On 14 March 2013, an interlocutory order was made that until a further order, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), the name of the Athlete not be published and any material identifying him be restricted to the parties of this proceeding and their legal representatives.
111 No real opposition has been raised to continuing the non-publication order until judgment. The Athlete has requested to be heard on the non-publication order and costs on delivery of the judgment. That will be permitted.
112 It follows that the appeal must be allowed and the cross-appeal dismissed. The following orders are made:
1. The appeal is allowed.
2. The decision in XZTT v Anti-Doping Rule Violation Panel [2012] AATA 728 is set aside.
3. The Register of Findings be amended (if necessary) to reflect these reasons for judgment.
4. The cross-appeal is dismissed.
5. Written submissions on costs and continuation of the non-publication order be filed and served by the respondent/cross-claimant within 14 days.
6. Thereafter written submissions in response be filed and served by the applicant/cross-respondent within 14 days.
7. Determination of those remaining issues be resolved on the papers, unless any party requests an oral hearing.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Cowdroy and McKerracher. |
Associate:
