FEDERAL COURT OF AUSTRALIA

Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7

summary

In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website. This summary is also available there.

By its judgment today, a Full Court of the Federal Court dismisses the appeal brought by Mr James Hird. The appeal is from a judgment of a judge of the Court, who dismissed applications for judicial review by Mr Hird and Essendon in respect of a decision by the Chief Executive Officer (CEO) of the Australian Sports Anti-Doping Authority (ASADA) to issue notices under cl 4.07A of the National Anti-Doping Scheme (NAD Scheme) to 34 current and former players for the Essendon Football Club (Essendon). The notices were issued by the CEO as part of an ongoing investigation by ASADA, in cooperation with the Australian Football League (AFL), into a supplements program implemented by Essendon in 2011 and 2012. Under cl 4.07A, the notices were required to inform each of the 34 Players of a “possible non-presence anti-doping rule violation”.

Mr Hird challenged the primary decision on a number of grounds, including that the “joint” or cooperative investigation conducted by ASADA with the AFL was not authorised by the Australian Sports Anti-Doping Authority Act 2006 (Cth) (ASADA Act). Other grounds included that the CEO of ASADA acted unlawfully in:

    conducting the investigation for improper purposes, including to take advantage of the AFL’s compulsory contractual powers;

    disclosing certain personal (NAD Scheme personal information) to the AFL during the interviews of Essendon players and personnel; and

    facilitating the abrogation of the interviewees’ common law rights against self-incrimination and exposure to civil penalties.

Mr Hird also contended that the notices issued to the 34 Players were invalid as the evidence or information from the investigation on which the notices were based was unlawfully obtained.

Mr Hird did not contest the findings of fact made by the primary judge, although he disputed the primary judge’s characterisation of those findings. The primary judge found that the AFL and ASADA each conducted separate investigations in which they cooperated closely with one another and subsequently made separate decisions within their own areas of responsibility. We reject Mr Hird’s contention that this finding involved any element of mischaracterisation.

The Full Court rejects Mr Hird’s challenge essentially because it holds that the investigation conducted by ASADA, in cooperation with the AFL, was authorised by the ASADA Act, the Australian Sports Anti-Doping Authority Regulations 2006 (Cth) and the NAD Scheme. This legislative scheme envisaged that there would be close cooperation between ASADA and sporting administration bodies, such as the AFL, in anti-doping investigations. The legislative scheme enabled ASADA to benefit lawfully from the AFL’s use of its compulsory contractual powers, including by requiring Essendon players and personnel to attend interviews at which both AFL and ASADA representatives were present and to answer questions.

The primary judge found that ASADA conducted its investigation for the lawful purpose of investigating the involvement of Essendon players and personnel in possible violations of anti-doping rules. Since the Full Court holds that the manner in which ASADA conducted the investigatory interviews was within the contemplation of the legislative scheme, it rejects Mr Hird’s submission as to any improper purpose. It cannot be an improper purpose for the CEO of ASADA to intend to conduct an investigation by facilitating the acquisition of information in a lawful way.

The Full Court affirms that there was no unlawful disclosure of NAD Scheme personal information by ASADA to the AFL in the interviews of Mr Hird and the 34 Players because each provided information at his interview directly and simultaneously to the AFL and ASADA, the representatives of both being present when the information was given. The Full Court also affirms that the CEO of ASADA did not facilitate the abrogation of the interviewees’ common law rights to the privileges against self-incrimination or exposure to penalty.

There was no practical unfairness to the appellant or the 34 Players in the way the interviews were conducted and they were not misled in the interview process. The Full Court rejects Mr Hird’s submissions about lack of “free consent” and that there was no waiver of privilege. The primary judge found, and it was not disputed, that, upon becoming a player or official, Mr Hird and the 34 Players 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. Mr Hird and the 34 Players were all legally represented at their interviews. 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 the compulsory powers conferred by its Player Rules and its Anti-Doping Code when it required answers to the interview questions. The primary judge found, and Mr Hird did not dispute, that neither he nor any of the 34 Players objected to the presence of either the AFL or ASADA at their interviews. 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.

At trial, Essendon and Mr Hird accepted that, under the contractual arrangements between the AFL on the one hand and Essendon, its players and personnel on the other, the AFL could lawfully compel Essendon players and personnel to attend the interviews and answer questions. On appeal before the Full Court, Mr Hird argued that the primary judge was mistaken about the existence and use of the AFL’s compulsory contractual powers. We decline to entertain this submission on appeal. Generally speaking, a party to an appeal is bound by the way that party conducted the case at trial; and a point cannot be raised for the first time on appeal when it could possibly have been met (as here) by calling evidence at trial.

Since Mr Hird failed to establish that the information on which the CEO of ASADA based the decision to issue notices under cl 4.07A of the NAD Scheme was unlawfully obtained, Mr Hird’s challenge to the notices fails and the appeal is dismissed.

JUSTICES KENNY, BESANKO AND WHITE

30 JANUARY 2015

MELBOURNE