EFC/HIRD v CEO of ASADA

REDACTED CLOSING SUBMISSIONS

1 This case concerns the legality of an investigation into possible violations of

the anti-doping rules. EFC's case is that, from its inception, the investigation

was invalid and unlawful, both because it was beyond power and because it

was mounted for improper purposes.

2 As pleaded, the Respondent's defence that there was no joint investigation,

but rather separate and parallel investigations by ASADA and the AFL, is

spurious. The lead ASADA investigator, Mr Nolan, summed up the course of

events from February to August 2013 in his email of 30 July 2013, extracted

at paragraph 95 of the EFC's opening submissions. The evidence shows

that, in fact, there was no separate AFL investigation of any kind.

3 As opened, 1 the Respondent's case is that ASADA was permitted to, and did:

(a) conduct a joint investigation which extended not only to doping

offences, but to potential disciplinary charges the AFL might lay; and

(b) prepare, and provide to the AFL, an interim report which included

(indeed focussed on) matters going to disciplinary charges the AFL

might lay.

4 These submissions are structured to focus on the issues and evidence as

they stand at the conclusion of the evidence. They are additional to the

Applicants' written opening submissions, which we continue to rely upon.

5 The Respondent's case does not match either its evidence or the evidence as

a whole.

(a) First, the evidence shows that ASADA's CEO never made a decision,

let alone a considered decision, that the establishment of a joint

investigation, with AFL representatives present at interviews and

receiving a continual flow of information from the investigation, met

the requirements of the ASADA Act. There is no evidence that a

Cf the case pleaded, which denied a joint investigation.

2

considered decision to establish a joint investigation, and to conduct

the investigation on the basis that the AFL obtained immediate access

to almost all investigative information for its own purposes, was made

by anyone. It just developed in the way that the AFL suggested, as

the quid pro quo for ASADA being able to use the AFL's compulsory

powers.

(b) Secondly, Ms Andruska's evidence was that ASADA had committed

itself to providing an interim investigation report to the AFL before

1 August 2013; she knew that the AFL planned to use the report to lay

disciplinary charges against EEC and support staff; she knew that the

use of the report for those purposes would not satisfy the

requirements of the Act; but nevertheless she did not take effective

steps to prevent that occurring. In fact, she delayed objecting to the

AFL's use of the report for that purpose until 15 August and took no

effective steps thereafter to intercept the disciplinary proceedings.

6 In support of its case, the Respondent advances an incorrect construction of

the Act and the Regulations, which seeks to bring AFL disciplinary charges

within ASADA's remit. For the reasons set out below, the Respondent's

construction of the Act and the Regulations is wrong, and his contentions

regarding the scope of ASADA's jurisdiction are unfounded.

7 Before moving on to substantive matters, the Applicants observe that, in her

evidence, ASADA's key witness, Ms Andruska was non-responsive 2 , evasive 3 and partisan 4 . She frequently avoided answering the question asked, instead

giving speeches5 to persuade the court of the validity of ASADA's course of

action under her stewardship. Ms Andruska sought to disassociate herself

from decisions that were not formally put to her in writing. 6 The Court will also

2 For example, when asked about who made the decision to conduct joint interviews, Ms Andruska sought to avoid answering the question and proceeded to give a speech on ASADA's general relationship with the AFL: TS185.12-TS187.8. See also Ms Andruska's non-responsive answers at TS160.43-TS161.6.

3 For example, in answering questions regarding her knowledge of the AFL's objective to use the information to pursue disciplinary charges: TS170.42-TS171.27. See also the passage in relation to Mr Owens on 24 May 2013: TS190.1-22

4 In particular, note Ms Andruska's characterisation of her 2 August letter at TS213-214 5 For example, at TS179, eg TS187 6 In relation to whether she approved the conduct of joint interviews, Ms Andruska answered that

"1 was not asked to approve it in that way" and "I was not given a document to sign to say that I

3

have noted Ms Andruska's long pauses (which are not recorded on the

transcript) before answering questions, the answer to which would not assist

ASADA's case.'

I. The agreement to establish and conduct a joint investigation

8 By 1 February 2013 ASADA and the AFL had devised and agreed to conduct

a joint investigation. This occurred without any invitation or involvement of

EFC or Hird. In particular:

(a) At a meeting on 31 January 2013, ASADA and the AFL discussed an

investigation into AFL clubs (ASADA having decided for itself to

conduct an investigation into AFL clubs, including EFC).

(I)

ASADA prepared a briefing note for the meeting.. This

was circulated internally, before the meeting, on 30

January 2013. 8

(ii) Andruska of ASADA took notes of the meeting. 9 Paul

Jetovic from the ACC attended. Andruska's notes record,

among other things, that:

(A) GilIon McLachlan of the AFL asked is it Essendon?',

to which Jetovic responded 'say no more'. 1°

(B) ASADA and the AFL were there 'to collaborate'.

(C) Demetriou expressed the AFL's 'commitment' to

`cooperate and share'."

approved ...": TS175.17-23. See also TS186.30-33 for Ms Andruska's emphasis on what was "written down".

7 For example, when it was put to her that "at the meeting of 31 January ... ASADA had already determined that it was going to investigate the AFL as at 31 January", Ms Andruska paused for a sustained period before ultimately asking for the question to be repeated. Ultimately, Ms Andruska conceded that ASADA had already determined that it would be undertaking an investigation as at that date: TS151.14-22. The Court may also have noted Ms Andruska's pauses in answering questions regarding objections to the legality of the joint investigation in the passage of cross-examination at TS206. a ACB.C.08.2856 (internal ASADA email). The attached document is ASA.0002.0082 . ACB.C.04.0227 (a more fulsome version than Annexure AA-2).

10 T 147, In 30. 11 T145, In 5.

4

(D) There was discussion about a strategy that the AFL

proposed the investigator use, including use of the

AFL code of Conduct and the WADA Code. 12

(iii) Andruska's evidence was that 'elements' of the

investigation that were put forward by the AFL are

recorded in her note and that these were put forward to

her for consideration in her role as CEO of ASADA. 13

(iv) Andruska conceded that, as at 31 January 2013, ASADA

had determined that it was going to investigate the EFC. 14

(v) Further, she agreed that a highly confidential briefing

(which mentions EFC) was probably provided to the AFL

in late January or early February. 15

(vi) There is no evidence that the AFL was an 'entrusted

person' for the purposes of the Act at that point in time, or

afterwards, throughout the period over which the

investigation took place.

(vii) Andruska could not recall whether ASADA obtained legal

advice regarding the disclosure of the matters contained

in the briefing note to the AFL. 16

On 1 February 2013, ASADA and the AFL agreed that, as ASADA lacked

compulsive powers, it would make use of the AFL's compulsory powers by

establishing and conducting a joint investigation. Ms Andruska, ASADA's

CEO, recorded the following in her notes of 1 February 2013: 17 when

Clothier of the AFL said that the AFL had compulsory powers that ASADA

did not possess, her response was that "we can use AFL's powers until we

get our own powers".

12 T148, In 5. 13 T 148, In 30 to T149, In 5. 14 T 151, In 20 and In 40. 15 T 152, In 35.

T 153, In 35; T 154, In 5. 17 ACB.C.04.0230.

5

(i) Andruska understood the purpose of the teleconference

was to discuss how an investigation into the EFC might

be conducted. 18

(ii) She gave evidence that, at that point, ASADA had

determined that it would proceed with an investigation

into EFC. 18

(iii) Andruska understood that the proposal was for ASADA to

use the AFL's contractual powers to gather investigative

information until ASADA got its own. She conceded that

ASADA did not have its own powers of compulsion at the

time and needed to rely upon the AFL's."

(iv) This 'information acquisition regime' 21 is contrary to the

case put by ASADA in its opening: namely that the flow

of information between ASADA and the AFL was a

consequence of the AFL's statutory obligation to

cooperate.

(v) Andruske understood, as at 1 February 2013, that the

AFL was proposing to use a case management database

that would be 'fed constantly' with information which

would be shared with the AFL. 22 This was the quid pro

quo for the use of the AFL's compulsory powers.

(vi) She conceded that ASADA had not placed any limitations

upon the AFL's use of information as at 1 February

2013.23 Andruska thought an existing 'confidentiality

undertaking'that she did not identify any more specifically

was sufficient protection 24 and did not give any

consideration to the propriety, or otherwise, of the flow of

information to the AFL. She said what occurred was in

18 T 155, In 45. 19 T 157, In 40. 20 T 158, In 10 to 30 to T 160, In 39.. 21 To use the words of Mr Howe QC (transcript for 11 August 2014, T 30, In 5). 22 T 156, In 1 to 15. 23 T 156, In 40. 24 T 157, in 15.

6

line with `established practice' from before Ms Andruska's

time, and she never identified it with any precision. 25

(vii) There is no evidence that anyone within ASADA

considered the strict confidentiality requirements of the

Act and the Regulations.

(viii) At that point in time, ASADA had commenced drafting

what became known as the Operation Cobia Investigation

P Ian .26

(b) At about 9.00am on 5 February, Clothier of the AFL told ASADA that

the AFL intended to use information gathered by the joint investigation

to consider bringing charges against EFC, such as "bringing the sport

into disrepute": see Nolan's email to Clothier of 6 February 2013.

(ii) Clothier told the ASADA representatives that the media

were 'onto Essendon'.

(iii) The next day, Nolan emailed Clothier seeking details of

player registration (a source of the AFL's powers over

players). 29

25 T 157, In 24. 26 Walker Affidavit, at paragraph 8 (ACB.A.02.0514). Annexure AW-1 (ACB.A.02.0533).

ACB.C.08.02817.

7

(iii) On 17 April 2013, Clothier emailed Nolan his note of the 5

February 2013 meeting enclosing his file note of 5

February 2013. 32

9 Thus, the agreement between ASADA and the AFL to establish a joint

investigation occurred before:

(a) Robson of EFC telephoned Andruska at about 1.30pm on 5

February 2013;33

(b) EFC's press conference at 3.28pm on 5 February 2013. 34

(i) The joint investigation did not arise from any request from

the EF

(ii) Andruska's evidence was that, by that date, ASADA was

'in agreement with the AFL that [it] would work together

for — on the investigation'. She conceded that there was

an `understanding' that ASADA and the AFL would

undertake an investigation and that the term 'joint

investigation' became 'common language'. 36

(iii) Having given that evidence, Andruska sought to retract

from it. She said she didn't recall precisely when an

agreement was made with the AFL for the conduct of a

joint investigation; she couldn't be 'specific about the date

and actual time' and could 'not comment upon' simple

propositions put to her in cross-examination. 37 In the

end, she agreed that she would not dispute the accuracy

of any statement by the AFL to the effect that there was a

joint investigation established as at 9am on 5 February

32 ACB.C.07.2270. 33 Andruska Affidavit, at paragraphs 13 to 17 (ACB.A.02.0578). Annexure AA-4 (ACB.04.0232).. 34 McDermott Affidavit, Annexure CM-1 (ACB.A.0692). 111.1.1=11111

T 161, In 25 to 45. 37

T163.

2013. 38 Later, she agreed that ASADA's investigation

with the AFL was conducted as a joint investigation from

its outser. 39

(iv) Andruska would not accept that it was disingenuous for

ASADA to suggest, in the Interim Report, 4° that the

agreement to conduct a joint investigation was in

response to a request from Evans (of EFC). 41 But it is

inevitable that statement is wrong, particularly in light of

subsequent evidence that 'ASADA would have

undertaken an investigation irrespective of any

cooperation by the AFL'. 42 The words "in response"

falsely asserted a causal nexus when there was none,

not just a temporal sequence.

10 The joint investigation did not arise from any request from the EFC, contrary

to the picture presented by ASADA in its Interim Report and contrary to the

Respondent's case.

11 ASADA's pleaded defence that there was no joint investigation, but rather

separate and parallel investigations by ASADA and the AFL, is spurious. 43

(a) It was Andruska's understanding by 9 February 2013 that there would

be a joint investigation."

(b) Further, she understood that the AFL was interested in exploring

potential breaches of the Player Rules and what sanctions might be

laid against EFC and players. Andruska's evidence was that such

matters were of 'secondary' importance to her and that she was

mainly concerned about anti-doping rule violations. 45

38 7 163, In 40. 39 T 165, In 35. 40 At ACB.C.05.0802. 41 T 167, in 34 to 41. 42 T 167 1 to 30. 43 Note ASADA departed from its pleaded case at the hearing. 44 T 170, In 9. 45 T 170, In 10 to 47. See also T 170, In 10 to 25 and T 177, In 5 to 15.

9

12 The lead ASADA investigator, Mr Nolan, summed up the course of events from February to August 2013 in his email of 30 July 2013, 46 extracted at paragraph 95 of the EEC's opening submissions. In his words, there was "never ... anything other than a joint investigation" and it involved an "open sharing of information". This email was circulated to Andruska on 20 August 2013.47

IL The conduct of the joint investigation

13 ASADA ran the investigation. The AFL functioned as ASADA's secretariat.

14 The following matters are clear from the evidence:

(a) Andruska did not make any decision to approve the conduct of joint interviews;48 alternatively she could not recall whether she made a decision approving such a practice.49 She considered the participation of an outsider (the AFL) in the interviews to be in accordance with 'previously used practice'. 5°

(i) This evidence should not be accepted. It is contrary to

the scheme of the Act

(ii) There is no evidence that the problem raised by Mullaly in

his email was ever resolved (or indeed considered in any

detail) by ASADA. 52

(b) Andruska left matters such as the decision to conduct joint interviews to her subordinate, Ms Perdikogiannis (still employed by ASADA). 53

(I)

Andruska did not know whether there had in fact been

any decision within ASADA to conduct joint interviews. 54

46 ACB.C.05.1240. 47 ACB.C.04.0555. 48 T 175, In 10. 49 T 176, In 37. 5° T 175, In 40 to 45. 11.1.11111.1.1

T 179, In 25 to 26. 53 T 179, In 5 to 19.

10

(ii) Andruska did not turn her mind to the propriety of such a

course at the time because joint interviews had been

conducted in the past. 55

(iii) Andruska agreed that there is no record of the decision to

conduct joint interviews. 56

(c) The reality was that the problem identified by Mullaly was the

necessary consequence of Ms Andruska's decision that ASADA

would use the AFL's powers of compulsion: the only way in which

ASADA could use the AFL powers to compel attendance before an

ASADA investigator was for an AFL representative to be present at

the ASADA interview.

(d) ASADA decided whom to interview, in what order and when.

(Andruska considered this a matter for ASADA. 57) It did so from very

early on.

(iii) Haddad did not exercise a form of independent

judgement in relation to the interviews. He deferred to

ASADA. In one email (of 18 May 2013), he said that he

54 T 179, In 20 to 23. 55 T 180, In 10 to 21. See also T 186 at lune 22 and following. 56 T 187, In 9. 57 T 180, In 30.

11

would speak to ASADA 'and see if we even need to

pursue this interview'. 60

(e) As and when requested by ASADA, the AFL issued notices exercising

its powers to compel persons to attend for interview. (Andruska

understood this to be the case. 62)

(i) For example, on 10 February 2013, Nolan emailed

Clothier asking him to prepare a 'template letter' notifying

players and officials that they were 'required' to attend an

interview. Nolan told Clothier what the letter should

include and asked for a draft of the letter for review by

ASADA's legal team. 63 The letter he drafted is clear that

ASADA would conduct the interview; the AFL's role was

to co-ordinate the interview and to be present at it.

to, Andruska was not aware cf Nolan's request (as it was a 1/4,

matter of detail)."

(iii) A version of this letter65 was ultimately sent to each

person the AFL directed, under its Rules, to attend an

interview.

(iv) ASADA had input in relation to the letters that were

ultimately sent. For example, Kerrison emailed Haddad

on 5 March 2013 and suggested that he remove some

text and 'include player rule 1.8' so that letter "would]

have the desired effect'. 66

60

ACB.C.06.1722.

T 180, In 40. 63 ACB.C.08.2783. 64 T 179, In 30 to 33. 65 For example ACB.C,07.2288. See also Attachment 5 to ASADA's Notice to Admit dated 25

July 2014, and paragraph 61 of the Notice to Admit and paragraph 61 of EEC's Notice of Dispute dated 8 August 2014.

66 ACB.C.07.2582.

12

(v) Appendix B to the letter67 was drafted by ASADA as a

notice from ASADA requiring the interview to produce

documents to ASADA. 68

(f)

ASADA decided what questions to ask and prepared interview plans.

(i) This is borne out by all the interview plans in evidence. 69

(ii) Walker's evidence is that ASADA prepared these plans

and the AFL did not have any input in relation to them.

He did, however, provide a copy of his plan for one

interview to Haddad. 79

(iii) Andruska's evidence is that she understood this to be the

case/ 1 but she did not see any interview plans in 2013. 72

(iv) Andruska said that she did not approve the provision of

interview plans to the AFL. 73 That was another matter

that she left to others (Perdikogiannis and Simonsson 74 ).

(v) Andruska agreed that the interview plan of 15 February

2013 at ACB.C.08.2690 that was produced by the AFL on

subpoena contained confidential investigative

information. 76

(g)

ASADA sent Appendix B (which invoked the AFL's compulsive

powers) to interviewees before their interviews.

(i)

Notification was given to persons to attend to be

interviewed by ASADA in the form of an 'interview pack' 76

67 ACB.A.02.0805. 68 ACB.C.07.2244 and the attachment at ACB.C.07.2245; see also Kate Corkery's email to

Clothier, cc Nolan dated 12 February 2013 ASA.002.0499 69 For example, see Nolan's email to Haddad, VVhittock and Clothier dated 28 May 2013

(ACB.C.06.1726). 70 Walker Affidavit, at paragraphs 43 to 44 (ACB.A.02.0513).

71 T 180, In 43. 72 T 181,1n 11 to 12. 73 T 181, In 18. 74 T 181, In 21 to 29. 75 T 182, In 40 to T 183, In 5. 76 Walker Affidavit, at paragraphs 18 to 19 (for player interviews) and at [29] (for support staff

interviews) (ACB.A.02.0513). Annexure AW-2 (ACB.A.02.0564).

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for the lASADA] and [AFL] investigation'. 77 The

substance of the information contained in the pack (ie.

that the interviewee was 'obliged to cooperate under the

AFL Player Rules and [that they had] obligations under

the Commonwealth Criminal Code') was conveyed at the

commencement of each interview. 78

(h) ASADA substantively conducted the interviews, with ASADA asking

the vast majority of questions and AFL personnel asking only

occasional questions.

Those questions were usually asked after the completion

of ASADA's questioning. 79

(ii) Andruska was aware (in February 2013) that the

interview would be conducted largely by an ASADA

investigator. 80

ASADA directed and controlled the gathering of other intelligence,

particularly by:

directing Dloitte as to the search terms it shou/d use;

(i) So, on 8 February 2013, Nolan

presented a document which

included key words to assist Deloitte in its examination of

EFC materia1. 81

77

See page 1 of the Annexure; see also EX XC I. 78

Walker Affidavit, at paragraph 21 (ACB.A.02.0513). 79

Walker Affidavit, at paragraph 21 (ACB.A.02.0513). 80

T 180, In 7. 81

See also the Walker Affidavit, at paragraph 39 (ACB.A.02.0513).

14

(iii) Walker's evidence is that he had `direct contact' with the Deloitte team and that ASADA investigators `were able to

contact them to make requests for further searches

without reference to the AFL '. 85

(iv) giving directions as to whose emails, files or telephones should be searched and what analytical tasks- should be undertaken. For example:

That request was made `because

ASADA at that time had no power of its own to obtain

information'. 89

(viii) Other

Walker Affidavit, at pargaphs 40 to 41 (ACB.A.02.0513).

Walker Affidavit, at paragraph 61 (ACB.A.02.0513).

Walker Affidavit, at paragraph 59 (ACB.A.02.0513). See also the email from Nolan to Clothier dated 6 February 2013 ACB.C.08.2815).

raph 42 (ACB.A.02.0513).

15

(k) giving directions to the AFL, which the AFL duly complied with. In

giving directions, ASADA's investigators were cognisant of the

limitations upon ASADA's powers. 93 For example:

(I)

At the request of the ASADA investigators, the AFL used its

compulsive powers to require production of physical evidence,

documents, computers and phones. That 'evidence' was provided to

ASADA. 96 For example:

(ii) On 29 July 2013, Haddad provided Nolan and Walker

with a summary of Deloitte's work in the form of a

document titled 'Data Summary for Report'. That

document refers to the powers that the AFL relied upon in

relation to the work performed by Deloitte. 98

ACB.C.05.1246 and ACB.C.05.1247 (attached document).

99

16

(m) ASADA passed the information it gathered, including interview

transcripts, to the AFL to be stored on the AFL's data base. 99 without

any restrictions as to its use. 1°° For example:

(ii) ASADA recorded each interview it attended and provided

the AFL with transcripts of recordings of interviews that it

had obtained. 103

(iii) Andruska's evidence was that, as at February 2013, she

understood Nolan to be conducting the investigation on

the basis that there was an 'open sharing of information'

with the AFL. 104 However, she did not approve the

provision by ASADA to the AFL of investigative

information (transcripts of interview aside). Again, that

was a matter that she left to others." 5

(iv) As to the transcripts, she became aware that they were

being provided to the AFL but made no decision to

approve this before it commenced.

(n) The information that ASADA provided to the AFL included information

obtained by ASADA which was not otherwise available to the AFL. 106

Walker Affidavit, at paragraph 23 (ACB.A.02.0513). 100 See Andruska's evidence commencing at T 156.

See ASADA's Notice to Admit dated 25 July 2014 (at paragraph 65) and EEC's Notice of Dispute. See also the Walker Affidavit, at paragraph 23.

104 T184, In 15 to 21. 105 T 185, In 24 to 29. 106 Walker Affidavit, at paragraphs 4 to 62 (ACB.A.02.0513).

17

(i)

For example, ASADA provided the AFL with most, if not

all, of the transcripts of 16 interviews that ASADA had

conducted by itself. Further, ASADA provided the AFL

with forensic evidence in the form of data from a mobile

telephone and with what Walker describes as the

'Mexican information'.

15 At paragraph [78] of their opening submissions, the Applicants submitted that,

prior to 8 February 2013, the AFL issued a notice to EFC authorising Deloittes

to obtained information from EEC's servers pursuant to exercise of the AFL's

compulsive powers. ASADA take issue with that statement. In relation to that

matter, the Applicants submit as follows:

(b) Deloittes obtained information over the course of the investigation.

(c) There is no question that much of that information was ohtained by

exercise of the AFL's compulsive powers (eg, the powers were used

to obtain the mobile phone of interviewees 108 ).

(d) The available evidence indicates that the AFL did use its compulsory

powers to make, not only its subsequent collections, but also its initial

collections:

(ii) On 29 July 2013, Haddad of the AFL emailed Nolan,

Walker and Kerrison and attached a document titled

"DataSummary for Report.docx". 109 In the AFL's own

document, sent to ASADA (apparently for inclusion in the

interim report), the AFL referred to rule 1.5A of the Player

Rules (which gives the AFL power to compel production

of documents, records, articles or things and said that

I :

EFC.001.021241; ASA.0006.2292 (email and letter demand for mobile phone). Note also Hird's evidence about being required to produce his mobile phone. ASA.0006.0966 (ACB.C.05.1246).

109

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"The AFL by virtue of the above sections contained within

the AFL Player Rules commissioned Deloitte to attend at

the Essendon Football Club and examine and image all

electronic data stored within the club's computer network,

namely email and other files". 11°

(iii) In his email of 30 July 2013, 111 Mr Nolan noted that the

AFL had "exercised its powers to secure" the following

information:

(A) Six mobile telephones;

(B) Four server based systems;

(C) Backup data from the exchange email system;

(D) Four laptop computer systems;

(E) One external hard disk drive;

(F) A financial information database.

(iv) ASADA's own log contains an entry by Nolan of ASADA

at 8 February at 6.32pm referriny to the various items that

Deloitte had "seized". 112 The language of seizure is

inconsistent with the suggestion of voluntary provision.

(v) on 25 March 2013 Robson emailed Simonsson, cc

Clothier and referred, inter alia, to the "visit by Deloitte

forensic directed by the AFL". 113

16. As the above material shows, the AFL (which was the entity with the

compulsory powers and the entity which commissioned Deloittes to conduct

the initial server imaging) itself considered that the compulsory powers had

been used to conduct the imaging of EFC's computer system. In any event,

there was no question but that the AFL had a contractual power it could

exercise against EFC to seize computer and mobile phone records. Any

resistance would have been futile and would have served only to antagonise

110 ASA.0006.0967 (ACB.05.1247) (emphasis added). 111 ACB.C.05.1240. 112 ASA.0014.0010. (ACB.B.03.0270). 113 ASA.0014.0227/ASA.0002.25261EFC.001.021114.

19

ASADA and the AFL to no end. Accordingly, there is no distinction in this case

between EFC handing over material without a notice of demand from the AFL

(if that is what happened) and doing so pursuant to a specific compulsive

notice.

17 The CEO's continued attempt to characterise information as having been

given to ASADA by the AFL (eg Opening, paragraph 64) is not founded in the

reality of the way in which the joint investigation was conducted.

(e) What the CEO ignores is that the AFL personnel did not conduct

interviews themselves (whether or not in the presence of ASADA) and

then provide that information to ASADA.

(f) Rather, it is common ground 114 that ASADA investigators asked "the

vast majority of the questions" at each interview. The information

obtained from the interviews

was information obtained by

ASADA, using the AFL's compulsive powers. It is not information that

was obtained by the AFL using its own powers, and then provided to

ASADA.

ASADA knew at various times that there were doubts as to the legality

of the joint investigation and the provision of an interim report to the

AFL

11.111As early as 8 February 2013, ASADA knew that there were doubts as to the

legality of the joint investigation.

114 See the Respondent's Notice to Admit, para 73.

20

18 No further evidence explains how this issue was 'rectified' or why it was

concluded that it was not open to the AFL to delegate its information-

gathering powers to ASADA. The joint interview process just went ahead

because it was essential if ASADA was to use the AFL's compulsive powers

as Andruska agreed and determined in the discussion with the AFL on

1 February.

19 Between March and August 2013, the legal representatives for various parties

objected that the joint investigation was unlawful:

(a) See EFC's & Hird's opening submissions at paragraphs 102-110,

171-173 and 179-186.

(b) Mr Chris Pollard, a solicitor acting for several EFC personnel, raised

an issue with the legality of the joint investigation as early as 1 March

2013 in a letter to the AFL. 117

Kerrison's email exchange with

Haddad on 1 March (ACB.C.07.2594) shows that he knew that the

AFL intended to use the interview information to support AFL

disciplinary charges.

ACB.C.07.2589.

21

(d) Appudurai followed the issue up the next day, in an email to Walker

and Kerrison. 12° Appudurai did not doubt ASADA's power to (lawfully)

investigate the matter but queried the 'status' of the AFL and its code.

(e) Walker did not immediately respond to the substance of Appudurai's

email and, on 8 March 2013. 121 Appudurai again raised the issue. He

stated, in an email to Walker, that Walker's response was 'critical to

the resolution of the fundamental issue re the status of the (/oint)

investigation'.

(f) By 13 March 2013, ASADA had not responded to the substantive

issue raised in Appudurai's original email. 122 That led him to write

directly to Andruska on 4 April 2014. 123

(g) Andruska's response did not arrive until 15 April 2013, over a month

after Appudurai's initial email. In this period, ASADA had no qualms

about relying upon the AFL's powers over players and support staff.

ASADA's response came in the form of an unresponsive letter from

Andruska. 124 That letter relied, by express reference, upon previous

AFL advice as to its entitlement to conduct the investigation. 125

(h) In this intervening period, Appudurai told an AFL investigator to `butt

out' of an interview that was then taking place and that `the

investigation was not kosher', and he was only going to deal with

ASADA and not the AFL. 126 The AFL's log records that Appudurai

was 'unrepentant' at the interview and 'directed his conversations to a

closed door meeting with the ASADA investigators' rather than to the

AFL and ASADA jointly. 127

(i) The transcript of Appudurai's objection during the interview was

circulated between the AFL and ASADA together with a draft letter

from the AFL to Appudurai (ASA.0002.5147). It appears that, on

120 ACB.C.07.2489. 121 ACB.C.07.2487. 122 ACB.C.07.2487. 123 ACB.C.07.2331. 124 ACB.C.07.2278. 126 See ACB.C,07.2589 (1 March 2013 letter). See also Exhibit E3 (26 March 2013 letter). 126 ACB.C.03.0217. 127 ACB.C.03.0217.

22

15 March, the AFL wrote to Appudurai threatening that the objection

he raised "may be considered as a obstructing and hindering the

interview to the prejudice of his clients (ACB.C.07.2480).

(j) On 22 March 2013, in a player interview at the AFL Players'

Association, objection was again taken to the legality of the joint

investigation. Nolan responded to the 'objection' by noting it and

referring to a 'similar challenge' that had been resolved by

agreement. 128

(k) Hird's counsel, Tony Nolan QC, raised an issue as to the nature of the

joint investigation at Hird's interview.

(I) As to the work product of the joint investigation, the EFC's then

solicitor, 129 Tony . Hargreaves, wrote to ASADA on 24 June 2013 139

querying the provision of any report to the AFL and, on 31 July 2013,

expressed the view that it could not legally provide the interim report

to the AFL. 131 Legal advice provided to ASADA on or around 5 July

2013 records the fact that the EFC had 'queried ASADA's ability to

provide [the interim] report to the AFL under clause 4.21 of the NAD

scheme... 432

20 In early August 2013, solicitors for the EFC, Hird and players took issue with

the interim report, in particular its scope and the apparent disclosure, by

ASADA, of confidential NAD scheme information to the AFL. For example:

128 ACB.C.07.2465. 129 As to the fact that Hargreaves was then acting for EFC, see the 31 July 2013 letter at

ACB.C.05.1233. 130 ACB,C.06.1536 131 ACB.C.05.1233. 132 ACB.C.06.1485

23

21 On or about 13 August 2013, Demetriou publicly stated that he was

considering releasing the interim report publicly. 137

IV. The Respondent's case

22 The CEO contends that ASADA is authorised to:

(a) conduct joint investigations with sporting administration bodies and to

use their compulsory powers in the course of those investigations;

and

(b) to investigate (whether by itself or jointly with the AFL)

"governance/management practices", not merely as an incident of

investigating potential anti-doping rule violations.

23 The Respondent advances a number of propositions in support of that case —

but each of them is wrong:

(a) The CEO contends that, in order for the Court to find that the

ASADA/AFL joint investigation was ultra vires, the Court would need

to be satisfied that the governing legislation contained an implied

prohibition on the conduct of a joint investigation. That is wrong.

ASADA has only the powers conferred on it; the issue is whether the

legislation impliedly permits a joint investigation. It is ASADA that

contends for an implication to that effect.

(b) The CEO suggests that the various international instruments

executed by Australia either authorise joint investigations or extend

his, and ASADA's, functions and powers so that ASADA can provide

investigative information to a sporting administration body for the

Andruska Affidavit, at paragraph 65 (ACB.A.02.0575). Annexure AA-20 (ACB.A.02.0647).

24

purpose of arming that body with sufficient information to take

disciplinary proceedings against a sporting club or support staff.

There is nothing to support that proposition.

(c) It is one thing for ASADA.to conduct an investigation into anti-doping

violations, which incidentally enquires into governance issues at a

sporting organisation that is the subject of the investigation. It is

another thing altogether to use that investigative information in a

manner which is disconnected from ASADA's own investigation by

supplying that information to a sporting administration body for the

purpose of that body bringing disciplinary proceedings against a club

or support staff on governance grounds (as distinct from grounds that

require the proof of any anti-doping violations).

(d) The CEO and ASADA have only the powers granted to them by the

governing legislation, which legislation sets out the terms and defines

the manner in which the Commonwealth Parliament chose to

implement Australia's international obligations. The CEO's

construction of the governing legislation is wrong in its reliance on the

international instruments.

(e) Whereas natural persons are presumed to be permitted to do

anything which the law does not prohibit, the same is not true of

public bodies; they have only the powers granted to them. This basic

distinction was referred to by Professor Sampford in an article, "Law,

Institutions and the Public/Private Divide": 138

There are different "closure rules" for public and private law. Such closure rules determine what should be done if there is no appropriate rule to cover a case. In public law the rule is "what is not authorised is not permitted" and in private law it is that "what is not prohibited is permitted"

This is precisely the reason why statutes governing the operations of

public bodies typically list the functions and powers of the body or

office-holder (as did the ASADA Act). The Respondent's contention

that it is necessary to find a prohibition on the conduct of a joint

(1991) 20 Federal Law Review 185 at 201; see also Williams v Commonwealth (2012) 248 CLR 156.

25

investigation proceeds from an incorrect premise, namely that ASADA

was permitted to do anything that it was not prohibited from doing.

(0

The CEO suggests that the fact that failures in governance

management or recruitment may be connected with doping violations

justifies ASADA investigating those matters and disclosing information

to the AFL to enable it to take disciplinary action. The CEO's

submission is founded on an incorrect construction of the legislation,

which mistakes the integers which must be connected under cl 4.21 of

the NAD Scheme.

(g) The question that had to be addressed under cl 4.21(2) before

ASADA could release any investigative information to the AFL was

whether the disclosure of that information to the AFL was for the

purposes of s 13(1)(g), that is to say the CEO had to be satisfied that

the particular disclosure was "for the purposes of, or in connection

with ASADA's investigation of possible violations of its anti-doping

rules as set out in the NAD Scheme. To argue that there is a factual

connection between failures in governance, management or

recruitment on the one hand and ASADA's investigation into possible

violations of its anti-doping rules addresses the wrong question

entirely.

(h) The CEO seeks to characterise the AFL's Player Rules as part of the

sporting administration body rules adopted by it and, on that basis

bring them within ASADA's remit. The CEO's construction of the

legislation is wrong. The sporting administration body rules are those

set out in cl 2.04 of the NAD Scheme and nothing else. ASADA has a

general function under s 15 of the ASADA Act of monitoring the

sporting body's compliance with those rules. The CEO is wrong to

rely on s 15(1)(a)(ii) and cl 2.04 of the NAD Scheme as establishing a

scheme conferring power on ASADA to investigate disciplinary

matters.

24 These matters are considered further below.

26

V. Statutory power to conduct a joint investigation must be positively found, not negatively excluded

25 The CEO contends (Opening, paragraph 60) that the Applicants contend for a

"negative implication" that ASADA had no power to conduct a joint

investigation.

26 Both ASADA and the office of the CEO are creatures of statute. They have

only the powers that are expressly , and impliedly conferred on them. The

CEO's contention that ASADA can do anything in the absence of an implied

limitation on its power is ill-founded and wrong in law.

27 As Isaacs J said in Australian Boot Trade Employees' Federation v Whybrow

& Co: 139

It is not open to the grantee of the power actually bestowed to add to its efficacy, as it is called, by some further means outside the limits of the power conferred, for the purpose of more effectively coping with the evils intended to be met. ... The authority must be taken as it is created, taken to the full, but not exceeded. In other words, in the absence of express statement to the contrary, you may complement, but you may not supplement, a granted power.

28 Most importantly, there can be no unfettered power in a statutory authority of

the nature of ASADA, or in an official such as the CEO: "... the notion of

'unbridled discretion' has no place in the Australian universe of discourse. 1040

This is particularly so when the statutory authority has the power to make a

decision that has punitive-type consequences, as in this case. To require a

professional athlete to show cause why he or she should not be referred to

the Anti-Doping Rule Violation Panel is to exercise a power of the utmost

seriousness for the athlete and those associated directly with the athlete's

possible or potential violation.

29 Furthermore, it was the purpose of the joint investigation in this case for

ASADA (a government entity) to side step the limitations on its own powers by

using the private contractual powers of the AFL vis a vis the players, support

staff and club. Moreover, by so doing it intended to, and did, circumvent the

common law right to silence of the individuals involved; a right not abrogated

139 (1910) 11 CLR 311 at 338. 140 Wotton v Queensland (2012) 246 CLR 1 at [10].

27

in the empowering legislation. It is an important principle that Acts be

construed where construction choices are open so as not to encroach upon

common law rights and freedoms. 141

30 In that context, the legislative scheme must be read narrowly in favour of

protecting the rights of the individuals and against unfettered powers for

ASADA. Legislation is presumed not to abrogate a fundamental right, freedom

or immunity other than by express or unambiguous language. 142

31 The suggestion (Opening, paragraph 60.2) that Parliament might have been

expected expressly to prohibit joint investigations overlooks many things.

(a) First, the legislative regime expressly records Parliament's positive

intention to establish ASADA as an independent investigative body, to

which independent investigator sporting administration bodies are

required to refer 143 all potential breaches of the anti-doping rules for

investigation. The obligation on sporting administration bodies to

cooperate l " with an investigation by ASADA only reinforces that

ASADA is the investigator (to whom cooperation must be extended),

not the sporting administration body.

(b) Secondly, it is inconsistent with the scheme of the Act and the

detailed provisions imposing strict confidentiality obligations on

various classes of information. The establishment of a joint

investigation would necessarily mean that ASADA, as the guardian of

confidential investigative information, would lose all control over its

release and use by the other investigating party.

32 As the Respondent himself points out in opening (Opening, paragraph 43),

that, in delivering his second reading speech in support of the original Bill, the

Minister stated that the NAD scheme would provide for sporting organisations

to "[refer] violations of the scheme to ASADA" and "[assist] ASADA in the

course of its investigations".

141 Evans v State of NSW (2008) 168 FCR 576. 142 Coco v the Queen (1994) 179 CLR 427; Evans v State of NSW (2008) 168 FCR 576. 143 NAD Scheme cl 2.04(d), (i), 144 NAD Scheme cl 2.04(e), (0, (j).

28

33 The Respondent's reliance on Pacific Coal; Ex parte CFMEU (2000) 203 CLR

346 (Opening, paragraph 65) is inapt for the same reasons. The relevant

enquiry here is not whether Parliament might do indirectly what it cannot do

directly (and so, in some cases, avoid a direct prohibition), but whether

Parliament has in fact given ASADA the power to conduct a joint enquiry with

the AFL, utilising the AFL's compulsory powers, and to provide the AFL with

simultaneous access to interviews and other investigative information,

whether from the outset or by a subsequent report, so as to arm the AFL with

the material to lay disciplinary charges for breach of the AFL rules.

VI. There is no express or implied power to investigate jointly: ASADA is

the independent investigator of possible doping violations

34 The ASADA Act establishes ASADA as an investigative body that is to

operate independently of government and sporting administration bodies, and

sets out strict protections for those who provide evidence and other

information to ASADA as the investigator: EFC & Hircl opening submissions,

paragraphs 214-216.

35 The scheme of the Act is that possible violations of the anti-doping rules are

to be investigated by ASADA, to the exclusion of any investigation of those

violations by a sporting administration body such as the AFL.

36 Thus, under clause 2.04, the sporting administration body must "(i) submit to

the operations of ASADA" and "(j) refer all instances of possible of anti-doping

rule violations to ASADA for investigation and cooperate with any

investigation, as required."

37 ASADA can request information from a sporting administration body to assist

its investigation. In that event, the sporting administration body is required to

cooperate by providing ASADA with the specified information and ASADA is

authorised to use that information: clauses 1.03(2) and 2.04(d), (e), (f) and (j)

(clause 2.04 is directly supported by s 15(1) and s 15(2)(b) and (c) of the Act).

38 The fact that ASADA can request information from a sporting administration

body, such as the AFL, does not provide any authority for the AFL to act as a

29

joint investigator and to obtain access to all of the investigation information as

and when it is obtained by ASADA.

39 The CEO relies heavily on extraneous material concerning the 2013

amendments to the ASADA Act (Opening, paragraphs 51-59). Far from

assisting the CEO's case, that material points to the very absence of the

powers that the CEO contends he and ASADA had prior to those

amendments. In particular, senior counsel for the CEO relied heavily on the

statements of the Minister in his Second Reading Speech in which the

Minister said that he would ask national sporting organisations to amend their

codes of conduct so that those they control must contractually cooperate with

an investigation by ASADA (Opening, paragraph 54). This statement refers

to possible future action, and had no relevance or application in 2013 to the

AFL's then rules. The Minister's statement only reinforces that the

cooperative regime the CEO contends for was introduced by the 2013

amendments and did not previously exist.

40 The CEO's Opening Written Submissions go on in paragraph 56 to refer to a

statement by one member of a Senate committee on 1 March 2013, arguing

that ASADA does not need compulsive powers when players already have

obligations under their existing contracts. There is no basis for contending

that an argument made by one member of the Senate explains (as the CEO

contends) Parliament's decision not to abrogate the privilege against self-

incrimination in the 2013 amendments. The inescapable fact is that ASADA

had no compulsive powers prior to 1 August 2013 and nor did the AFL have

any contractual powers that compelled players or club staff to cooperate with

an investigation being undertaken by ASADA by itself in the manner

contemplated by the legislation. ASADA had no power at any point, whether

before or after 1 August, to abrogate or deny by any means an interviewee's

privilege against self-incrimination.

VII. ASADA's investigatory role is confined to investigating anti-doping rule

violations, and not disciplinary matters such as "bringing the game

into disrepute"

41 ASADA's functions are concerned with:

30

(a) the detection and prosecution of anti-doping rule violations — s 13(1),

s 21(1)(a)(b) and (k), Regulation 5, NAD Scheme dl 1.03(2),2.O1,

3.27, 4.07A-4.16, and 4.17 to 4.21; and

(b) more general machinery, such as the monitoring of sporting

administration bodies' compliance with anti-doping policies and

procedures and general educational functions — ss 15, 21(1)(c)-(ja),

NAD Scheme cl 1.02(1)(a)-(c).

42 It is not a function of ASADA to investigate, or assist a sporting administration

body to investigate, disciplinary matters per se, such as failures in

management systems at a sporting club, including in its supervision of

employees.

(a) In this case, EFC and Hird were charged with breaches of cl 1.6 of the

AFL Player Rules for "conduct unbecoming or likely to prejudice the

interests or reputation of the Australian Football League or to bring

the game of football into disrepute". 145

(b) The Statement of Grounds dealt with matters such as the failure to

conduct background checks on employee3, disregarding standard

practices of the human resources department in employing Dank and

Robinson, and deficiencies in record keeping systems.

43 In relation to managerial matters that foster or discourage environments in

which anti-doping rule violations may occur, ASADA's functions are confined

to "supporting" and "encouraging" the development of initiatives, programs

and procedures (s 21(1)(e) and (f), NAD Scheme cl 1.02). There is no power

to "investigate" disciplinary or managerial matters as such. The only

investigative power the CEO has is to investigate potential violations of the

anti-doping rules (s 13)(1)(f)). Governance and management failures might

be considered incidentally by ASADA in the course of its investigation of

potential anti-doping violations, but the fact that such matters may arise

incidentally does not authorise the CEO to provide investigative information

about those matters to a sporting administration body to enable the sporting

145

EFC Charges ACB.A.02.0475 (Ex XC-28 to Campbell IV).

31

administration body to bring disciplinary proceedings for managerial failings that do not require proof of any anti-doping violation.

44 The CEO attempts to bring disciplinary matters within ASADA's remit by

characterising the AFL Player Rules as forming part of the "sporting

administration body rules" for the purposes of s 15(1)(a)(b).

VI11. International conventions do not augment statutory powers conferred on ASADA

45 The CEO relies heavily on portions of three international conventions

(Opening, paragraphs 16-41, 60-61) to support his arguments that ASADA:

(a) has the power to conduct joint investigations; and

(b) the proper subject matter of investigations by ASADA extends to

matters of governance that may have some peripheral connection

with the potential for doping violations to occur, whether or not any

such violations have occurred.

46 The CEO's submission seeks to raise the international conventions above the

legislation, by which the Commonwealth Parliament implemented them. That

is not permissible. Outside of any enabling reference in ASADA's governing

legislation, at most, the Conventions may be referred to:

(a) at common law146 to resolve ambiguity in the words of the legislation;

Or

(b) under s 15AB of the Acts Interpretation Act 1901 (Cth) to confirm that

the meaning of a provision is the ordinary meaning or to determine

the meaning when the provision is ambiguous or obscure, or the

ordinary meaning would lead to a result which is manifestly absurd or

unreasonable.

47 In this case, the words of the governing legislation are not relevantly

ambiguous. The CEO's recourse to the Conventions to supplement or expand

146 Eg Yager v R (1977) 139 CLR 28 at 43-44 (Mason J). See Pearce and Geddes Statutory Interpretation in Australia (7th ed) [3.13].

32

the governing legislation is completely wrong-headed. Power for the actions of

ASADA must reside in the governing legislation. 147

48 Nor do any of the references to the international conventions within the

governing legislation (eg NAD Scheme cl 1.03B, cl 2.04(a)) function to confer

powers or identify subject matter for ASADA's investigative functions. Clause

2.04(a) merely provides that one "sporting administration body rule" is that a

sporting administration body must have policies and practices that "comply

with (i) the mandatory provisions of the [VVADAI Code and the International

Standards" and the NAD Scheme. However, ASADA's monitoring role

(cl 2.03(2)(a)) in respect of that matter only extends to ensuring that the

sporting administration body does indeed have policies and practices that do comply with those international instruments. That provides no basis at all for

the CEO's submission that ASADA has power to enquire whether a football

club's managerial practices and policies (whether about doping or anything

else) brought the game into disrepute.

49 In any event, generalised reference to statements in international instruments

regarding cooperation — such as those in the WADA Code relied on by the

CEO — are of no moment and do not confer any authority to conduct a joint

investigation. Parliament and the Governor-General in Council have

determined the balance between the functions and role of ASADA, and the

role of ASADA sporting administration bodies in relation to anti-doping

violations. ASADA is to be the sole investigator, and an independent one at

that. Parliament and the Governor-General in Council have specified the

matters in respect of which sporting administration bodies are required to

cooperate with an ASADA investigation into anti-doping violations by

prescribing the content of sporting administration body rules.

50 Those matters are set out in cl 2.04 of the NAD Scheme. Reference to those

matters shows that sporting administration bodies are required to provide

various categories of information to ASADA and cooperate with ASADA's

investigations. The submission that there is no clear distinction between, on

the one hand, ASADA's power to investigate, and on the other its authority to

147 Saeed v Minister for Immigration and Citizenship f_20101 HCA 23; (2010) 241 CLR 252 at 264- 265 r3 11.

33

request, and then use, information from a sporting administration body (with

which request the sporting administration body must cooperate: NAD Scheme

cl 1.03) is specious. ASADA did not ask the AFL to assist it by providing

discrete pieces of information. It entered into a joint investigation with the AFL,

the defining features of which were that ASADA co-opted the AFL's

compulsive powers, the AFL functioned as a willing secretariat, and the price

ASADA agreed to pay was that it provided the AFL with immediate access to

investigative information that it knew the AFL planned to use for its own

disciplinary purposes.

IX. The CEO's erroneous approach to the governing legislation

51 In his written opening (at paragraphs 72-83), the CEO mounts an elaborate

argument to the effect that the AFL Rules and Regulations formed part of the

AFL's "anti-doping policies and practices" for the purposes of cl 2.04(a) of the

NAD Scheme, triggering reporting obligations on the AFL and monitoring

functions on the part of ASADA. In his opening, Senior counsel for the CEO

argued that the monitoring functions conferred by cl 2.03 extend to the AFL

Player Rules and Regulations, not just the "dumbed down" Anti-Doping Code.

52 A number of points may be made:

(a) As noted above, ASADA's monitoring role (cl 2.04(2)(a)) is limited to

monitoring the AFL's compliance with obligations imposed on the AFL

by cl 2.04. The only "sporting administration body rules" in respect of

which ASADA has any remit are those actually set out in cl 2.04 of the

NAD Scheme, not whatever rules the AFL may have seen fit to adopt

regarding bringing the game into disrepute, or indeed its anti-doping

code.

(b) ASADA's monitoring role is to be contrasted with its investigative role,

wherein the CEO is charged (s 13(1)(f) of the ASADA Act) with

investigating possible breaches of the "anti-doping rules". Those rules

are defined to be those set out in cl 2.01 of the NAD Scheme, which

sets out various "presence" and "non-presence" rules. There is

nothing in the anti-doping rules about managerial systems or

practices.

34

X. The power to use information obtained from sporting administration bodies does not suggest a power to conduct joint investigations

53 Contrary to the CEO's submission (Opening paragraph 68), cl 1.03(2) of the

NAD Scheme does not show a Parliamentary intention that sporting

administration bodies may act as co-investigators. That provision merely

authorises ASADA to use information provided by a sporting body (which may

include information ASADA requests from that body). However, the nature of

the information that may so be provided and used must be read in light of the

whole of the NAD Scheme, and particularly cl 2.04, which sets out the nature

of the information to be provided to ASADA by a sporting administration body.

54 There is nothing in the potential for ASADA to ask a sporting administration

body to provide some information (eg athlete whereabouts) that gives rise to a

power to conduct a joint investigation.

55 In any event, it is wrong to characterise the information obtained through the

joint investigation as information obtained from the AFL. As has been noted

above, ASADA had carriage of the investigation including, crucially, the

conduct of the interviews. Information obtained by ASADA investigators

cannot be characterised as having been provided "by the AFL" for any

purpose. (It is convenient to note here that, for the same reasons, the CEO's

submission that he could simply "re-acquire" the information from the AFL is

also misconceived. ASADA's provision of illegally obtained information to the

AFL does not render the information "the AFL's information" so as to permit its

reacquisition by ASADA under cl 1.03.)

Xl. The statutory confidentiality obligations reinforce that there is no

power to conduct a joint investigation

56 The ASADA Act makes it very clear that ASADA had no power, express or

implied, to establish and conduct a joint investigation with the AFL under

which the AFL immediately and simultaneously obtained access to all of the

investigation information gathered by ASADA:

(a) The Act charges the CEO, assisted by ASADA staff, with the task of

investigating anti-doping violations (ss 13(1)(f), 20B and 24L);

35

(b) The Act limits the range of persons who can assist the CEO in

discharging his/her functions to ASADA staff and other

Commonwealth employees. If the CEO obtains assistance from such

persons they become "entrusted persons" for the purposes of s 71

(see ss 20B, 24M, 24N and ss 69-71);

(c) The Act imposes strict confidentiality obligations on the group of

persons legitimately engaged in the investigation of anti-doping rule

violations (ss 69-71):

(i) section 71 makes it a criminal offence for an entrusted

person to disclose NAD scheme personal information;

(ii) section 69 defines "entrusted persons" in a way that

captures the CEO and those authorised to assist the

CEO in the discharge of his/her investigative functions

(ASADA staff and Commonwealth staff whose services

are made available under s 24M)

(iii) the only relevant exceptions are:

(A) disclosure "for the purposes of tnis Act" (s 71(2)(a));

(B) disclosure "for the purposes of the NAD scheme"

(s 71(2)(b)); and

(C) disclosure as prescribed by the regulations (s 71(2)(g)).

(d) Strict statutory limits apply to the disclosure of non-entry information

under clause 4.21 of the NAD scheme. Under clause 4.21, the CEO

must first be satisfied that the information is non-entry information as

defined, and that it should be disclosed to a sporting body "for the

purposes of, or in connection with" ASADA's investigation into

possible anti-doping violations: see EFC's & Hird's opening

submissions at paragraphs 234-239.

(e) Clause 4.21 is incapable of applying to, or authorising, the conduct of

a joint investigation between ASADA and the AFL by which the AFL

would obtain access to investigation information as and when ASADA

obtained it. The clause requires a deliberative consideration by the

36

CEO of the question whether the disclosure of a particular piece of

information would be "for the purposes of, or in connection with" the

specified subject, namely ASADA's investigation of doping violations

or, after 1 August, ASADA's administration of the NAD Scheme.

57 Strict statutory limits apply to the CEO's disclosure of every other category of

investigative information that the CEO obtains:

(a) strict limits apply to the disclosure of entry information under clauses

4.17, 4.18 and 4.19 of the NAD scheme;

(b) regulations 5 and 5A permit ASADA to disclose testing results to

sporting administration bodies for drug testing programs, but only on

condition that the information is not to be used or disclosed by the

sporting administration body for other purposes; and

(c) strict limits apply to the disclosure of customs information under s 68.

(d) All these provisions are inconsistent with any contention that the AFL

could act as a joint investigator and obtain immediate and

simultaneous access to non-entry investigation information. That

information is likely to be the most sensitive of all the categories of

information obtained by ASADA.

58 In enacting this detailed confidentiality regime, Parliament recognised that

investigation information is potentially very damaging and its disclosure must

be limited to those entrusted persons who are authorised to participate in the

investigation. Beyond that, identified information can only be disclosed when

ASADA assesses that it is necessary to do so and the requirements of the Act

have been satisfied.

59 The Act does not contemplate that persons or entities who are not "entrusted

persons" will participate in an investigation so as to obtain the same access to

investigation information as ASADA obtains. The AFL was never an

"entrusted person".

60 If ASADA had the power to engage in a joint investigation with someone who

was not an "entrusted person", that would entirely circumvent the

confidentiality provisions in s 71 as NAD Scheme personal information could

37

be disclosed, without any restriction on its use, to persons who were not

"entrusted persons" themselves and so subject to the limitations on

disclosure. Ms Perdikogiannis made an observation to substantially this effect

on 19 August when she responded to Mr Nolan's emails asserting that,

because it was a joint investigation from the outset, the AFL was a co-owner

of the investigative information and the Interim Report (ADF 271).

XII. The interim report was provided by ASADA to the AFL to enable the

AFL to bring disciplinary proceedings against EFC and support staff

61 ASADA knew from February 2013 that the AFL was contemplating its own

disciplinary charges and sanctions against EEC and its officiars: see, for

example, exhibit AA-7, 148 amongst other documents.

62 Part of the arrangement for the joint investigation between ASADA and the

AFL was that the AFL would use information obtained from the investigation

to bring disciplinary charges against EFC and support staff under the AFL's

rules. The charges contemplated by the AFL did not depend on proof of any

anti-doping violations.

63 In April 2013, the AFL requested a report from ASADA arising out of the

investigation that it could use for its own disciplinary purposes. 149 ASADA

responded positively: see EFC's & Hird's opening submissions at paragraphs

115-123.

• Andruska agreed that she knew that the AFL wanted a report as at

April 2013. 150 She gave evidence that she understood that the report

for the AFL would be a report 'wrapping up the total investigation'. 151

• That evidence as to the nature of the 'interim report' wanted by the AFL

at that time is at odds with Clothier's email to Mullaly and Nolan (inter

alia) of 18 April 2014. In that email, Clothier refers to the AFL 'trying to

pursue disciplinary matters'.

148 ACB.A.02.0605. 149 ACB.C.07.2259. 150 T 187, In 35. 151 T 187, In 41 (and following).

38

• It is also inconsistent with Clothier's email of 26 April 2013 152 where

reference is made to potential public comment on the 'interim report' by

the AFL, and Clothier suggests that the EFC might use the report for

disciplinary action.

64 The AFL's desire for a report from ASADA that it could use to formulate

disciplinary charges against EFC and support staff was made unequivocally

clear as a result of a series of meetings and telephone conferences in the

period late May to July 2013. Some of these meetings involved ASADA's

CEO and Mr McLachlan of the AFL.

(a) On 24 May 2013, Andruska attended a meeting with Demetriou,

Clothier, the responsible minister and his media advisor. 153 She gave

evidence that this meeting was unusual but she did not have an

independent recollection of it. 154

(b) Andruska's notes of that meeting record that Demetriou 155 said 'when

ASADA provides a report it wants to provide it openly.'

(c) Andruska could not recall what she said by way of response to

Demetriou's question 'What can we give AFL by end of July?' 156

(d) On 4 June 2013, Andruska attended a meeting with AFL

representatives. 157 She conceded that that meeting proceeded on the

basis that ASADA would provide a report to the AFL for disciplinary

purposes. 158

(e) Andruska's notes of the 4 June 2013 meeting refer to the 'integrity of

the competition', damage to the brand of football, 'lack of supervision'

and `govern lancer.

(f) Andruska's evidence was that she did not, in effect, decide to provide

the AFL with a report until just before a meeting on 19 June 2013. 159

152 ACB.C.07.2214, 153 ASA.0032.0180. 154 T 191, In 45. 155 T 190, In 39. 156 1192, In 43. 157 ACB.A.02.0618. 158 T 193, In 45 to T 194, In 5. See also T 205, In 6. 159 T 201, at In 15 and following.

39

(g) At that point, she anticipated, or knew, that the interim report would be

used by the AFL for its own purposes. 166

(h) Further, she proceeded on the basis that the AFL was free to use the

'raw material' that it itself held to produce its own report if it wished to

do so. 161 Andruska did not accept that that was because the AFL had

been provided with ASADA investigative information without

restriction but there could be no other basis for her conclusion as to

the AFL's ability to use the raw materia1. 162

By 5 July 2013, Andruska knew that ASADA had made a prior

commitment to provide the AFL with an interim report for the purpose

of assisting the AFL in its consideration of what steps it should take in

relation to the EFC and/or players and staff. 163

65 ASADA agreed to provide a report to the AFL by 1 August 2013 that the AFL

could use for its own decision-making about disciplinary charges: see EFC's &

Hird's opening submissions at paragraphs 128-137.

66 Further, at the AFL's request, ASADA agreed that the report would address

matters going to management and governance at EFC so as to support

disciplinary charges against EFC, including charges that EFC had engaged in

conduct that was prejudicial to the interests to the game: see ASADA's table

of outcomes, 2:00pm 16 July 2013; 164

and Burgess' file note of his meeting with Clothier on 19 July 2013. 166

67 Knowing that the AFL intended to use material from the joint investigation for

its own, and quite separate, disciplinary purposes:

(a) ASADA established a joint investigation and permitted the AFL

access to all investigative information other than ACC information;

160 T 202, In 30; see also paragraphs 47 and 59 of her Affidavit. 161 T 204, In 2. 162 T 204, In 7 to 10. 163 T 204, In 30 to T 205, In 45. 164 ACB.C.06.1418.

Annexure TB-4 (ACB.A.02.0790).

40

(b) ASADA permitted AFL officials to review its draft investigatory report

in July 2013; 167 and

(c )

on 2 August, ASADA provided the AFL with a comprehensive report

which dealt substantially with matters of governance. 169

(i) Andruska gave evidence that, prior to doing so, she

obtained legal advice regarding the basis upon which the

report was to be provided to the AFL. 169 Until receipt of

that advice, she had been content to provide the report to

the AFL without any limitation as to its use.

(ii) By 2 August 2013, however, things had changed. Armed

with advice that was contrary to her commitment to the

AFL, Andruska sought to impose, for the first time,

limitations upon the AFL's use of the report,

(iii) She did so in a formulaic way, picking up the language of

the legislation, in her 2 August letter to Demetriou of the

AFL. 179 There is no evidence, however, that she gave

any (or any real) consideration to the basis upon which it

was being provided and, in particular, that she had

determined, in the exercise of her power, that the report

could be used, lawfully, for its planned disciplinary

proceedings.

(d) Revised Word versions of the report were provided on 7, 171 8172 and

12 173 August 2013.

68 The AFL used the Interim Report to lay charges against EFC and Hird on

13 August 2013, 174 At the time of providing the report to the AFL, Andruska

knew that the report would be used in that way. 175 There is no evidence to

167 Burgess Affidavit, at paragraphs 22 to 30 (ACB.A.02.0738). 168 ACB.A.02.0637. T 212, In 5. 169 T 212, In 32. 170 See, for example, T 213, In 40 to T 214, In 5. 171 ACB.A.02.0641. 172 ACB.A.02.0642. 173 ACB.A.02.0643. 174 CB.02.0840 (Hird) and C13.02.0472 (EFC). 175 T 218, In 18.

41

the effect that Andruska took issue with the AFL's use of the report to lay

charges until after the event, and then ineffectually and in a token way.

69 Soon after it laid the charges against EFC and Hird, the AFL published the

EFC charge sheet to the media. That charge sheet was based on information

contained in the Interim Report or otherwise derived by the AFL from its

participation in the investigation.

70 Both the solicitors for EFC and the solicitors for Hird informed ASADA that

ASADA would be acting unlawfully if it provided the Interim Report to the AFL:

see Hargreaves letters to ASADA of 24 June, 178 and 31 July 2013, 177 Elena

Perdikogiannis' email to Clothier of 5 July 2013, 178 Ashurst's letter to ASADA

of 13 and 14 August 2013179 and ASADA's subsequent letter to the AFL of 15

August 2013._ 189

71 That letter (of 15 August 2013) was the first time that ASADA raised any

objection with the AFL as to its use of the interim report for disciplinary

purposes. That objection came to nought.

XIII. ASADA's provision of information to the AFL was in breach of the confidentiality obligations

72 ASADA's provision of information to the AFL in the course of the investigation

and by the provision of the interim report, was:

(a) for an improper purpose because, ASADA had no statutory power to

enquire into disciplinary matters for the purposes of facilitating the

AFL's consideration of whether to lay charges and, if laid, the proof of

those charges;

(b) in breach of the confidentiality obligations imposed by the statutory

scheme.

73 The first point has already been dealt with. Suffice it to say at this point that

EFC and Hird accept that, in conducting an investigation into potential

violations of the anti-doping rules set out in cl 2.01 of the NAD Scheme,

176 ACB.C.06.1536. 177 ACB.C.05.1233. 178 ACB.C,06,1485. 179 Part of JAH-3 (ACB.A.02.0818). 180 ACB.A.02.0649

42

ASADA's investigation may extend to factual subject matter that might also

support the laying of disciplinary charges. However, that does not mean that

ASADA is authorised to conduct an investigation into disciplinary infractions or

conduct an anti-doping rule violation investigation (or prepare interim

investigation reports) with a view to arming a sporting administration body with

evidence with which to lay disciplinary (not anti-doping) charges. The

consequence of this is that disclosure of information both in the running of the

investigation and by provision of the interim report was for a purpose which

was not authorised by the governing legislation.

74 As to the second point, in order for a disclosure of non-entry information to be

authorised by cl 4.21, the CEO must first be satisfied that the information is

non-entry information as defined, and that it should be disclosed to a sporting

body "for the purposes of, or in connection with" ASADA's investigation into

possible anti-doping violations (s 13(1)(g)).

75 The CEO's submissions proceed on the basis of a misapprehension about

what must be connected with what in order for disclosure to be authorised.

For example, the CEO contends (Opening, paragraph 86) that "if the

CEO/ASADA considered that governance/management issues at Essendon

were connected with its investigation into possible ADRV at Essendon, the

information could be disclosed to the AFL under cl 4.21" (see also paragraphs

97-99).

76 As is clear from this passage, the CEO impermissibly seeks to authorise

disclosure of information by pointing to a potential factual connection between

governance/management issues, on the one hand, and anti-doping rule

violations on the other hand. But that is not the connection that the statute

requires in order to authorise disclosure.

77 As is clear from s 13(1)(g), in order for disclosure to be authorised, the

necessary connection must exist between:

(a) the disclosure of information; and

(b) ASADA's investigation into breaches of the anti-doping rules (or, after

1 August 2013, the "administration of the NAD Scheme).

43

78 In short, the disclosure must be for the purpose of advancing ASADA's

investigation into anti-doping violations. Drawing a factual connection between

management/governance issues and anti-doping rule wholly misses the statutory mark.

79 The evidence establishes that there was no relevant deliberative consideration of the questions that should have been considered under

cl 4.21, either by the CEO or anyone else.

(a) In relation to events prior to 1 August, the then CEO, Ms Andruska,

never considered or approved what was involved in the establishment

and conduct of a joint investigation. Her evidence was that she did

not approve or authorise the conduct of interviews by ASADA at

which AFL personnel were present.

(b) Mr Mullaly drew attention to the absence of any power in ASADA to

conduct investigation interviews in that manner in his email of

8 February 2013 to Clothier, which was copied to Ms Perdikogiannis

and Mr Simmonsson.

(c) Nor did the CEO authorise or place any restrictions upon the open

sharing of investigative information between ASADA and the AFL that

Mr Nolan referred to in his emails of 30 July 2013 and 19 August

2013.

(d) The effect of the position adopted by ASADA during 2013, and the

case now presented by ASADA, is that such raw material could be

used by the AFL without restriction. In particular, the AFL was free to

use that raw material to prepare its own report to press disciplinary

charges against EFC and support staff for governance failures.

80 Further, the evidence given by Ms Andruska concerning the provision of the

Interim Report demonstrates that the requirements of cl 4.21 were not

properly considered or applied when ASADA provided the Interim Report to

the AFL on 2 August 2013.

44

(a) Ms Andruska knew (and had known from at least April 2013) that the

AFL planned to use the report it received to bring disciplinary charges

against EFC, Hird and EFC officials.

(b) However, by 1 August Ms Andruska felt that ASADA had committed

itself to providing the investigator's report to the AFL. Her letter of

2 August 2013 does not impose any restriction that would prevent the

AFL using the report to bring disciplinary charges. It merely uses the

formulaic words of cl 4.21 of the Scheme.

(c) About two weeks later, after the AFL had used the report to bring

disciplinary charges against EFC, Hird and EFC officials, ASADA

objected to the AFL using the report for that purpose. •But it took no

effective steps to enforce that objection.

81 It is clear that ASADA did not properly consider or apply the provisions of

cl 4.21 before the report was provide. Moreover, it is clear that the Interim

Report was not disclosed to the AFL for a purpose of, or connected with,

ASADA's investigation of doping violations, or ASADA's administration of the

NAD Scheme.

XIV. Illegality and invalidity

82 ASADA's investigation was conducted unlawfully in the following respects:

(a) ASADA did not have the power to conduct a joint investigation in the

way it did —

(i) by utilising the AFL's compulsory powers as a means of

compelling players and support staff to attend, answer

questions and hand over material;

(ii) by denying any capacity to players and support staff to

claim privilege against self-incrimination; and

(iii) by sharing ASADA's investigation information with the

AFL, much of it at the moment of the information's

receipt, as if the AFL was a joint investigator.

(b) ASADA continuously breached its confidentiality obligations under

s 71 —

45

(i )

by allowing the AFL to participate in the investigation

(most obviously, by sitting in the interview room with

ASADA, but also by receiving a regular supply of

information from the ASADA investigators) when the AFL

was not an entrusted person;

by providing the Interim Report to the AFL knowing that

the Interim Report would be used by the AFL for its own

separate disciplinary and governance purposes —

purposes that were not those of, or connected with, the

administration of NAD scheme; and

(c) ASADA acted for extraneous purposes in undertaking the

investigation — namely, for the purposes of:

(i) exploiting the AFL's powers to supply a deficiency in

ASADA's powers;

(ii) depriving those questioned of the privilege against self-

incrimination;

(iii) giving the AFL access to information collected Dy ASADA

in the investigation so that it could be used by the AFL for

its own disciplinary purposes; and

(iv) giving the AFL access to information collected by ASADA

otherwise than in accordance with the statutory regime

for divulging or communicating information;

(d) As is apparent, ASADA acted for purposes that were intertwined and

inseparable. In order to make use of the AFL's compulsive powers for

its anti-doping rule violation investigation, it had to let the AFL sit at

the interview table and thereby simultaneously acquire ASADA's

investigative information for its disciplinary purposes.

46

So, the Faustian Pact was struck. ASADA's twin

purposes (making use of the AFL's compulsory powers and making

information available to the AFL for its use for disciplinary purposes)

were both improper and extraneous to the ASADA Act and the

Regulations. They were substantial, "non-trivial" purposes 182 and

purposes which were not "harmless", "insubstantial" or

"insignificant". 183

(e) In any event, even if the correct test requires the Applicants to

demonstrate that the improper purpose was substantial in the sense

that "but for" the improper purpose, the power would not have been

exercised as it was, that test is clearly satisfied in this case. Without

the intertwined, extraneous purposes referred to above, ASADA

would not have engaged in a joint investigation with the AFL. There

would have been no reason for it to do so, and there is no evidence at

all that it would have done so.

(0

As for the Interim Report, ASADA prepared the Report at AFL's

request, allowed the AFL to review the draft report prior to 1 August,

and provided the Report to the AFL on 2 August. All of this was done

for the extraneous purpose of arming the AFL with information

collected by ASADA so it could be used by the AFL to press

disciplinary charges against EFC and its officials.

The consequences of illegality and improper purposes

83 Commonwealth authorities are required to act within the lavv, 184 within the

bounds of the powers granted them by the Commonwealth parliament. Just

as privative clauses cannot exclude the Court's jurisdiction to ensure that

statutory authorities act within the bounds of their power (otherwise there

182

R&R Fazzolari Ply Ltd v Parramatta City Council (2009) 237 CLR 603 at [55], per French CJ. 183 In their opening submissions (at paragraph 273) the Applicants referred to Lu v Minister for

Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 at 360 and Lansen v Minister for Environment and Heritage (2008) 174 FCR 14 at 40. The overlap between the case law on relevant and irrelevant considerations and the law on multiple purposes was noted and supported by the Court of Appeal in East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605 at [334], [343].

184 For example, Plaintiff S157/2002 v Commonwealth at 482-483 [5], (Gleeson CJ).

47

would be no sanction for acting in excess of power) 185 , so too must this court

be astute not to condone, whether by reference to discretionary matters or

otherwise, ASADA acting outside its statutory powers.

84 As the High Court observed in Re Refugee Review Tribunal; Ex parte Aala:

There is a jurisdictional error if the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. 186

That is this case. The CEO decided to enter into a joint investigation with the

AFL, but had no power to do so.

85 The investigation extended into failures of governance and management

within the Essendon Football Club in 2012.

(a) If this were an investigation solely by ASADA into possible anti-doping

violations, and those matters arose incidentally to the investigation of

those violations, this would not be a matter of any moment.

(b) However, the investigation was constituted and conducted as a joint

investigation with personnel from the AFL participating in all of the

interviews, receiving the transcripts of interviews, and receiving other

information gathered by ASADA in the course of the investigation.

(c) This information was made available by ASADA to the AFL knowing

that the AFL intended to use the information in order to bring

disciplinary charges against the Essendon Football Club for breaches

of AFL rules (breaches which did not depend upon any proof of anti-

doping rule violations).

(d) To provide investigative information to the AFL in those

circumstances and to provide a report to the AFL on those

governance matters that the AFL would use to lay disciplinary

charges was both beyond ASADA's power and amounted to conduct

for improper purposes.

185 Plaintiff S157/2002 v Commonwealth at 484 [10] (Gleeson CJ). 186 (2000) 204 CLR 82 at 141 [163], cited by French CJ, Gummow, Hayne, Crennan, Kiefel and

Bell 1.1 in Kirk v Industrial Court (NSW) (2009) 239 CLR 531 at 571 [66].

48

(e) As such, the case bears the relevant hallmarks of jurisdictional error,

namely the decision-maker "misapprehending the limits of its

functions and powers". 187

86 Under the scheme of the governing legislation, athletes are only to face the

prospect of having an entry made by the ADRVP if the CEO has received

"evidence or information showing a possible non-presence anti-doping rule

violation" and the CEO "following a review of the evidence or information"

"determines" that there is a possible contravention: cl 4.-07A(1). The sole

statutory purpose for the investigation is for the CEO to determine whether

there is evidence of a possible contravention that should be placed before the

Panel.

87 The statutory process of investigation, review, and the issue of notices to

show cause before the Panel process is akin to the statutory reference to

"decision[s]... made under this Act" which the High Court in Plaintiff S157 held

"must be read so as to refer to decisions which involve neither a failure to

exercise jurisdiction nor an excess of the jurisdiction conferred by the Act". 188

As the High Court went on to say:

This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all". 189

The process must be one which is not poisoned by jurisdictional error and if it

is, it is to be regarded in law as no valid process at all.

88 Their Honours in S157 referred to Minister for Immigration and Multicultural Affairs v Bhardwai. 19° In that case, the High Court was considering the effect

of a decision of the Tribunal dismissing an application for review in

circumstances where the Tribunal had overlooked a letter seeking a deferred

hearing date. Gaudron and Gummow JJ found that there was no reason in

principle why, absent any implied direction in the relevant Act, the general law

187 Kirk v Industrial Court (NS1/40 (2009) 239 CLR 531 at 574 [74] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

188 Plaintiff S157/2002 v Commonwealth at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

189 Their Honours there cited Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-5 [511, 618 [63] and 646-7 [152].

190 (2002) 209 CLR 597.

49

should treat administrative decisions involving jurisdictional error as binding or

having legal effect unless and until set aside. As their Honours found (and has

oft been cited): "A decision that involves jurisdictional error is a decision that

lacks legal foundation and is properly regarded, in law, as no decision at au2191

89 It follows that, if the CEO's decision to issue the Show Cause Notices is

infected with jurisdictional error (which would be the case if the court is

satisfied that ASADA acted ultra vires 192 ), that decision is, in law, "no decision

at all" and the show cause notices must be set aside. Being a nullity, such a

purported "decision" cannot be resurrected in law by reference to

discretionary factors.

90 The decision to issue show cause notices only has any status at all (and may

yet be set aside) if it is possible to discern in the governing legislation that

Parliament intended the decision to stand notwithstanding that, at general law,

it is a nullity.

(a) For example, in Plaintiff S157, the court enquired whether there was

anything in the relevant Act to show that Parliament intended provide

that decisions of the Tribunal, though reached by an unfair process,

are nevertheless valid and binding. 193

(b) So too, in this case, in considering the question of relief, the Court

may enquire whether there is any indication that Parliament intended

that ASADA be able to use information obtained through an illegal

process.

(c) The short (and only) answer is that there is no such indication. Far

from it, the scheme of the Act not only does not authorise a joint

191

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51]. The position of administrative acts may be contrasted with the position of the judicial orders of superior courts which are valid until set aside, even if made in excess of jurisdiction: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [151] (Hayne J). At most, administrative acts are presumed to be valid until challenged.

192 In Bhardwaj at [149], Hayne J characterised a decision reached by the Tribunal that was not authorised by the Act and which did not constitute performance of its duty under the Act as a jurisdictional error.

193 Plaintiff S157/2002 v Commonwealth at [37] (Gleeson CJ); Evans v State of NSW (2008) 168 FCR 576.

50

investigation (which is sufficient to establish jurisdictional error) it

impliedly prohibits it. This means relief must go. Furthermore, given

the obvious impact of the illegal investigation on the rights of

individuals if the show cause process were to continue in reliance on

the joint investigation material (the players, the coach and their

employer whose business depends on their eligibility to play), clear

words would be required to permit ASADA to maintain the illegally

obtained information. A fortiori, this must follow because the unlawful

conduct deprived those employees of the Club who appeared at the

interviews of their privilege against self-incrimination.

91 As their Honours observed in Bhardwaj, the fact that a decision made in

jurisdictional error is a nullity does not, in and of itself, prevent a decision-

maker making another, lawful, decision. 194 In this case, EFC and Hird accept

that there is nothing preventing the CEO reviewing such legally obtained

evidence as it may have (or even seeking to obtain more evidence) and

considering whether that reaches the necessary threshold to trigger the

issuing of fresh show cause notices. However, the mere potential for the CEO

to go through that process provides no basis for any refusal to set aside the

show cause notices.

92 The show cause notices were based, as ASADA has admitted, substantially

upon information obtained in the course of the joint investigation.

195 Accordingly, those notices are invalid.

194 (2002) 209 CLR 597 at 615-616 (Gaudron and GummowJJ, McHugh J agreeing). 195

The Applicants have tendered notices issued by the AFL to Players requiring their attendance at interviews (AFL.50.03.02.18, EFC.001.002233, EFC.001.002238, EFC.001.002239, EFC.001.011334, EFC.001.011335, EFC.001.011336, EFC.001.021602,

51

XV. Relief

No discretion

93 For the reasons outlined in opening, there is no reason not to make the declarations sought by the Applicants. There does not appear to be any contest on this matter.

94 The difference between the parties lies in whether consequential relief must, or ought, to be granted:

(a) in respect of the existing show cause notices; and

(b) to prevent the future use of the information obtained from the illegal joint investigation by ASADA.

95 In the first instance, the analysis of what relief is to be granted is determined by construction of the statute. In Project Blue Sky, the majority identified as "the real issue" "whether an act done in breach of [a] legislative provision is invalid" 196. The Court's language of "invalidity" does not lend itself to any notion of discretion as to the consequences of invalidity. This Court has no discretionary jurisdiction to spare ASADA's ultra vires the inevitable consequences of its having been undertaken without statutory power and for improper (unauthorised) purposes. That action is invalid for all purposes and cannot be saved. 197

96 Rather, as the majority in in Project Blue Sky stated:

EFC.001.021542, EFC.001.021543, EFC.001.021544, EFC.001.021545, EFC.001.021546, EFC.001.021547, EFC.001.021548, EFC.001.021549, EFC.001.021550, EFC.001.021551, EFC.001.021552, EFC.001 .021553, EFC.001.021555, EFC.001.021556, EFC.001.021557, EFC.001.021558, EFC.001.021559, EFC.001.021560, EFC.001.021561, EFC.001.021562, EFC.001.021563, EFC.001.021564, EFC.001.021565, EFC.001.021566, EFC.001.021567, EFC.001.021574, EFC.001.021523, EFC.001.021524, EFC.001.021525, EFC.001.021526, EFC.001.021527, EFC.001.021528, EFC.001.021362, EFC.001.021363, EFC.001.021364, EFC.001.021365, EFC.001.021366).

196 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 193) (McHugh, Gummow, Kirby and Hayne JJ).

197 See also, for example, Chelfco Ninety-Four Pty Ltd v Road Traffic Authority [1985] VR 1 at 22. There the Supreme Court held, inter alia, that the absence of a delegation meant that purported approvals and refusals of approval applications for passenger ferry services were void and of no effect.

52

A better test for determining the issue of validity is to ask whether it was a

purpose of the legislation that an act done in breach of the provision should

be invalid. 198

97 As already outlined above, a decision in excess of power is a nullity unless

the statute discloses an intention on the part of the legislature to give the

impugned decision some operation until it is set aside. Neither the ASADA Act

nor the ASADA Regulations disclose any intention that would displace the

usual consequences of jurisdictional error at common law. 199 On the contrary,

the governing legislation shows an intention on the part of Parliament to

carefully set the bounds of the tasks ASADA was to undertake, the powers it

had with which to undertake those tasks and the persons who could assist in

the discharge of those responsibilities and receive information obtained or

generated by ASADA in the course of those activities. The entire scheme of

the Act precludes any joint investigation and the disclosures it necessarily

involves to persons who are not entrusted persons.

98 All of those matters lead to one conclusion only: the governing legislation did

not authorise, and so prohibited, ASADA:

(a) engaging in a joint investigation with the AFL of the kind that ASADA

did pursue (which went far beyond merely obtaining cooperation from

a sporting administration body in the provision of discrete pieces of

information); and/or

(b) conducting an investigation with a view to providing the AFL with

material it knew the AFL intended to use in order to lay disciplinary,

not anti-doping, charges.

99 The Applicants only need to succeed on one of those matters in order to

obtain relief setting aside the show cause notices (or, more precisely,

confirming that those notices are a nullity at law).

198

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] (per McHugh, Gummow, Kirby and Hayne JJ).

199 Cf the wide-ranging public inconvenience referred to in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [97] (McHugh, Gummow, Kirby and Hayne JJ). In this case, there would be no inconvenience to members of the public who relied on the validity of ASADA's conduct. The only inconvenience would be to ASADA, which was the architect of its own illegal conduct.

53

100 Moreover, the cases speak of actions taken without statutory power being

"invalid". Invalidity is the end of the matter:

101 The suggestion from the CEO that consequential relief should not be granted

to prevent the re-use of the information obtained during the joint investigation

has no merit and is apt to lead the court into error. Any explicit or tacit

permission granted to ASADA to re-use the tainted information would rob the

Court's declarations and orders regarding the existing show cause notices of

any utility. Further, any re-use would immediately result in the commission of

further ultra vires conduct, which would be a nullity for the same reasons as

the existing show cause notices. The Court is alert to the need to fashion

orders that prevent an unnecessary multiplicity of proceedings.

102 In this case, consequential relief, as sought, should be granted to ensure that

ASADA is not permitted to retain the fruits of its illegal investigation to the

undeniable prejudice of the applicants and the 34 Players.

Even if some consequential relief is discretionary, it should issue

103 If the Court finds, contrary to the Applicants' submissions, that some or all of

the consequential relief sought by the Applicants is discretionary, that relief

should issue for the following reasons:

(a) The nature of the illegality is relevant. In this case, there was no

innocent blunder. ASADA and the AFL decided (before and

independent of any approach from EFC) to conduct a joint

investigation whereby ASADA would use the AFL's compulsory

powers and to run the legal risks they knew that involved.

Ms Andruska conceded that, and also that ASADA investigators

would be effectively running the investigation.

(b) ASADA's conduct leaves a lot to be desired. There is no evidence of

any considered decisions having been made by anyone (and certainly

not by Ms Andruska) to:

(i )

enter into the joint investigation;

(ii) conduct joint interviews in which interviewees were

denied any privilege against self-incrimination;

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(iii) provide immediate access to the AFL to investigative

information obtained during information and to other

information during the course of the investigation.

(c) Highly confidential information was provided by ASADA to the AFL in

breach of the Act and the Regulations.

(d) ASADA and the AFL dismissively brushed off objections from those,

including the legal representatives of EFC employees (Russell Kennedy and Ashurst) regarding the legality of the joint investigation

and the legality of providing the interim report and from the Club's own solicitors regarding the latter point.

(e) ASADA acted for an improper purpose in making the interim report

available to the AFL when it knew full well the AFL proposed to use

the report to lay disciplinary charges. Even when the CEO received advice (which belatedly found voice in ASADA's letter of 15 August) Ms Andruska persisted in providing the interim report to the AFL and merely inserted a self-serving invocation of the statutory formula from

clause 4.21 of the NAD Scheme in her letter of 2 August 2013, shc did nothing to convey the restriction that she claimed in cross-

examination was pregnant in that statement. When invited by the judge to identify for what investigative purpose ASADA provided the interim report to the AFL, Ms Andruska did not offer any. Her

response was to the effect that she had committed to providing the

report to the AFL and the best she could do was provide it on the basis set out in her letter of 2 August. 20°

(f) Even when Ashurst complained that the Interim Report had been blatantly used to formulate the charges against Hird, ASADA did

nothing more than write another self-serving letter to the AFL (15 August 2013) that letter was about backside protection and

nothing else. One might reasonably infer from the provision of Word

versions of the interim report to the AFL that ASADA knew the AFL

would be cutting and pasting from that report into its charges.

200 TS216.42-TS217.22.

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Ms Andruska's evidence about the AFL having other material as well

was a plainly partisan attempt to justify what should never have

occurred.

(g) ASADA's illegal investigation has already operated to the very

substantial prejudice of EFC, Hird and the 34 Players. EFC and Hird

have faced disciplinary charges laid by the AFL based on the interim

report provided to the AFL in breach of the Act and the NAD Scheme.

The 34 Players have endured stress and uncertainty arising from the

service of Show Cause Notices. EEC and Hird stand to suffer further

reputational damage if the Show Cause Notices are not set aside.

(h) The prejudice and damage to the interests of the 34 Players is

manifest (as set out in the opening submissions of the 34 Players).

That prejudice and damage sounds not only at the individual level of

the players, but also on EFC and Hird. In particular, EFC's business

interests and capacity to field a team are at risk if ASADA is permitted

to retain the fruits of its illegal investigation. Although Simonsson

assured the Players on 6 May 2013 that ASADA was "not about

wiping out a team", that is what may well happen.

(i) The prejudice to the 34 Players is exacerbated by the basis upon

which they were encouraged by ASADA to participate in the joint

investigation. There can be no suggestion that the players consented

to the joint investigation. Rather, ASADA obtained the co-operation of

the players by making representations to them on 20 February

2013201 which (and contrary to Ms Andruska's evidence) went well

beyond providing a "plain English" explanation of the ASADA

legislation and process. Rather, they were assured that ASADA would

"fully explore all avenues in an attempt to provide a no fault or

negligence defence" which would have resulted in complete

elimination of sanction. Although ASADA recanted 7 March 2013, 202

but it did not advise the players of that. McLachlan rightly pointed out

in his letter of 7 March to ASADA that the purportedly withdrawal of

201 ACB.A.02.0451. 202 ACB.02.0460.

56

the 20 February statements was baseless, and of no value because EFC and the players had already relied on the assurances to their prejudicem. Despite the matters, ASADA's senior representative, Simonsson, made a further presentation to players on 6 May 2013. 204 Indeed, Simonsson used the occasion to make further reassuring statements, including telling the players: "But honestly, I do not think you're going to have a problem". 205

104 As to the matters raised by the Respondent, the Applicants observe as follows:

(a) Contrary to ASADA's case on acquiescence, the evidence clearly

shows, and Ms Andruska conceded, that ASADA and the AFL had already agreed to engage in a joint investigation of EFC before either

Ian Robson or David Evans said anything to anyone on 5 February. Mr Robson's conversation with Ms Andruska was entirely irrelevant to

that decision, as was EFC's press conference. Supportive public statements regarding cooperation or openness are of no moment:

what else, one might rhetorically ask, was the Club to do, particularly given the AFL's undoubted compulsive powers over both it and its

employees, players and officials alike.

(b) Contrary to ASADA's case, there were a number of objections to the

legality of the joint investigation and the provision of the interim report.

As noted above, ASADA brushed off objections to the legality of its

course. Even if it might be asserted that further objections ought to have been raised, it is clear they would have fallen on deaf ears.

(c) The Court must assess what ASADA did, not what it might have done, or what it might yet do with the notices if set aside and/or it cannot

use the fruits of the illegal joint investigation.

(d) In any event, ASADA's statutory jurisdiction cannot be enlarged by

generalised statements by EFC or by Hird that they would co-operate, or by any delay in bringing proceedings.

203 ACB.A.02.0460 204 Exhibit Al. 205 Statement of Agreed Facts Exhibit E-1.

57

(e) EFC and Hird brought their proceedings to quash the show cause

notices within one day of the notices being issued.

(f) That was quite unlike the circumstances in DPP v Martin (on which

the Respondent relies). That case concerned a Supreme Court order

which was valid until set aside. Moreover, the DPP failed (for more

than 14 months) to seek review of the Supreme Court's August 2012

order, stood by while the Executive appointed a board of inquiry within

a week of the Supreme Court's order, failed to launch a challenge

when the board of inquiry rejected the DPP's attempt to limit the

inquiry in November 2012, stood by when the Executive appointed a

new board of inquiry in July 2013 and then, in late November 2013,

sought orders quashing the August 2012 order. Here, EFC and Hird

did not stand by:

(i) In June, July and August 2013, they raised with ASADA

the illegality of ASADA's actions in providing the Interim

Report to the AFL — based on the restrictions on

ASADA's power to share information.

(ii) As soon as ASADA issued show-cause notices, they

commenced these proceedings to challenge the validity

of ASADA's decision to conduct, and the conduct of, the

investigation.

That is, as soon as ASADA took a step that could be seen to have

immediate consequences that affected the interests of EFC and Hird,

they took steps, in June-August 2013, to raise the lawfulness of those

steps with ASADA and, in June 2014, to challenge the lawfulness of

those steps.

(g)

The Respondent's assertion that relief should be denied on the basis

that the actions of EFC and Hird "brought the game into disrepute by

failing to implement proper governance and accountability

mechanisms" cannot support denial of relief:

(i)

There is no evidentiary basis for that assertion in the case

of Hird;

58

(ii) Nor is there any justification in principle for denying relief

against the consequences of jurisdictional error on such a

ground: once the Court has found that ASADA acted

beyond the power granted by Parliament, the Court has

concluded that Parliament never intended that ASADA's

actions should be valid. How can the actions of EEC and

Hird be used to attribute validity (not intended by

Parliament) to those actions?

(iii) To paraphrase Isaacs J in Myers v Casey (1913) 17 CLR

90 at 123, the wrongs of which EFC and Hird complain

(an unlawful ASADA investigation and breaches of the

constraints in the legislation on disclosing information)

are independent of any misconduct by them. See also

Barton ACJ at 102. In these proceedings, the merits of

EFC's and Hird's conduct is not in issue: rather the issue

is the asserted illegality of ASADA's decision. It is not the

correctness, but the validity, of the decision to issue show

cause notices that is being contested.

105 For all these reasons, the Respondents' defences should be rejected and

relief should be granted as claimed.

13 August 2014

N. J. Young P. J. Hanks

C. G. Button N. A. T. Harrington

E. Murphy R. E. V. Walsh

Counsel for the Essendon Football Club Counsel for Hird

Maurice Blackburn Ashurst Australia

Solicitors for the Essendon Football Club Solicitors for Hird