Anti doping and sporting organisations cannot do ‘whatever it takes’ to secure an anti doping conviction – they like all other organisations and persons are bound to act within the law.

Deakin University law lecturer Martin Hardie looks at the Australian Sports Anti-Doping Agency (ASADA) and Australian Football League (AFL) joint investigation and recent developments.

The question of the joint investigation’s consistency with existing Australian legislation that governs the powers and activities of ASADA is the key issue for consideration in the case filed by Essendon and James Hird in the Federal Court last Friday.

As far back as 1995 in the case of USA Shooting & Q./ International Shooting Union, the CAS stated that “The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule appliers must begin by being strict with themselves.”

Put simply anti doping and sporting organisations cannot do ‘whatever it takes’ to secure an anti doping conviction – they like all other organisations and persons are bound to act within the law.

The legislative reforms that saw the formation of ASADA in the mid 2000’s were made against the backdrop of the 2004 Anderson Enquiry into allegations of doping within the Australian Institute of Sport’s Track cycling program and the manner in which that sport’s governing body had handled the matter.

At the conclusion of the Second Stage Report, Anderson made the following recommendation:

I am however strongly of the view that there should be a body which is quite independent of AIS and of the Australian Sports Commission and of the sporting bodies themselves with the power and duty to investigate suspected infractions such as substance abuse and to carry the prosecution of persons against whom evidence is obtained. There are a number of reasons why these functions should be performed by an arms length body separately from and independently of the sporting bodies … .

A subsequent discussion paper released by the Department of Communications, Information Technology and the Arts in late 2004 also acknowledged “the need for an independent and transparent process to investigate doping in sport”. The deficiencies of the “sport runs sport” model were conceded. It was these considerations that ultimately led to the reforms resulting in the creation of ASADA.

Anderson’s recommendations were seized upon by Parliament when it passed the Australian Sports Anti-Doping Authority Bill 2005.

In the course of the Second Reading Speech for Minister Kevin Andrews stated:

The establishment of ASADA will mean that sports, athletes and the public can have complete confidence that doping allegations will be investigated and pursued in an independent, robust and transparent way.

Minister Andrews views were mirrored by opposition members of Parliament, including Senator Kate Lundy, who was later Minister for Sport at the time of the ASADA –AFL joint investigation.

In her Second Reading Speech Lundy in fact derided the “so-called independent investigation of the incident” by Cycling Australia.

Moving from the macro to the micro level of analysis an examination of the ASADA Act and Regulations make it clear that the concept of a joint investigation is alien to the Australian anti doping context. Not only is it an alien concept, it is highly likely that if any court was to examine the arrangements under which the investigation took place they would find it was unlawful and invalid.

To understand this we need to start with what the ASADA Act terms National Anti Doping (NAD) Scheme Personal Information.

By virtue of Australian law NAD Scheme Personal Information is confidential information and its unauthorised disclosure is a criminal offence that carries a penalty of two years imprisonment. Australian law requires that anti doping information or opinion, whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from that information or opinion, is legally confidential information.

What is clear is that the statutory regime established by the Commonwealth Government is a regime whereby anti-doping cases are investigated, prosecuted and heard in private. Neither ASADA nor third parties to whom disclosure is authorised by the ASADA Act prior to that individual being found to have committed a violation, after a hearing or by their own ‘guilty plea’, can publicly divulge NAD Scheme Personal Information.

To grasp the purported legal basis of the joint investigation we need to understand that the ASADA Act and Regulations do make it possible to share information in certain circumstances, but these circumstances are clearly set out in the Schedule to the ASADA Regulations known as the NAD Scheme. Section 13(f) of the ASADA Act authorises the CEO of ASADA to investigate possible violations of the anti-doping rules.

Section 13(g) of the Act authorises the CEO to disclose information for the purposes of, or in connection with, the administration of the NAD Scheme. The only possible authorised power of disclosure that the CEO possesses prior to ASADA’s Anti Doping Rule Violation Panel (ADRVP) making a finding that there is a possible anti doping rule violation[9] is the power contained in Clause 4.21 of the NAD Scheme.

Disclosure by the CEO under Clause 4.21 cannot conceivably include the notion of a joint investigation. By conducting a joint investigation whereby a sporting organisation is included in, amongst other things the process of interviewing athletes or support persons, the CEO of ASADA has both misconstrued the nature of their power and failed to exercise the important discretion given to them by Parliament to ensure that anti doping investigations are conducted in an independent and credible manner.

To quote the Minister’s Second Reading Speech such an investigation would not be “robust and transparent”. Or in the words of Senator Lundy, who as Minister oversaw the operation of the joint investigation it would constitute a “so-called independent investigation”.

Such an investigation would be flawed because the CEO of ASADA had failed to do what the High Court of Australia describes as a jurisdictional error. They have failed to ask themselves the correct questions as required by the legislation – here the CEO of ASADA has asked herself the wrong question.

A jurisdictional error leads to the complete process being found to be invalid and unlawful. At no time prior to the disclosures that constitute the joint investigation did the CEO exercise the necessary discretion in order to be properly satisfied in law that the disclosures were for the purposes required by the NAD Scheme.

Last weekend, following the commencement of the Federal Court action to have the investigation declared in valid the new CEO of ASADA Ben McDevitt either doesn’t understand how the anti doping regime works or is deliberately obfuscating.

On Friday 13th June The Age reported that McDevitt:

… said legislation allowed for the anti-doping body and sports bodies, in this case the AFL, to work together. “Let’s have a think about this. ASADA could not possibly do this job on its own. It’s got to be done in cooperation with the codes,” he said on Saturday. “The codes have integrity units. ASADA has the role about administration and oversight. We need to be able to work together.”

What is clear is that the ASADA Act sets out is a regime for anti doping investigations to be conducted independently of sporting organisations .

The current legal situation is acknowledged by the AFL in its own Anti Doping Code. In Clause 4 the AFL recognises ASADA’s charter to conduct its own investigations.

That Clause states that ASADA will (or better may) provide regular reports to the AFL on ASADA’s conduct of its anti doping functions subject to ASADA’s enabling legislation and that ASADA will perform and conduct anti doping functions and powers in accordance with the AFL Anti Doping Code in so far as it does not conflict with ASADA Act and the NAD Scheme.

In flouting these provisions and those of the ASADA Act both the AFL and ASADA have conducted an investigation that manifests all the problems identified by the Anderson Enquiry – poor investigation skills, conflicts of interest and lack of legal capacity.

Furthermore, ASADA have acted in a manner that is clearly contrary to the manner in which Parliament intended they would act.

ASADA has — and McDevitt continues — to ignore the manner in which the Code is implemented in Australia by Parliament. They ignore the existing lack of legal basis for the joint investigation.

Clearly sports and ASADA can work together to settle a proper interpretation and implementation of the ASADA Act.

All that was required in the this case was for ASADA to identify the information that it was not able to obtain itself and request that the AFL obtain that information using the powers available to it under the AFL Regulations and Player Rules.

Just because a party is able to furnish information does not mean that the party should assume the role of joint investigator.

You can read more on these issues at The Northern Myth by following the links here.

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