Hird v ASADA [2015] FCAFC 7: Judicial Review Dismissed

In a judgment delivered on 30 January 2015, in the case of Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority[2015] FCAFC 7, the Full Federal Court dismissed the appeal by Mr James Hird against  an anti-doping investigation into the Essendon football club's 2012 supplements program.

Facts of the Case

A decision was made by the Chief Executive Officer (CEO) of the Australian Sports Anti-Doping Authority (ASADA) to issue notices under cl 4.07A of the National Anti-Doping Scheme (NAD Scheme) to 34 current and former players for the Essendon Football Club (Essendon).  The notices were issued by the CEO as part of an ongoing investigation by ASADA, in cooperation with the Australian Football League (AFL), into a supplements program implemented by Essendon in 2011 and 2012.  Under cl 4.07A, the notices were required to inform each of the 34 Players of a “possible non-presence anti-doping rule violation”.

Decision at First Instance

In the court's original finding last year, Justice John Middleton said ASADA complied with the rule of law in conducting its joint investigation with the AFL.

He also said at all times Essendon officials, Hird and players would have been aware that the interviews they were giving were in the presence of an ASADA representative, as well as the AFL.

Appeal By Hird

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

• conducting the investigation for improper purposes, including to take advantage of the AFL’s compulsory contractual powers;
• disclosing certain personal (NAD Scheme personal information) to the AFL during the interviews of Essendon players and personnel; and
• facilitating the abrogation of the interviewees’ common law rights against self-incrimination and exposure to civil penalties. 

Mr Hird also contended that the notices issued to the 34 Players were invalid as the evidence or information from the investigation on which the notices were based was unlawfully obtained, with the anti-doping agency unlawfully using the AFL's coercive powers in joint interviews.

Decision of the Full Federal Court

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

Justice Susan Kenny told the court there was no "practical unfairness" in the way players were interviewed, and that the AFL was within its powers to compel players to attend.

Reactions from Participants

Essendon chairman Paul Little said Hird was disappointed, but he looked forward to the coach focussing on the team's preparations for the upcoming season.

ASADA welcomed the decision, saying it backed the agency's view that joint investigations were key to upholding clean competition. Its CEO Ben McDevitt said the integrity of fair competition must be protected:

Further Proceedings

The AFL tribunal began its hearings into the players allegedly involved in the supplements program in December, and is scheduled to finish in mid-February.

Hird, who was not in court for the decision, now has 28 days to launch another appeal in the High Court and his lawyer did not rule out taking further action.

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 Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7 as published on TimeBase LawOne

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