Federal Court of Australia
District Registry: Victoria
Division: General
No VID 569 of 2014
On appeal from the Federal Court
JAMES ALBERT HIRD
Appellant
CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY
Respondent
Appellant’s Response to Respondent’s Submissions on Notice of Contention
Filed on behalf of
The Appellant, James Albert Hird
Prepared by
Steven Amendola
Law firm
Ashurst Australia
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1
Introduction
1.
As a general observation, the Respondent’s submissions on the Notice of Contention
(the Contention Submissions) draw too closely on analogies with the conduct and
determination of litigation. To borrow from that universe of discourse provides little
assistance in the context of administrative decision-making.1
2.
On the question of relief, the question is not whether material gathered by illegal
means is “admissible”, as the Respondent suggests in paragraphs 2-6 of the
Contention Submissions; it is whether the Respondent may continue to rely on the
material once that part of its investigation is nullified for illegality.
3.
Clause 4.07A(1)(b) of the current Scheme requires the Respondent to review
“evidence or information” that he receives and determine if there is a possible nonpresence anti-doping rule violation that warrants action. The evidence in this case
includes material arising from the interviews with the Appellant and 34 players
(among others) – interviews that were conducted (it should be assumed for the
purpose of the Notice of Contention) unlawfully.
Leaving enforcement to “down-stream” decision-makers
4.
5.
The Respondent submits in paragraphs 8 and 9 of the Contention Submissions that
the Court should refuse relief so as to avoid frustrating the powers of “down-stream”
decision-makers. Such a course would be wrong:
4.1
The action that is challenged has been taken, and the decision that is
challenged has been made, by the Respondent. The jurisdiction of this Court
has been properly invoked. If unlawful or ultra vires conduct has been
established, it is for this Court to control the unlawful behaviour and enforce
the limits of the power. It is not a task to be deferred for another decisionmaker.
4.2
Further, the ADRVP’s power does not extend to ruling on the admissibility of
evidence on which the investigator has relied. That is not the ADRVP’s
statutory function; nor does the ADRVP have a power to determine to reject
material that was obtained illegally. The ADVRP’s power is limited to
considering any submissions put by the participant and determining whether
to make an entry on the Register of Findings: see NAD Scheme, cll 4.07A(3)(d)
and 4.09(2).
If the material on which the Respondent relied in issuing the notices under cl 4.07A(2)
was obtained unlawfully (through action that was ultra vires the ASADA Act and the
Scheme), that part of the investigation is a nullity; it has produced no evidence or
information; and it is as if the material was not received.
Can unlawfully-obtained evidence be recycled by the AFL?
6.
1
The Respondent appears to assert in paragraph 11 of the Contention Submissions
that, even if he obtained the evidence or information illegally, he has “parked” the
material with the AFL, a third party. He suggests that he may now simply request the
AFL to deliver up the unlawfully obtained information. That submission is
misconceived. The information in the possession of the AFL is the product of an
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282.3-282.7
(Brennan CJ, Toohey, McHugh and Gummow JJ, referring specifically to civil litigation).
2
unlawful act. It is tainted by that illegality and that taint has not been removed by its
delivery to a third party. The Respondent must reacquire the information lawfully – by
using his powers under the Act and the Scheme in a lawful manner.2
7.
Further, the Respondent assumes that the AFL would be (a) willing or (b) obliged to
hand over the information.
7.1
It is mere speculation to assume that the AFL, after a finding of unlawful
activity on the Respondent’s part, would continue to cooperate with the
Respondent in that way, or would regard itself as obliged to hand over
unlawfully obtained information.
7.2
Indeed, the AFL is not obliged by the Scheme to hand over to ASADA material
unlawfully obtained in the circumstances of this case: the obligation imposed
by cl 2.04(f) and (j) of the Scheme does not extend to information unlawfully
obtained by ASADA and delivered to an SAB (the AFL) for its own purposes.
8.
The investigation must (despite the Respondent’s resistance) start over and be carried
out according to law. The analogy is with a Court declaring a search warrant invalid
and requiring the investigating authority to act lawfully if it wishes to re-issue the
warrant. The Respondent (and ASADA) must start again and investigate according to
law. Further, there is no basis for suggesting that the AFL and the interviewees would
respond in the same way today. There would be no joint investigation. There would
only be an ASADA investigation.
9.
Although decision-makers are not bound by the rules of evidence, those do provide
useful guidance when evaluating evidence. The considerations of fairness and
reliability, on which the rules are based, are also relevant in administrative fact
finding.3
9.1
The common law and statute recognise a series of factors that must be
balanced when determining the admissibility of illegally obtained evidence.
The weight to be given to each factor depends on the circumstances of the
case.
9.2
One of the factors to be considered is deterrence of future illegality:
“exclusion of the evidence may be appropriate to both uphold the judicial
integrity principle and to deter such conduct in the future. If such unlawful
conduct is tolerated by those in higher authority, then the case for exclusion
will be stronger.”4
9.3
In this instance, the Respondent has indicated in paragraph 11 of the
Contention Submissions that he not only tolerates the illegal conduct but will
positively support it and to continue to rely on its fruits. The Court should not
condone that attitude: a regulator that is found to have acted outside its
2
As a result of amendments to Act and the Scheme that took effect on 1 August 2013, the Respondent
is now authorised to “require” a person to attend an interview to answer questions, give information
and produce documents, but the individual’s privilege against self-incrimination or exposure to
penalty is expressly preserved: ss 13A, 13C, 13D of the Act; cl 3.26B of the Scheme.
3
Administrative Review Council, Best Practice Guide No 3 – Evidence Facts and Findings (2007).
4
R v Versac [2013] QSC 46 at [7], citing Barwick CJ in The Queen v Ireland (1970) 126 CLR 321:
“Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.” See
also The Chief Examiner v Mary Brown [2013] VSCA 167 at [5]-[6].
3
statutory powers in collecting evidence or information cannot be permitted to
evade the consequences of that finding.
10.
The obligation of the AFL under cl 4.6 of the AFL Code, referred to by the Judge at
AB-A/5, 19, [62], was an obligation to “provide ASADA with all information pertaining
to the possible Anti Doping Rule Violation”, of which the AFL has become aware.5 It
was not, as paragraph 12 of the Contention Submissions suggests, an obligation to
provide ASADA with information unlawfully obtained by ASADA and delivered by
ASADA to the AFL for the AFL’s purposes.
11.
For that reason, the suggestion in paragraph 13 of the Contention Submissions that
injunctive relief would confound performance of the AFL’s legal obligations under the
Scheme is mistaken: the Scheme does not oblige the AFL to recycle, cleansed of the
taint of illegality, information unlawfully obtained by ASADA and currently in the AFL’s
possession.
Delay and acquiescence
12.
There was no delay, as the Respondent contends in paragraphs 14 and 15 of the
Contention Submissions. The Appellant filed his proceeding the day after the notices
were issued by the Respondent. Until the Respondent issued the notices, there was
no need to agitate the legality of the investigation: AB-A/5, pp 120-121, [481] and
[482].
13.
None of the matters raised by the Respondent on acquiescence establishes why the
public policy in favour of upholding the law should be displaced: AB-A/5, p 121, [483].
14.
13.1
Importantly, the agreement by the Appellant to settle with the AFL (raised in
paragraph 14.e of the Contention Submissions) is wholly irrelevant to the
legality of the Respondent’s actions, particularly if (as the Respondent
contends) the AFL ran its own investigation. That agreement was entered into
10 months before ASADA issued the notices under cl 4.07A
13.2
The Appellant and others expressed misgivings about the nature of the
Respondent’s investigation, but were informed by both ASADA and the AFL
that they were compelled to cooperate by virtue of the AFL Code: see AB-A/5,
p 31, [129], p 34, [140]-[141], pp 35-36, [151]-[158].
Despite the complaint in paragraph 15.d of the Contention Submissions that its
(unlawful) investigation was permitted to proceed for “an extremely long period of
time”, the fact is (as the Judge found) that “ASADA itself continued with the
investigation knowing of some legal uncertainty [and] ASADA had the ultimate
responsibility to act within the law and administer the Act and the NAD Scheme”: ABA/5, p 121, [483].
The public interest against relief
15.
5
There is no evidentiary basis for asserting, as the Respondent does at paragraph 15.h
of the Contention Submissions, that the public interest militates against permanent
injunctive relief. The attempt to balance against the unlawful character of the process
adopted by ASADA what are said to be the “rule of law implications … of a substantive
kind” is essentially an assertion that the end will justify the means – the very
AB-B/30.478, p 9.
4
antithesis of the concept of the rule of law. That is the attitude against which both
Isaacs J and Harper JA warned.6
The attitude of other parties
16.
The correspondence exhibited to the Rawson affidavit does not suggest that the
players’ group plans to acquiesce in the Respondent’s reliance on information
gathered unlawfully in the investigation. It is more suggestive of an intention to
challenge that reliance.
16.1
First, 32 of the 34 players have simply called for the process to be expedited.
That is understandable, some 19 months after the interviews commenced.
The Respondent was dilatory in issuing the original notices without any clear
explanation. There is no evidence of the players’ attitude to the continued
reliance on the material obtained unlawfully in the investigation. Importantly,
expedition and resolution of the process would allow the affected players to
apply to the AAT in the event that the ADRVP decided to make an entry on the
Register of Findings.
16.2
Secondly, 32 of the players called for the process to be handed over to the AFL
if the ADVRP could not make a prompt decision.
16.3
Thirdly, there is no evidence of the attitude of the remaining two players not
represented by the players’ group.
Nor is there any evidence that the AFL wishes to acquiesce in the Respondent’s
reliance on information gathered unlawfully in the investigation.
17.
In any event, there is no public interest that outweighs the Appellant’s entitlement to
relief from a decision founded on illegally obtained information, in circumstances
where the unlawful actions of ASADA7 are actively supported by its CEO.
Conclusion
18.
To refuse relief to the Appellant in this case would be to allow the Respondent to rob
the Court’s conclusion, as to the lawfulness of ASADA’s actions, of its utility. If the
Respondent re-uses the information gathered through ASADA’s unlawful conduct (as
the Respondent has indicated he intends to do), that would lead to further unlawful,
ultra vires conduct.
19.
The nature of the illegality cannot be ignored.
19.1
It resulted from a deliberate strategic decision, made with the objective of
harnessing powers that ASADA knew it lacked and overriding individual rights
that ASADA knew it ought to respect.
19.2
The conduct continued despite doubts about its lawfulness and in the
knowledge of the potential risks, and despite objections by external parties.
19.3
The conduct resulted in highly confidential material being released contrary to
the Act and the Scheme.
6
Australian Boot Trade Employees' Federation v Whybrow & Co (1910) 11 CLR 311 at 338 (Isaacs J); The
Chief Examiner v Mary Brown [2013] VSCA 167 at [2]-[3] and [6] (Harper JA).
7
For the purposes of the Notice of Contention, those actions are assumed to have been unlawful.
5
19.4
The conduct caused substantial (and on-going) prejudice to the Appellant, the
34 players and many others caught up in the process.
Peter Hanks QC
5 November 2014
Nicholas Harrington
Rachel Walsh