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 Tel (03) 9679 3000 Fax (03) 9679 3111 Email steven.amendola@ashurst.com Address for service (include state and postcode) Level 26, 181 William Street, Melbourne, Victoria 3000 DX388 Melbourne
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. 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). 5. 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. 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 1 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 3 4 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. Administrative Review Council, Best Practice Guide No 3 Evidence Facts and Findings (2007). 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]. 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]. 14. 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 : AB- A/5, p 121, [483]. The public interest against relief 15. 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 5 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 ASADA 7 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 7 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). 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 Nicholas Harrington Rachel Walsh 5 November 2014