http://www.theaustralian.com.au/sport/afl/doping-probe-at-risk-of-collapse/story-fnca0u4y-1226698786742
Doping probe at risk of collapse
by: CHIP LE GRAND
From: The Australian
August 17, 2013 12:00AM
THE Australian Sports Anti-Doping Authority's six-month investigation into the alleged systematic use of peptides at AFL club Essendon and Cronulla in the NRL is at risk of collapse if lawyers acting for James Hird succeed in challenging the legality of ASADA's decision to involve the major football codes in its search for evidence of doping.
The Weekend Australian can reveal the NRL reluctantly agreed, under pressure from ASADA, for one of its officials to be present during player interviews at Cronulla. The presence of the NRL's newly appointed integrity boss, Nick Weeks, during last week's interviews of Sharks players is modelled on the role played by AFL investigator Abraham Haddad during interviews of Essendon players and officials.
Weeks, a respected lawyer and administrator, and Haddad, a former UN investigator, bring impressive credentials to the ASADA probe.
Haddad's presence during the Essendon interviews allowed investigators under AFL rules to seize the mobile phones of Essendon officials, including Hird.
However, ASADA's decision to conduct joint investigations with the AFL and NRL into the use of peptides in their respective codes has exposed ASADA to the possibility that it is operating in breach of its own Act and the National Anti-Doping Scheme.
Hird's legal team, led by prominent human rights barrister Julian Burnside QC, this week foreshadowed the legal challenge, which will be launched once the bitter dispute between the AFL and ASADA inevitably finds its way into the Victorian Supreme Court.
Catherine Ordway, a former ASADA legal head and director responsible for intelligence-gathering, testing and investigations, said the joint investigation was a departure from normal practice. "This has been unusual where the AFL has been front and centre in this investigation," she told The Weekend Australian. "They are usually kept much more at arm's length."
Martin Hardie, an administrative law expert with Deakin University now advising Cronulla and Essendon on the complexities of anti-doping codes, said ASADA being in league with the leagues ran contrary to its statutory obligations and contradicted one of the fundamental reasons the anti-doping body was created seven years ago.
"They wanted to set up a system where a sport might refer a problem to ASADA but ASADA would run the investigation and testing process," Hardie said. "Once they had done that and decided there was a case to answer, they would send it to this Anti-Doping Rule Violation Panel. After they made their decision of a possible violation, then it gets given to the sport to do the disciplinary process.
"The whole purpose of ASADA was to keep sport out of that process. On the basis of that, it seems wildly inconsistent with the ASADA Act that they can then do a joint investigation."
ASADA was established by the Howard government, with the support of Labor, after a doping conviction against cyclist Mark French was overturned by the Court of Arbitration for Sport. At the time, the Australian Sports Drug Agency had limited investigative powers and the case against French was stymied by a lack of co-operation from cycling officials.
Howard government minister Kevin Andrews, in his second-reading speech in support of the ASADA Bill in December 2005, underlined the need for an anti-doping investigator independent from sports bodies.
"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," Andrews told the federal parliament. He went on: "In framing the proposed ASADA legislation, the issue of safeguarding athletes' rights was a prime consideration.
"Accordingly, the ASADA Bill attaches strict conditions to the receipt and disclosure of sensitive information from Customs, the Australian Federal Police and other law enforcement bodies. For example, disclosure must not contravene the terms of Customs' initial disclosure to ASADA, and sports in receipt of such information must give an undertaking that any use of the information on its part must be for anti-doping purposes and will not occur in a way prejudicial to the subject of the information."
Hird's primary case against ASADA -- and by extension the potentially career-threatening AFL charge against him of conduct unbecoming or prejudicial to the interests of the AFL -- hinges on whether ASADA broke its own act by including the AFL as an investigative partner and whether its 400-page interim report, which forms the basis of the charges against him, contravenes the confidentiality provisions of the National Anti-Doping Scheme.
On Tuesday this week, the day the charges against Hird were announced, his lawyers wrote to ASADA questioning the validity of the interim report and seeking an explanation of how ASADA was permitted to disclose to the AFL confidential information about Essendon players and staff gathered as part of an anti-doping investigation. The letter went on to pointedly question why ASADA's disclosure of the report did not breach a section of the ASADA Act that sets out its confidentiality provisions.
A breach of these provisions, either by ASADA officials or the AFL officials who received the information, attracts a penalty of up to two years' jail.
The entire case against Essendon, Hird, his senior assistant coach Mark Thompson, football manager Danny Corcoran and club doctor Bruce Reid is currently being stored electronically in an AFL "data room" accessible from inside AFL House or by remote password. This includes the ASADA interim report and 14,000 attached documents, Ziggy Switkowski's damning report on Essendon's management of the supplement regime, full transcripts of 130 interviews conducted by ASADA, and the relevant AFL rules, regulations and codes.
Missing from the data room is documentation -- if it exists -- that sets out the terms and nature of the joint ASADA/AFL investigation and how it confirms with the statutory obligations of the anti-doping authority.
If Hird succeeds in his legal challenge against ASADA, all material other than the Switkowski report would be inadmissible as evidence.
In recent days the AFL has indicated it could substantiate the charges against Essendon and its officials based on Haddad's own summation of the witness interviews and the Switkowksi club-commissioned report, rather than relying on the ASADA interim report. This sits at odds with AFL chief executive Andrew Demetriou's public comments confirming he and all AFL commissioners have already read the ASADA report. The AFL also made clear that Andrew Dillon, the league's general counsel, would base his decision on whether to lay charges on his assessment of the ASADA report.
With both sides of politics absorbed in the election campaign, ASADA's handling of its investigation into Essendon and Cronulla has attracted little comment from Canberra. Whatever the result of the election, the incoming sports minister will want assurances that ASADA has not compromised its independence or damaged its standing by linking arms with the AFL, and now the NRL, on its pursuit of peptides.
Where ASADA is meant to conduct its affairs with strict confidentiality, its investigation of Essendon has leaked like a faulty burette. As Hardie said: "Information is not being kept confidential. Whoever is leaking this, whether it is the AFL or the cops or ASADA, is subject to two years' jail."
The AFL this week confirmed that on the evidence gathered by ASADA, no Essendon player has an anti-doping case to answer. Now for the case against ASADA.
