The full Australian Federal Court heard that the Australian Football League (AFL) would have been regarded as a "patsy" if it had not assumed a critical role in the Essendon supplements investigation.
The appeal of James Hird, former Essendon coach, against the Federal Court finding concluded at lunch time after final submissions were acting by Tom Howe, QC, acting for the Australian Sports Anti-Doping Authority, and Peter Hanks, QC, acting for Hird, Before judges Susan Kenny, Tony Besanko and Richard White.
The Hird camp has argued that the Australian Sports Anti-Doping Authority (ASADA) should not have conducted a joint investigation with AFL as it is an independent body. Hird argues the investigation was unlawful because of the joint efforts. Peter Hanks argued that the Australian Sports Anti-Doping Authority had illegally required power of the Australian Football League to compel players and coaches through their contractual obligations to answer questions raised by ASADA. It was also argued by Hird that the joint investigation was also illegal as it was conducted for potential governance breaches, which fall in the range of purposes other than an anti-doping probe.
Tom Howe replied by saying that ASADA could still have demanded that the AFL plays a role should the league have opted out after it initially relayed concerns of an anti-doping breach to ASADA. Howe added the CEO of ASADA would have gone back to the AFL and said that you are subjected to enforce your own anti-doping policy and you have given yourself the authority and you are choosing to sit idly by like a patsy when you have the powers to obligate players to answer questions. The AFL had been "obliged" to enforce its own anti-doping policy, said Howe and remarked the National Anti-Doping scheme had required the two bodies to work closely. ASADA barrister Tom Howe also told the Federal Court that the lock-step co-operation with the AFL was a conscious and legal decision. He remarked it obtained that benefit or advantage and it did so advertently. Howe acknowledged that the Australian Sports Anti-Doping Authority had no coercive powers of its own but the National Anti-Doping (NAD) scheme envisaged the two bodies working together. Howe went on to remark that ASADA would be toothless if it could not reap the benefit of the AFL's coercive powers.
Hird's barrister Peter Hanks argued that the investigation was designed by ASADA to suit its own purposes and the anti-doping body led the questioning by illegally harnessing the coercive powers of the AFL. He remarked ASADA had no power to bring the AFL into the investigation and into the interview room and added it did so to override its own lack of power.
Howe concluded his address to the court by emphasizing on the fact that James Hird was not supported by his club or his players in his appeal of Justice Middleton's ruling. Howe added they have made it clear that they want to contest the suspected doping rule violations on their merits.
In September, Justice John Middleton ruled that ASADA and the AFL acted lawfully. The Australian Sports Anti-Doping Authority reissued doping allegations to 34 current and past Essendon players after that finding.
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