This is a guest post from Martin Hardie, a lecturer in law at Deakin University at Geelong.
It was first posted at the Deakin University “Deakin Speaking” site.
Last week the media was awash with reports and details of the show cause letter received by the sports scientist Stephen Dank. The resultant commentary quickly regressed into a continuation of the ill-informed and unsubstantiated speculation as to what happened in 2012 at the Essendon Football Club accompanied by naive cries for the truth to be exposed now and once and for all.
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To be clear, since the middle of 2013, I have written and spoken about the fact that from the evidence I have seen and the research I have undertaken I do not believe that the Essendon players were administered substances prohibited by the World Anti-Doping Code.
I have also said that what is clear is that the statutory regime established by the Commonwealth Government clearly establishes a regime whereby anti-doping cases are investigated, prosecuted and heard in private. I’ll add to that the fact that I was retained by the Essendon Football Club to give some advice on the status of the peptide AOD-9604 and the law surrounding ‘bringing the game into disrepute’.
On top of that I’ll add that I decided not to accept any further work with the Club because I did not believe they were acting fairly and properly with the members of their own Football Department. Since that time I have continued to be a close and interested researcher.
Australian law requires that information or opinion, whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from that information or opinion, is legally confidential information.
Thus it may not be divulged by either ASADA or third parties prior to that individual being found to have committed a violation after a hearing or by their own ‘guilty plea’. In simple terms, everything we have read in the media about what players, what James Hird, any other member of the Essendon or Cronulla football departments, or for that matter what Stephen Dank did, is confidential information, protected by Commonwealth law until any cases that might be brought against them are finally determined.
Pursuant to Commonwealth law whoever it is that is the source of the salacious headlines detailing the – substance is too strong a word – vague and prejudicial assertions made in the media, is liable to two years jail. Equally liable to jail are any third parties who have received the information knowing or ought reasonably to have known that their source was subject to the obligation of confidence established by the ASADA Act.
A couple of weeks ago in an attempt to undermine The Age’s new Sunday format and on the back of Mark Robinson’s make up with the outgoing CEO of the AFL Andrew Demetriou, the Herald Sun published details and the names of Essendon players from the so called ASADA Interim Report. Sources with many years experience in sport and business have been told by Robinson that he was under orders to make up with Demetriou from his editor.
Former ASADA CEO Richard Ings said “disclosure of individual player names, sourced from the ASADA interim report is an egregious breach of NAD Scheme confidentiality.”
Ings is correct and the severity of the breach is no different in the case of material relating to James Hird or Stephen Dank. For myself I have said publicly and in private to WADA since the middle of last year that my great fear was that the manner in which ASADA was handling the Essendon case and the manner in which it was leaking had the potential to set anti-doping in Australia back ten years. Even Ings has asked recently why would anyone now confide in ASADA given their inability to comply with the privacy provisions of their own legislation?
On March 14 2014 The Age ran a piece by Samantha Lane that quoted former WADA President John Fahey. Mr Fahey has been one of the chief institutional cheerleaders for ASADA over the last year. He was reported in the press on a number of occasions last year as stating that it was “only a matter of time” before Essendon players received infraction notices for doping offences.
Given the position he held until December 2013 Mr Fahey’s opinion carries significant weight. However, he subsequently admitted to The Australian’s Chip le Grand that he had not read the ‘interim report’ and that he had not been briefed on the strength of the evidence against Essendon.
Following that admission I wrote to both Mr Fahey and the WADA Director General Mr David Howman stating that I felt that Mr Fahey had been reckless and irresponsible in the manner that Mr Fahey had been beating the drum over Essendon.
To be clear, when Mr Fahey was President of WADA he may have been entitled to receive briefings from Mr Howman, who would in turn have been briefed either directly by ASADA or his own staff.
Mr Fahey no longer stands in that privileged position. But to my dismay, last Friday March 14 2014, Fahey was at it again telling Samantha Lane of The Age that “he believed there was now ‘sufficient information’ for infraction notices to be issued ‘against a number of people’ over their involvement in the side’s 2011-12 supplements program.” On what does Mr Fahey now base that belief?
Is the belief he now has based upon the same material that his earlier assertions were based upon? If they were it would be the same belief and he would not need to use the adverb ‘now’.
Previously Mr Fahey was making his statements based upon press reports, which were based, of course, upon leaked and prejudicial material from the ‘interim report’. One would hope that he learnt a lesson back in December and that he would in the future not be so reckless as to try and beat the drum without proper briefings. Or is it the fact that this time, that is now, Mr Fahey has done his homework? But this raises an even uglier question.
The question that needs to be asked is what has changed since Mr Fahey’s retirement from WADA, given that we know his prior statements were not based upon credible information such as briefings?
How and what information has he now received? Previously Mr Fahey told Chip Le Grand “I have no knowledge … Nor do I want it. I have had some general discussions at different stages over the past year with different personnel, none of which have had any detail in it. I steadfastly refuse to accept detail.”
Despite not wanting to get into detail Mr Fahey was happy to tell Samantha Lane that he had “absolutely no doubt” that the peptide AOD-9604 is a banned substance despite it being a highly technical question with contradicting stances being taken by the Australian Crime Commission, ASADA and WADA (a question which I have analysed elsewhere).
In the same article that quoted Mr Fahey it is reported that WADA Director-General Mr Howman had expressed a vote of confidence in the ASADA.
Unlike Mr Fahey’s proven track record in this matter, Mr Howman is known for his measured tone, his words always need to be read and considered carefully and in their context. Mr Howman chose his words carefully stating that the ASADA investigations “appeared ‘‘pursuant’’ to the WADA Code”. He said nothing of their compliance with the Commonwealth law that governs the powers of ASADA, which is a very different thing.
Mr Howman is well aware of the views that Richard Ings and I have expressed over the ASADA handling of the Essendon case and in particular the breaches of the ASADA Act’s privacy provisions. He is well aware that such breaches carry significant criminal penalties. Whether ASADA is complying with Commonwealth law is a matter for the Commonwealth and not WADA.
Back to Mr Fahey, if he has now received information or opinion concerning the status of the cases against Essendon players, football department members or Stephen Dank and if this is what has now shored up his belief, the only manner in which he could have received such information is by an unlawful and in fact criminal breach of Commonwealth law. We can hope then that he is just talking out of his hat and that he has no information upon which to now base his belief.
To conclude there is one interesting comment included in Mr Fahey’s recent statements. This concerns his view that some sports, by inference Olympic Sports, are committed to anti-doping whilst others, again by inference non-Olympic sports, are not. If only the world was so black and white. But that of course is another matter. Mr Fahey told Samantha Lane “there were sporting bodies all over the world paying ‘lip service’ to anti-doping … They will do as little as they have to be seen as compliant and having the program, but they’re not effective.”
Given the long history and face offs between the Commonwealth Government, ASADA and the AFL since 2005 in order to bring that sport within the WADA system, we could infer that Mr Fahey is reflecting upon the confused and complicated status of the AFL as a WADA Code compliant sport.
The recreational drugs policy of the AFL clearly stands outside of the WADA system. If the real game at stake is to bring the AFL fully within the WADA system it might serve anti-doping better, and the lives of many young men, if WADA and ASADA focused upon that.
The bloody-minded focus upon a possible assertion of a possible anti-doping case against Essendon players, staff or even Stephen Dank, may well be found to be lacking if and when it comes to be tested in the proper forum and at the proper standard of proof.
For a long time I have thought that the case against Hird and Co is more about keeping ASADA out of the AFL than it is about anti-doping violations. Hence the AFL’s ability to extract an ‘interim-report’ at its behest and for what I regard as an improper, that is, not an anti-doping purpose.
Hence the private statements of one AFL Commissioner in February 2013 that whatever the outcome of the ASADA investigation, one thing was for sure, that they would seek to ensure that ASADA doesn’t test or interfere in the sport again.
In the light of this and the Samantha Lane article (of 15 February 2014) that ASADA was too expensive for the AFL (a proposal that included giving Brett Clothier the job of deciding what was suspicious and what was not) the mantra of ‘protecting the players ‘ (even if it meant sacrificing the Football Department) might well just as be read as meaning get and keep ASADA out of the AFL.
The AFL, with twice as many more spin-doctors than Scott Morrison and the Department of Immigration, believed in its own ability to manage and finesse the situation. But it seems that both they and ASADA have lost control of the plot and only now act and react in crisis.
Rather than beating the drum about possible violations that face substantial barriers to their successful prosecution, the Commonwealth Government, Mr Fahey and WADA should focus upon the damage being done to the Australian anti-doping system and putting into place measures that ensure ASADA and the AFL’s full compliance with the ASADA Act and the WADA Code both now and in the future.
The problem here is not Essendon, James Hird or even Stephen Dank. And now is the time for the Government and WADA to direct their attention to the real villains in this case.