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Day 1 Twitter Summary
ASADA Submissions
Chris Kaias @ChrisKaias · 5h
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Chris Kaias @ChrisKaias · 14h 14 hours ago
I've arrived at court for the #Hird appeal, many tweets to follow. We start at 10:15am - There's about 8 Essendon fans waiting out front of the court building in footy colours
- James and Tania Hird have arrived in the courtroom
- The 8 Essendon fans in colours have arrived in the courtroom (along with 1 person in a Bulldogs jumper?).
- Judges have arrived, court now in session
- Hanks (for Hird) is seeking to amend the notice of appeal. Something was "sabotaged by Microsoft". Granted
- Kenny now asking Hanks whether he wants to make anything unredacted confidential. Hanks said they will discuss with ASADA later
- Discussing now parts of an affidavit that ASADA is seeking to rely on. Hanks objects to parts of it.
- Star (from ASADA) says deletions will be made from affidavit. About words "issued further notices". This is the part Hanks objected to
- The affidavit in question is one by one of the ASADA lawyers, I believe
- Court agrees to waive the 21 days requirement for relying on the affidavit, parties agree
- Star from ASADA is saying that the parts of submissions that talk about further notices being issued can be deleted
- Kenny asking Hanks if he thinks he can finish today or requires tomorrow (please, no)
- Hanks said he should finish his part by lunch, he hopes
- Hanks (for Hird) has started his opening submissions
Chris Kaias @ChrisKaias - Hanks: focus of challenge is on ASADAs power and limits on its power, analysis has to start with the legislation
- Hanks: Parliament granted an investigative function with no power of compulsion. Relies on Anthony Lagoon case. Outlining that case now.
- Hanks: That case is a critical part of the structure of this case - a power of investigation plainly given in Act, ASADA could ask questions
- Hanks: Certainly no power however to demand answers or produce documents
- Hanks: authority is not allowed to supplement or enlarge it's powers to make its course easier and more efficient
- Kenny asks isn't difficult you face that ASADA didn't exercise the powers, two organisations conducted separate investigations?
- Hanks says we will deal with this later
- Hanks: 2.04 of Scheme, Sporting Admin Body Rules discussed now. AFL have to "refer" all instances of possible violation to ASADA
- Hanks: AFLs antidoping code recognises authority of ASADA to investigate. Besanko J points to other clauses that point to AFLs power to inv
- Hanks says but when a possible violation is found then AFL must refer. Besanko asks do AFLs powers cease then? Hanks: difficult question
- Kenny asks what happens if player is caught red handed, would AFL just tell ASADA and nothing more?
- Hanks: AFL would refer that info to ASADA
- Besanko: what do you make of provision that requires AFL enforce code? Hanks: to monitor conduct, imposition of sanctions, those things
- Hanks: SAB Rules are rules included in regulations, they are not the rules made by a Sporting Administration Body themselves
- Hanks believes that ASADA misconstrues this point
- Hanks: now discussing disclosure of information provisions
- White J asks if any significance in use of the past tense "obtained" personal information? Hanks: assumes a sequence of events
- Hanks: entrusted person provision was designed not to include sporting administration bodies. How can ASADA investigate with them?
- Hanks: participants not being entrusted persons would not be subject to s 71 constraint. Indication that investigation was to be independent
- White asks what's the logical connection between what you just said? Hanks: NAD Scheme protects info, info like those found in investigation
- White asks how s 71(1) works with people speaking at media interview when there might be ASADA investigator present?
- Hanks says you must be assuming that ASADA were part of the media interview
- White not satisfied by answer, rephrases, what if player disclosed at media interview with ASADA listening? Hanks: no disclosure under s 71
- Hanks said in that scenario fine to use info, there is no coercion involved
- Kenny asks if he's assisted by exceptions in s 71(2), which says can disclose if consent? Hanks asks consent as to what though?
- Hanks said that if already in the public domain then there is no disclosure
- Hanks now back to ASADA's 'confusion'.about the concept of Sporting Administration Body rules
- Hanks: ASADAs submission assumed SAB rules encompasses AFL Code but that's not right, only rules in the NAD Scheme
- Hanks: the AFL Code merely discharges the duty required by the SAB rules, to have in place rules
- Hanks: parts in legislation which talk about who assist CEO and who CEO can delegate to doesn't include sporting administration bodies
- White asks if assuming a particular meaning of word "assisted"? Hanks says yes, to assist functions, inc investigative function
- Besanko asks what role of AFL is, if AFL referred to ASADA and ASADA said busy, and AFL inv governance in meantime, lawful? Hanks: yes
- Hanks says that's a very long way from what happened though
- Besanko: if you say that's lawful, do you agree AFL could have continued? Hanks: as long as into governance and not ADRV issue
- Besanko: but governance issues may overlap, may involve asking same questions. Hanks: will assume that yes
- Hanks: telling passage in primary judgment (264), Middleton quoted Lacey case, referring to principle of legality (too much for 140 char)
- Principle of legality is the idea that parliament doesn't intend to interfere with fundamental rights unless they make it expressly clear
- Hanks is tying this back to a presumption that parliament has not intended to interfere with common law right against self incrimination
- One of the Essendon fans' phones just went off. Actually didn't happen once during the initial trial surprisingly
- Besanko says we aren't really dealing with ambiguity here where principle of legality arises are we?
- Hanks says is a power of investigation but investigator can't circumvent the denial of power
- Kenny: you say Parl made specific decision that body couldn't have coercive power and they can't do it indirectly?
- Hanks agrees and jokes he wishes he could put it so concisely and persuasively
- Hanks now addressing "necessary or convenient" point. Suggests ASADA can't just use this to expand its authority to use AFLs coercive powers
- Kenny: you're saying it wasn't open to the CEO to make a blanket decision about disclosure of info? Hanks: quite so
- Hanks: requires a case by case evaluation over every piece of information by the CEO
- Hanks: consent of personal disclosure must be informed consent, they must know that consent is in fact required to disclose
- Hanks has now finished going through the legislation, moving onto other propositions
- Discussion of Middleton judgment which said was agreement that AFL would be present during interviews
- Hanks: by having AFL present, the gate was open to disclosure. Kenny points out some info couldn't be disclosed, eg ACC evidence
- Now discussing the player rules which offers self incrimination with regards to criminal matters
- Besanko asks about CEOs standing demand to clubs for information. Hanks: "do I really need to go there?"
- Besanko says well you just answered my question with a question and Hanks agrees it's a bad habit and says standing demand on borderline
- The standing demand was ASADAs communication to the AFL to tell all clubs to pass on demand for information
- Kenny: primary judge's finding of fact was about two investigations. Hanks: that finding might be somewhat hidden
- Hanks: if he did make that finding it is a mischaracterisation of the facts he found, not disputing facts themselves
- Hanks referring to something that is confidential so I'll err on the side of not mentioning it.
- Kenny: would you argue that ASADA directed the AFL? If not direction, at least significant control in giving notices to require attendance
- Back to confidential part of Walker's (from ASADA) affidavit.
- Hanks points put that interviewees were given extracts from Criminal Code saying that dishonest disclosure to government bodies unlawful
- Besanko asked what relevance this has? Hanks says representing that there is a sanction that applies to these interviews
- Hanks: that means interviews are being conducted by ASADA
- Besanko: I'm just not sure what this adds to your argument.
- Besanko: even if provided voluntarily, if provided to Cth entity still subject to Criminal Code
- Hanks: yes but this remains an ASADA investigation, that is the key point
- White says he understands the point to be that ASADA represented it that it was their interview? Hanks agrees
- Kenny: did it represent that investigation was "by" or "with" ASADA, might convey either? Hanks concedes that it might convey either
- Hanks: Deloitte was used to conduct searches in the records of clubs, including Essendon. ASADA prepared interview plans, no input from AFL
- Hanks: the interview was an ASADA interview, with the AFL just "topping and tailing", introducing and ending
- Hanks: Middleton said didn't matter if call it "joint investigation" but ASADA itself used that term
- Kenny: what turns upon the characterisation as a joint investigation, rather than what actually happened?
- Hanks: went to ASADAs purpose for joining the AFL and using their power of compulsion
- Hanks: real vice isn't calling a "joint investigation" but seeking to step around powers
- Hanks: Middleton said that disclosure was to AFL and then AFL disclosed to ASADA
- Kenny has picked up on that and asks where the judge said that?
- White asks isn't para 415 a finding of simultaneous disclosure? Hanks: that might be a fairer way of putting it
- Besanko: but why is it ASADA disclosure? ASADA asked questions but couldn't compel. Hanks: AFL only received info because improperly present
- Besanko: why throw "ASADA cloak" over interviews rather than "AFL cloak"? Interview letters mentioned AFL powers
- Hanks: because of ASADAs statutory responsibilities
- Kenny says that no matter it it was also an AFL interview it was always considered by ASADA to be their own also
- Kenny says the point you're making is that this is all not contemplated by the Act. Hanks agrees. Kenny: if true why does rest matter?
- Now discussing how long it will take as he won't be finished by lunch. Hanks says will be another hour and a half at least.
- Hanks: don't dispute that main purpose of inv was to investigate ARDVs, but another purpose to use AFLs compulsory powers
- Kenny: is there a difference between a purpose and a consequence? Hanks: yes but if Inevitable consequence, must be a purpose
- Kenny: one may wish to utilise powers and be aware consequence is to utilise powers but that doesn't mean they must have that purpose
- Still going through parts of Middleton's judgment, talking about his findings on "cooperation"
- Hanks: Middleton's finding that players knowingly consented to disclosure to AFL in room at issue, not free consent
- Besanko: you argue players have to consent to ASADA disclosure to AFL, but they were answering based on AFL powers
- Hanks: they did answer the questions and there must be some possibility that they answered because of contractual compulsion
- Kenny: what is the consequence of a lack of free consent? Hanks: the information is unlawfully collected in that case
- White asks to what extent is a finding of lack of free consent based on factual findings?
- Hanks: rely on finding that ASADA said they would use AFLs powers
- White: each interviewee legally represented, so to what extent is this connected to factual findings that we don't have?
- Hanks: reasonable to infer that the players answered because they had to answer, can't ignore element of compulsion surrounding interviews
- White: but players legally represented, people were alert about "joint inv" issue at the time. Hanks: yes some made that point
- White: an absence of free consent seems to involve findings of fact that we don't have, may not have been explored in evidence
- Kenny asks isn't there a problem with finding in para 141 of judgment that players consented? Hanks: I'll think about that
- Besanko points out something else in judgment and Hanks says he likes that. But Kenny is stuck on para 141. Will look at after lunch
- 10 minutes until lunch
- Hanks now going to the improper purpose point. Focusing not on decision to investigate but the way they chose to investigate.
- Hanks now going to the discretionary relief. Middletons finding that AFL could compel same info and pass on to ASADA.
- Going to deal with this after lunch. Hanks thinks he needs another hour not including judges' interruptions
- Howe for ASADA says Hird sought expedited hearing for one day only on promise no factual finding
- Kenny is asking how long Howe he thinks he needs. Says they have capacity to sit tomorrow
- Howe says he will try to confine the case to today because he has other professional obligation tomorrow
- Kenny points out that someone else could help him to finish tomorrow if required
- Howe could finish by 4 and then Hanks have half an hour reply. Hope to finish today
- Court adjourned for lunch
- I think back 2:15
- I don't think the Hird camp would have loved how that morning went. Just my observation.
- Besanko and White seem particularly unconvinced. But I think it'd be a stretch to say Kenny is sympathetic to the arguments
- Hard to say though, just amateur body language reading and the questions asked somewhat telegraphs what they're thinking sometimes
- Journalists were struggling through that session this morning, dry at times. Caught one watching videos of himself on his phone.
- Hanks is analogising to a case that I didnt catch the name of and is going through the facts of the case in detail
- Hanks: may be a desirable end, but the means must be within the Act and not to be enlarged, circumventing protection in the Act.
- Now referring to Plaintiff S4/2014, a case handed down in September. Says if Act suggests how inv occurs then it imports a negative
- Hanks now taking judges back to the Anthony Lagoon case, one of the cases relied upon by ASADA
- Hanks: the necessary and convenient power cannot be used to avoid protection of a fundamental right (right against self incrim)
- Hanks now moved onto the cooperation point. Cooperation merely opens the door, involves degree of deference to ASADA investigation
- Hanks now moved to the contractual regime. The players did not waive their right to privilege against ASADA, perhaps did against AFL
- Judges haven't asked a question for the last 20 minutes
- Hanks: interviews were ASADA interviews, Middleton's characterisation of interviews was not open to him on the factual findings
- Kenny: why couldn't interviewee waive rights against ASADA? Hanks: interviewee could but here told they had already signed away right
- Kenny: is that another way of saying they couldn't waive their rights because weren't fully informed? Hanks: assumed AFL there lawfully
- Kenny: is there a difficulty that they were legally represented?
- Hanks: must be found that players answered questions because they felt compelled to do so
- Hanks: another attack on how judge went about this, he assumed that ASADA could lawfully bring AFL into the interview
- Kenny asks is it your submission that players did not object at time doesn't affect result? Hanks: yes ASADA has power or doesn't
- Kenny: even if it didn't have the power, once it has info isn't it open to ASADA to use it? Hanks: not if gathered unlawfully
- Kenny points out this is entering Project Blue Sky/Bhardwaj territory. Cases about jurisdictional error. Consequences if action is unlawful
- Hanks: a decision infected by jurisdictional error is no decision. Kenny: but also decisions that say that the decision did in fact happen
- Hanks: the issuing of the notices are infected by error. Act says on basis of information, must be assumed to be lawful information
- Hanks: we are not seeking and relief which would restrain AFL from using illegally disclosed information
- Hanks back to the purpose argument, saying use of powers was a consideration doesn't adequately exclude it being a purpose
- Hanks: it was a "constitutive purpose", if not for that purpose would not have involved the AFL. Investigation would have been different.
- Besanko: what is the power then? Judge found at 256(d) that ASADA would have investigated even without cooperation of AFL. Hanks: of course
- Hanks: would have carried out investigation in a particular way. Besanko: so it is the way they investigated? Hanks: Yes
- Hanks: had it not been for the purpose of using AFLs powers, ASADA would not have designed this investigation in the way that it did
- White: In related context we hear about police investigations that use entrapment and so on, we dont look at it as purpose rather than power
- Hanks: judicial review grounds often overlap, can be both ultra vires and improper purpose. Analogies with police doesn't cut through
- Kenny: are you going to go to the question of relief soon? Hanks: yes it's next
- Hanks says that the fact Essendon and the players want to move on: "so what?"
- Hanks says that their thoughts aren't relevant to the relief to Hird
- Hanks: SC notices may go forward stripped of information, but supplementary information was provided 17 October
- Kenny: if successful, what stops AFL giving information it has to ASADA? Hanks: it is infected. Kenny: but not infected in AFLs hands
- Hanks: when information was disclosed to AFL it was infected by ASADAs conduct. Running through AFL doesn't "cleanse" information
- Besanko: could AFL not do process again?Hanks: but then usurping investigatory function of ASADA. ASADA could do again relying on own powers
- Hanks: AFL has the information, it can frame it if it likes, but it can't give it back to ASADA
- Hanks has finished now
ASADA Submissions
- Howe speaking now
- Howe (for ASADA) is outlining all of the things he plans to cover
- Howe: this case is only about lawfulness of ASADAs acquisition of info. Hanks talked about disclosure at length but not key issue
- Howe points out that an issue with disclosure would only lead to relief surrounding the actual disclosure
- Howe: not ultimately about disclosure, that argument only works if it goes to the acquisition. This is reflected in the appeal grounds.
- Howe: if the acquisition of information was in fact lawful, it can't be made unlawful by simultaneous disclosure
- Howe pointing out that Hird promised not to attack factual findings,case is about statutory construction. Reading from expedition transcript
- Howe: we have been burdened by going through His Honours factual reasons
- Howe: Hanks selectively did not read from this key document, letter from AFL to Hird, notification of interview by AFL not ASADA
- Howe: Hird never advanced these arguments about Player Rules and AFL Code at trial
- Howe: AFL was exerting its compulsory powers against Hird in the letter to him, sourced from contractual obligations.
- Howe: the letter said if you have issues contact Haddad (from AFL). Said that AFL are exercising their powers.
- Howe: this document highlights that AFL were exerting their powers in and of their own right, AFL not just just a "convenient appendage"
- Howe: players were cautioned that information may be used by ASADA. AFL took their own tape recordings (separate to ASADAs)
- Howe: can be no doubt that no matter who asked questions, players plainly, clearly and unmistakably were disclosing to AFL too
- Howe: fictitious and ridiculous idea that a "cone of silence" somehow descended on interviewees and ASADA and ASADA then disclosed to AFL
- Howe: players and staff didn't object to AFL presence, were legally represented (Hird by an SC), ignorance of law no answer
- Howe: the whole original challenge was that unlawfulness was ASADAs receipt of the benefit, was never suggested AFL didn't have power
- Howe: proposition that nobody reserved their position at interviews is a clear finding of fact. He had nailed his colours to the mast
- Howe: he had publicly stated that he wished to cooperate and he wished to accord with his public statements
- Besanko: what about finding later in judgment? Isnt he saying they cooperated because obligated? Howe: yes, scope for coextensive motivation
- Kenny: isn't it the problem that ASADA conducted their inv and players cooperated because of AFLs powers. One had to go to powers of ASADA
- Howe: Middleton found that ASADA didn't exert any power. Kenny: but we have statement that they intended to "harness" AFL power
- Howe:its a very different thing. It was the AFL that exerted powers, interviewees knew that, made choice to answer questions because obliged
- Howe: cannot conflate an absence of coercive power with an implied prohibition of indirect uses
- Howe: in fact a design feature of the scheme was this very circumstance, that sporting bodies would have powers
- Howe: this case is not like Anthony Lagoon case, no exertion of power by ASADA, Hird and players did not assert privilege
- White: but did Act authorise them to enter into arrangement where people would be coerced into answering?
- Howe: the central question is if the receipt is lawful, if it is then the agreement cannot be unlawful
- Kenny: difficulty with that is, question should be: did ASADA have power to investigate in way that it did, to take advantage of powers?
- Kenny: problem is ASADA is a statutory body, may be that it could receive that info lawfully, but what powers did it have to inv how it did?
- Howe: had power to ask questions, consistent with the general law, ASADA entitled to ask, interviewees could have declined to answer
- Howe: ASADA itself did not interfere with any privilege against self incrimination
- Howe: Middleton found that players and Hird gave information to AFL, this is a clear finding of fact.
- Howe: have to remember that the reference to "harnessing" is best thought of as receiving the benefit of the AFLs powers
- Howe: argument that Hird contends requires a very dramatic negative implication. "Has power to investigate (but not......)"
- Howe:giving example close to situation.Suppose employer makes available a computer. Subject of terms of use. Product of consensual agreement
- Howe:without search warrant, AFP couldn't demand access to computer. But AFP could go to employer and get employee to direct employee
- Howe: there would be nothing unlawful in getting the info by the AFP in that circumstance
- Besanko says it is more like AFP and employer entering into an agreement to serve notice and have joint interview
- Howe: change example to intelligence agency, so long as it doesn't breach general law
- Kenny: hard to compare agencies though, ASADA set up on quite a different basis. Have to go to the Act and Scheme to work out relationship
- Howe: example is useful to show that investigative cooperation happens all the time, odd to be subject to implicit prohibition
- White: other problems with your examples is they may not engage with the self incrimination protections
- Kenny: the provisions in the Scheme no doubt allowed questions to be asked, but you can't just fill in the gaps with use of coercive power
- Howe: it would involve an extraordinary negative implication, what happens if cooperation starts to get close?
- Howe: court actually has to locate a negative implication somewhere in the Act to suggest it's prohibited
- Howe: a negative implication would need precise and exact formulation. This negative implication would be all over the place.
- Kenny: not sure attacking it from that end is open, instead could first look at the Act and see there are no compulsive powers
- Kenny: what happened here sidestepped limitations in the Act, is what's put against you.
- Howe: that would require the proposition that "what cannot be done directly, cannot be done indirectly" which Gleeson CJ rejected
- Kenny says the citation seemed to take it to the argument and not any firm conclusion. Howe says was affirmed in Workchoices case
- Adjourned. Back at 10:15 tomorrow.
Chris Kaias @ChrisKaias · 5h
- Surely (hopefully) likely that we will be finished by lunchtime tomorrow. Just have rest of Howe's submissions and a shorter reply by Hanks.
- I note that Martin Hardie has posted photos from within the courtroom & building. I hope he sought express approval.
- If losing party seeks leave to appeal to HC, here's interesting article talking about relevant factors (from p.743) http://www.unswlawjournal.unsw.edu.au/sites/default/
- You need more than just an arguable case to get the High Court to agree to grant special leave, those factors are a good summary
- Here is my assessment of #Hird v #ASADA appeal Day 1. The parties painted 2 very different pictures of #ASADA http://sociallitigator.com/2014/11/10/can-the-real-asada-please-stand-up-two-different-pictures-in-james-hird-appeal/… #AFL
- @Footy_Maths @ChrisKaias In 2012-13 (last available year) the High Court allowed 44 of 461 special leave applications, as per pg 32 of AR.
- Chip Le Grand on how the appeal is sitting: "In boxing terms, it could be a split decision"
