THE
UNDER
1982
ACT
RELEASED HEALTH
OF
BEEN
HAS INFORMATION
OF DEPARTMENT
THE
DOCUMENT
FREEDOM
BY
THIS
FOR OFFICIAL USE ONLY
Football Club, World Anti-Doping Agency (WADA), the Court of Arbitration for Sport (CAS),
the Commonwealth Ombudsman, the media and the Victorian Worksafe Authority ‘have all
either acted corruptly or been involved in a massive cover-up’. s47F
also suggests the
material contained in his response to s47F
should motivate you to insist the Prime Minister
order a Royal Commission into the Essendon matter.
4. s47F
has been a frequent correspondent on anti-doping matters to a wide audience,
particularly ASADA’s investigations into doping in the AFL. In his correspondence of
21 January, s47F
provides an itemised response to comments made by s47F
in his
article, outlining his views and making allegations regarding many aspects of the Essendon
matter.
5. Notwithstanding that the Department has had no direct role in the Essendon investigation and
the correspondence is aimed at addressing specific elements of s47F
article, s47F
remarks are redolent of his longstanding narrative on the Essendon matter and, on our
knowledge of the relevant processes and levels of review applied to the investigation, appear to
provide no new or substantive material to support the commissioning of any speci
THE fic inquiry or
which would be of any probative value to such an inquiry.
6. It should also be noted that some of the allegations levied by s47F
in this and previous
correspondence could potentially be defamatory, and care should be exercised such that any
response to s47F
should not allow for an interpretation that any crede
UNDER nce is being given
1982
to those allegations.
7. Ministerial correspondence MC17-001460 is from s47F
s47F
expressed concerns regarding the joint investigation between the AFL and ASADA
ACT
into doping activities at the Essendon Football Club, specifically that the joint investigation was
conducted to deliberately and knowingly circumvent the protections provide
HEALTH d to athletes under
RELEASED
the
Australian Sports Anti-Doping Authority Act 2006 (ASADA Act), and as a consequence of
OF
this, the confidentiality of those under investigation was continually breached. s47F
also
expressed concern regarding use of an interim report provided by ASADA to the AFL, insofar
BEEN
as by doing so ASADA allowed the AFL to improperly charge Essendon and Essendon support
staff’. s47F
has also been a long standing correspondent on the Essendon Football Club
INFORMATION
doping matter.
HAS
8. In mid-2014, the Essendon Football Club and Mr James Hird filed an application to the Federal
OF
Court challenging the legality of the ASADA-AFL joint investigation and the disclosure of
information by ASADA to the AFL. It was alleged ASADA
DEPARTMENT had no power to conduct the
investigation in the way it was conducted, that the investigation was undertaken for improper
purposes, and that ASADA breached its confidentiality obligations.
THE
9. The validity of the joint investigation was confirmed in the Federal Court ruling in September
DOCUMENT
FREEDOM
2014. In his ruling Justice Middl
BY eton concluded:
• ASADA complied with the rule of law in establishing and conducting, in the manner and
for the pur
THIS poses it did, the investigation.
• In addition, ASADA lawfully provided the Interim Report to the AFL, which has
subsequently been acted upon by the AFL in bringing disciplinary charges against
Essendon and Mr Hird (for breaches of governance).
10. Justice Middleton’s findings were affirmed by the Full Bench of the Federal Court in a
decision handed down in January 2015.
11. On this basis, it is the Department’s view the concerns raised by s47F
have had due
consideration in the courts and that no new or substantive matters are raised in the
correspondence.
Page 2
FOR OFFICIAL USE ONLY
FOI 230-16171
Document 1
Page 2 of 9
FOR OFFICIAL USE ONLY
Background
Australia’s anti-doping legislation provides for the Minister for Sport to give directions, by
legislative instrument, to the ASADA Chief Executive Officer (CEO) in relation to the performance
of his or her functions and the exercise of his or her powers. However, such a direction must not
relate to a particular athlete, or a particular support person, who is subject to the National
Anti-Doping (NAD) Scheme, or the testing of a particular athlete under an anti-doping testing
service being provided by the CEO under contract on behalf of the Commonwealth (Section 24,
ASADA Act).
These provisions ensure the independence of ASADA’s operations and prevent any prospect of
undue political influence in the conduct of anti-doping matters relating to athletes and athlete
support persons.
In light of these provisions successive Ministers for Sport have remained distanced from the
conduct of ASADA investigations and associated legal processes.
THE
Australia is a state party to the UNESCO
International Convention against Doping in Sport (Convention). A requirement of the Convention is that State Parties must abide by the principles of
the World Anti-Doping Code (The Code). The Code is the overarching docume
UNDER nt which provides
1982
for harmonised anti-doping rules and processes to be observed by sports and governments alike to
ensure a level playing field in world sport.
ACT
The Code recognises the CAS as the appropriate resolution body for disputes in relation to anti-
doping matters.
RELEASED HEALTH
OF
Australia’s obligations under the Convention are given effect through the operation of the ASADA
Act and NAD Scheme. Amongst other provisions, these require Australian National Sporting
BEEN
Organisations to operate anti-doping programs that are compliant with the Code and approved by
ASADA.
INFORMATION
HAS
The rights of individuals alleged to have committed a possible anti-doping rule violation are central
OF
to Australia’s anti-doping arrangements, and include:
•
DEPARTMENT
the opportunity to address allegations of a possible anti-doping violation through a submission
to the independent Anti-Doping Rule Violation Panel (Panel). The Panel reviews the evidence
collected by ASADA to determine whe
THE ther an alleged violation should progress to a sport for
DOCUMENT
adjudication;
FREEDOM
BY
• the right to a fair hearing;
• the protection of
THIS personal information, with penalties for unauthorised disclosure;
• the right to be notified of the possible consequences if an individual fails to comply with a
request from the CEO; and
• the right to appeal a decision by ASADA or Panel to the Administrative Appeals Tribunal
and/or the Federal Court, and appeal options in relation to the decisions of a sports tribunal.
The ASADA investigation into doping at the Essendon Football Club has followed due process, and
has been subject to extensive review including by the Australian Federal Court and Full Bench of
the Federal Court. The finding by CAS that the Essendon players committed doping violations was
also appealed by the players to the Swiss Federal Tribunal, and was dismissed in October 2016.
The right of WADA to appeal the decision by the AFL Tribunal to the CAS is enshrined in Article
13 of the Code, and replicated in the AFL’s Anti-Doping Code.
Page 3
FOR OFFICIAL USE ONLY
FOI 230-16171
Document 1
Page 3 of 9
FOR OFFICIAL USE ONLY
CAS decisions over the last several decades have significantly contributed to the formation of a
body of distinct sports law. CAS has dealt with numerous cases covering a wide range of legal
issues across sports.
It is also relevant to note:
• the injections program was described in an internal review commissioned by the Essendon
Football Club and conducted by Dr Ziggy Switkowski AO as a ‘pharmacologically
experimental environment never adequately controlled or challenged or documented’.
• Essendon pleaded guilty to two breaches of the Victorian Occupational Health and Safety Act
2004 in the Melbourne Magistrates Court.
A detailed time line of the investigation and subsequent events is at Attachment A.
THE
Relevance to Election Commitments / Budget Measures: Not applicable
State / Territory / Stakeholder Engagement:
UNDER
Not applicable
1982
Financial Implications: Nil
ACT
HEALTH
Sensitivity:
RELEASED
The Essendon anti-doping matter has now been in the public eye for over four years. The dismissal
OF
of the Essendon player’s appeal of the CAS decision by the Swiss Federal Court in October 2016
effectively ended the formal anti-doping process. Notwithstanding, public interest in this matter
BEEN
continues and we understand legal processes have recently been initiated by an individual in the
Victorian Supreme Court against AFL officials in relation to the Essendon matter.
INFORMATION
HAS
Your response to the concerns expressed in the correspondence is also likely to attract media
OF
attention in the context of any possible inquiry into the Essendon matter.
DEPARTMENT
Rural and Regional Considerations: Not applicable
THE
DOCUMENT
FREEDOM
BY
Regulatory Burden Implications and/or Deregulation Opportunities:
Not applicable
THIS
Timing/Handling (including legislative changes): Your views on this matter will affect the handling of future correspondence relating to the ASADA
investigation into doping at the Essendon Football Club.
Consultations: Not applicable
Communication/Media Activities: Not applicable
Attachments:
A – ASADA Investigation Timelines
Page 4
FOR OFFICIAL USE ONLY
FOI 230-16171
Document 1
Page 4 of 9
FOR OFFICIAL USE ONLY
ATTACHMENT A
ASADA Investigation Timeline
November 2011
Australian Crime Commission (ACC) releases
Threats to the Integrity of Professional Sport in
Australia Report highlighting threats to the integrity of professional sport and potential for
organised crime to infiltrate sport in Australia.
April 2012
Data from an ACC 2010–11
Illicit Drug Data Report indicates the market for Performance and
Image Enhancing Drugs (PIEDs) is expanding.
Mid 2012
THE
ACC initiates an investigation (Project APERIO) in conjunction with the Australian Sports
Anti-Doping Authority (ASADA) and Therapeutic Goods Administration to consider the extent of
PIEDs use by professional athletes, market size and extent of organised criminal involvement.
UNDER
19 December 2012
1982
ASADA starts its investigation (Operation COBIA) into alleged use of performance enhancing
ACT
substances by players and support persons in Australian Sport. While ASADA has access to
information collected by ACC it is not legally able to use this information to establish doping
HEALTH
violations due to restrictions imposed on information gathered using ACC coercive powers.
RELEASED
OF
31 January 2013
ACC briefed AFL, NRL and COMPPS on the findings from Project Aperio.
BEEN
5 February 2013
INFORMATION
Essendon announces it has received inform
HAS ation about supplements given to players as part of the
club’s ‘fitness program’ in 2012 and has contacted ASADA requesting assistance in conducting an
OF
investigation.
DEPARTMENT
7 February 2013
ACC announces findings from Project APERIO.
THE
ASADA commences interviews and
DOCUMENT evidence gathering.
FREEDOM
BY
9 February 2013
THIS
Essendon is advised of a joint investigation between AFL and ASADA and that ASADA will obtain
information through exercise of the AFL ‘compulsory powers’.
Mid February 2013
AFL exercises its powers and seizes over 120,000 documents which are searched, copied and
analysed.
19 March 2013
ASADA (with AFL present) commences interviews with AFL players and personnel. ASADA
conducts 110 initial interviews with AFL players and support personnel between 19 March and
26 July 2013.
21 March 2013
ASADA works with the NRL to have notices of interview issued to NRL players and support staff.
Page 5
FOR OFFICIAL USE ONLY
FOI 230-16171
Document 1
Page 5 of 9
FOR OFFICIAL USE ONLY
29 April 2013
ASADA commences first interview with an NRL player. Unlike AFL players NRL players are
permitted to claim privilege against self-incrimination and not answer ASADA’s questions.
ASADA postpones NRL interviews.
1 August 2013
With enactment of amendments to the
Australian Sports Anti-Doping Authority Act 2006 the
ASADA CEO is given authority to compel any person to attend an interview and/or produce
documents or things.
2 August 2013
ASADA provides the AFL with an ‘interim report’ of its investigation.
7 August 2013
THE
ASADA recommences interviews with NRL players and support persons. Interviews are conducted
between August and October 2013.
28 August 2013
UNDER
AFL Commission issues penalties against Essendon under the AFL’s Code of Conduct for bringing
1982
the game into disrepute. Penalties include exclusion from the 2013 AFL final series, club fines of $2
million, and withholding of future year draft picks.
ACT
Several individuals are issued penalties including head coach James Hird (12 month ban), Danny
Corcoran (four month ban), and senior assistant coach Mark Thompson (fined $30,000).
RELEASED HEALTH
20 November 2013
OF
ASADA commences interviewing third parties using new legislative powers to compel individuals
to attend interviews and/or produce documents or thi
BEEN ngs. Third party interviews and/or attempts to
continue interviews with third parties continue until the end January 2014.
INFORMATION
17 December 2013
HAS
OF
NRL identifies seven breaches of the NRL Code of Conduct by Cronulla, resulting in the issuing of
a preliminary fine of $1 million.
DEPARTMENT
Coach Shane Flanagan accepts a 12 month ban, which is reduced to ten months upon the
completion of an education and training course focussing on responsibilities as coach. Former
THE
Head Trainer Trent Elkin is suspended for two years.
DOCUMENT
FREEDOM
BY
3 February 2014
Former Minister for Sport the Hon Peter Dutton MP announces provision of support for ASADA
THIS
($250,000) to assist in bringing the current investigation to a conclusion. ASADA engages
the Hon Garry Downes AM QC to assist in completing the investigations phase.
26 February 2014
ASADA CEO Ms Aurora Andruska PSM advises the Community Affairs Senate Estimates
Committee that the investigations phase is completed.
28 April 2014
Mr Downes submits his report to the ASADA CEO.
10 May 2014
Ms Andruska retires as ASADA CEO. Mr Ben McDevitt AM APM is appointed as CEO.
Page 6
FOR OFFICIAL USE ONLY
FOI 230-16171
Document 1
Page 6 of 9
FOR OFFICIAL USE ONLY
The new ASADA CEO’s background in law enforcement and investigations provide a sound basis
for ASADA’s ongoing development of an investigations and intelligence capability (consistent with
the direction of the revised 2015 World Anti-Doping Code).
12 June 2014
ASADA CEO issues show cause notices to 34 current and former Essendon players advising each
they are the subject of possible anti-doping rule violations.
13 June 2014
Essendon responds by filing an application to the Federal Court challenging the legality of the joint
investigation and other processes including the disclosure of information by ASADA to the AFL.
The application seeks to have a permanent injunction on the use of all information collected in the
joint investigation. Mr Hird files a similar application.
11-13 August 2014
THE
Federal Court case is heard by Justice James Middleton.
20 August 2014
ASADA issues show cause notices to 17 NRL players. The notices relate to the alleged use of
UNDER
hormone-releasing peptides CJC-1295 and GHRP-6.
1982
23 August 2014
ACT
NRL announces 12 current and former players from Cronulla will receive 12 month suspensions
(back-dated to 23 November 2013) for the use of the prohibited peptides during the 2011 season.
HEALTH
None of these sanctions are appealed.
RELEASED
OF
Matters relating to the other five players remain ongoing.
19 September 2014
BEEN
Justice Middleton hands down an unequivocal ruling and determines ASADA has complied with
the rule of law in its investigation including the conduct of a joint i
INFORMATION nvestigation and the supply of an
HAS
interim report to the AFL.
OF
29 September 2014
DEPARTMENT
The World Anti-Doping Agency issues a statement confirming it will not appeal the NRL’s
decision to impose 12 month sanctions but criticises ASADA and the Australian Government for
THE
the delay in finalising the NRL matters.
DOCUMENT
FREEDOM
2 October 2014
BY
Mr Hird lodges an appeal to the Full Bench of the Federal Court but Essendon decides not to appeal
THIS
Justice Middleton’s decision.
17 October 2014
ASADA re-issues amended show cause notices to the 34 current and former Essendon players.
10-11 November 2014
The Full Bench of the Federal Court hears Mr Hird’s appeal.
14 November 2014
The AFL issues infraction notices to a former Essendon support person and 34 current and former
Essendon players.
Page 7
FOR OFFICIAL USE ONLY
FOI 230-16171
Document 1
Page 7 of 9
FOR OFFICIAL USE ONLY
15 December 2014
The AFL Anti-doping Tribunal commences hearing (in-camera) the evidence collected by ASADA
regarding the Essendon players and support person.
30 January 2015
Justice Sue Kenny announces the Full Bench of the Federal Court has unanimously dismissed the
appeal and orders Mr Hird to pay ASADA’s legal costs.
18 February 2015
The AFL Tribunal hears final submissions from ASADA and the Essendon players. The Tribunal
retires to consider the matter.
The Tribunal’s decision is expected to be handed down on 31 March 2015.
The application of sanctions may be subject to a separate announcement and process by the
Tribunal and include the hearing of additional evidence (ASADA will be involved in t
THE his process).
27 February 2015
Mr Hird announces he will not lodge an application seeking special leave to appeal the decision of
the Full Bench of the Federal Court to the High Court of Australia. UNDER
31 March 2015
1982
The Tribunal states it was not ‘comfortably satisfied’ 34 current or former Essendon players had
ACT
committed an anti-doping rule violation during 2012.
17 April 2015
RELEASED HEALTH
The Tribunal affirms ten violations of anti-doping rules (of 31 allegations) by Essendon support
OF
person Stephen Dank.
20 April 2015
BEEN
ASADA announces it will not appeal the Tribunal’s decision.
12 May 2015
HAS INFORMATION
World Anti-Doping Agency (WADA) exercises its right to appeal the Tribunal’s decision in
OF
relation to possible anti-doping rule violations by 34 current or former Essendon players.
I June 2015
DEPARTMENT
WADA appeals the Tribunal’s decision to clear athlete support person, Mr Stephen Dank, of 21 of
31 doping violation allegations.
THE
DOCUMENT
25 June 2015
FREEDOM
BY
The Tribunal advises it has handed down a lifetime sanction to Mr Dank for the ten anti-doping rule
violations he was found to have committed.
THIS
20 July 2015
Media reports that Mr Dank has notified the AFL he will appeal the lifetime ban. Appeal
confirmed.
6 August 2015
Media reports that the re-testing arranged by WADA of urine samples from Essendon players
collected in 2012 reveal abnormally high amounts of Thymosin beta-4 for two players.
10 August 2015
Media reported on a leaked 1294 page transcript from the 17 day AFL Tribunal Hearing including
detailed statements from players.
Page 8
FOR OFFICIAL USE ONLY
FOI 230-16171
Document 1
Page 8 of 9
FOR OFFICIAL USE ONLY
25 August 2015
CAS announces the WADA appeal will be heard in Sydney from 16 November 2015. CAS has set
aside 5-7 days for the hearing.
9 November 2015
WorkSafe Victoria charged Essendon with two breaches of the
Victorian Occupational Health and
Safety Act 2004:
•
One breach of section 21(1) – failing to provide and maintain for employees a working
environment that is, so far as is reasonably practicable, safe and without risks to health.
•
One breach of section 21(2)(a) - failing to provide and maintain for employees a system of
work that is, so far as is reasonably practicable, safe and without risks to health.
WorkSafe Victoria also completed an investigation into alleged breaches of the Act by the AFL.
It could not be established to the requisite standard that the AFL breached the Act.
THE
16 November 2015 (week commencing)
The Court of Arbitration for Sport commenced hearings into the WADA appeal. CAS heard the
matter ‘in-camera’.
UNDER
30 November 2015
1982
Essendon indicated it will plead guilty to breaches of the Victorian
Occupational Health and Safety
Act 2004 brought by WorkSafe Victoria in relation to the injections programme.
ACT
22 December 2015
HEALTH
Essendon pleaded guilty to two breaches of the Victorian
Occupational
RELEASED
Health and Safety Act 2004
in the Melbourne Magistrates Court.
OF
12 January 2016
BEEN
CAS upholds the WADA appeal and determined the players committed anti-doping rule violations.
Players were sanctioned with a period of ineligibility of two years, backdated to 31 March 2015 and
HAS INFORMATION
taking into account prior provisional suspensions. Players were ineligible to compete in the 2016
AFL season. The finding has also attributed c
OF osts against the players and the AFL to WADA and
CAS.
DEPARTMENT
10 February 2016
Players appeal the CAS decision to the Swiss Federal Court.
THE
11 October 2016 DOCUMENT
FREEDOM
BY
Swiss Federal Court dismissed the appeal by 34 current and former players from the Essendon
Football Club against the CAS determination that the players committed anti-doping rule violations
THIS
when they were involved in an injections program in 2011-12.
All AFL players have now served their ban and are eligible to play in the 2017 season .
Page 9
FOR OFFICIAL USE ONLY
FOI 230-16171
Document 1
Page 9 of 9
