Documents relating to ASADA AFL Investigation

martin hardie made this Freedom of Information request to Department of Health

Response to this request is long overdue. By law, under all circumstances, Department of Health should have responded by now (details). You can complain by requesting an internal review.

From: martin hardie

Delivered

Dear Department of Health,

I seek access to the all documents including correspondence, briefings file notes and telephone records of communications made between 1 January 2013 and 30 September 2013 between:

- the Department (including Mr Richard Eccles and his staff) and Prime Minister and the Department of Prime Minister and Cabinet;

- the Department (including Mr Richard Eccles and his staff) and the Minister for Sport; and

- - the Department (including Mr Richard Eccles and his staff) and the Minister and Department for Justice;

- the Department (including Mr Richard Eccles and his staff) and the Australian Sports Anti Doping Authority; and

- the Department (including Mr Richard Eccles and his staff) and the Australian Football League, including its Commissioners (in either their private or official capacities); and

- the Department (including Mr Richard Eccles and his staff) and the Australian Sports Commission, including its Board members (in either their private or official capacities); and

- the Department (including Mr Richard Eccles and his staff) and the Australian Crime Commission;

in relation to the proposed or actual investigation by ASADA into the Essendon Football Club, including the joint press conference held on 7 February 2013, and the arrangements for the AFL ASADA joint investigation.

Yours faithfully,

Martin Hardie

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Department of Health


Attachment Acknowledgment letter 021 1415 D14 1772483.PDF.pdf
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Dear Mr Hardie

Please see attached correspondence in relation to your FOI request to the
Department of Health.

Kind regards

FOI Officer
Legal Services Branch
Department of Health
Phone: (02) 6289  1666
GPO Box 9848, Canberra  ACT  2601 | MDP 350
 

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From: martin hardie

Delivered

Dear Charine,

Thanks for your reply, I look forward to heating from you.

Yours faithfully,

Martin Hardie

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Department of Health


Attachment Charges letter 021 1415.pdf
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Dear Mr Hardie

Please see attached correspondence in relation to your FOI request to the
Department of Health.

Kind regards

FOI Officer
Legal Services Branch
Department of Health
Phone: (02) 6289  1666
GPO Box 9848, Canberra  ACT  2601 | MDP 350
 

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From: martin hardie

Delivered

Dear Andrew,

I wish to lodge a contention that the charge should be reduced or not imposed on the basis that giving access to the documents is in the general public interest or in the interest of a substantial section of the public.

There is a clear public interest in the upholding of the law and to ensure that public authorities remain within the boundaries of their statutory power. There is also clearly a public interest in maitaining the independence of ASADA and in this regard you are no doubt aware of the public commentary on this in recent days, in particular the concern expressed by Mr John Fahey, former Presdient of WADA.

As you are no doubt aware prior to 1 August 2014 the Department had no statutory or other power to receive NAD Scheme personal information as defined in the ASADA Act. You are also aware that ASADA was established with the view that it would act independently of government and sporting authorities. It seems apparent from the evidence tendered by ASADA at the recent Federal Court proceedings and the oral evidence of Ms Andruska that this independence was compromised. From that evidence the involvement of Mr Eccles, amongst others, appears central to this.

Given the clear public interest in these matters generally, which extend beyond the interest of the sporting public and thus touch upon matters that go to the heart of the rule of law I submit that it would be appropriate for the Department to not impose any charge in respect of my application.

I am happy to provide you with more detailed submissions on this point if you so require. However, i order to lessen the burden on you I am happy to confine my request to documents that mention ASADA and/or Essendon Football Club are mentioned.

Finally, I must say that in any event I would not be in any position to pay such an amount personally and that it would cause significant financial hardship if I was to pay the amount you seek and hence contend that the charge should be waived on that basis as well.

Yours faithfully,

Martin Hardie

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From: martin hardie

Delivered

Dear Department of Health,

Further to my email of 19 August I wish to note that my contention that fees should be waived is consistent with the law on section 29(5) of the Act.

In this instance the waiver of fees would allow the release of the information to flow to the public given that I am an academic researcher writing scholarly articles and a book on the topic.

The release of the information would actually be something of benefit to the public in so far as the facts concerning any alleged political and departmental involvement in the case would be better understood.

This will go to better informing the public as to the need for anti-doping processes to remain independent of any such political involvement.

Furthermore in assessing these factors it is clear I will not and do not seek any commercial benefit that may outweigh the public interest and negate the need to waive fees.

Yours faithfully,

Martin Hardie

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Department of Health


Attachment Charges letter 021 1415 D14 2006342.PDF.pdf
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Dear Mr Hardie
 
Please see attached correspondence in relation to your FOI request to the
Department of Health.

Kind regards

FOI Officer
Information Law Section| Legal Services Branch
Department of Health
Phone: (02) 6289  1718
GPO Box 9848, Canberra  ACT  2601 | MDP 350

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Department of Health


Attachment Notice of Decision to Impose Charge 021 1415 D14 2234536.PDF.pdf
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Dear Mr Hardie
 
My apologies, attached is the correct Notice of Charges Liability.

Please disregard my previous email sent earlier today at 4.09 pm.

Kind regards

FOI Officer
Information Law Section| Legal Services Branch
Department of Health
Phone: (02) 6289  1718
GPO Box 9848, Canberra  ACT  2601 | MDP 350

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From: martin hardie

Delivered

Dear Department of Health,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department of Health's handling of my FOI request 'Documents relating to ASADA AFL Investigation'.

I wish to have this reviewed on the ground that the fees should be waived as dislcosure is in the public interest.

The reasons for decision provided to me state "You have submitted that ' [t]here is a clear public interest in the upholding of the law and to
ensure that public authorities remain within the boundaries of their statutory power.' While I
would agree with this generally, it is not evident to me that giving access to documents within
your request would add anything materially to consideration of this than is being considered
in the context of the current Federal Court matter."

Last Friday 19 September the Federal Court handed down its decision at fist instance. In doing so it stated:

FEDERAL GOVERNMENT INVOLVEMENT

[79] For the purposes of these proceedings, I do not need to consider or comment on the propriety of the intervention made by the then Federal Government during the course of the investigation. Section 24 of the Act provides that the relevant minister may, by legislative instrument, give directions to the 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 NAD Scheme, or relate to the testing of a particular athlete under an anti-doping testing service, or safety checking service, being provided by the CEO under contract on behalf of the Commonwealth.

[80] ASADA is to be independent from the influence of government, save for the power of the relevant Minister to give directions, by legislative instrument, as contemplated by s 24 of the Act. The Act does not empower the Minister to override the exercise of the CEO’s statutory powers in relation to a specific athlete, and requires any direction to be made by legislative instrument. Ministerial direction outside the specific permission given by the Act would normally be treated as impliedly forbidden.

[81] This is not to say that the CEO may not discuss matters with the relevant Federal Government department, for instance in relation to financial resources and the general operation of ASADA. Further, one of the functions of the CEO is to advise the relevant minister about matters relating to any of his or her other functions referred to in s 21 of the Act: see s 21(1)(n).

It is clear that the Federal Court did not feel that the matters raised in my request were relevant to its particular decision. However, this is not to say that the matters are not of public interest. The question of the extent and nature of any political involvement in the case that may have compromised ASADA's independence is still a live issue that is of concern. On this basis I submit that it disclosure remains a matter of public interest and I request the fees be waived.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/d...

Yours faithfully,

Martin Hardie

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Department of Health


Attachment IR Acknowledgment letter 021 1415 D14 2354108.PDF.pdf
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Dear Mr Hardie

Please see attached correspondence in relation to your Internal Review
request to the Department of Health.

Kind regards

FOI Officer
Information Law Section| Legal Services Branch
Department of Health
Phone: (02) 6289  1718
GPO Box 9848, Canberra  ACT  2601 | MDP 350

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Department of Health


Attachment Internal Review decision 021 1415 D14 2509242.PDF.pdf
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Dear Mr Hardie

Please see attached correspondence in relation to your FOI internal review
request to the Department of Health.

Kind regards

Charine Bennett
A/g FOI Coordinator
Information Law Section| Legal Services Branch
Department of Health
Phone: (02) 6289  1666
GPO Box 9848, Canberra  ACT  2601 | MDP 350

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martin hardie left an annotation ()

> On 28 Jan 2015, at 9:59 am, Annan Boag <Annan.Boag@oaic.gov.au> wrote:
>
> Our reference: MR14/00395
>
>
> Dear Mr Hardie
>
> Your application for IC review of an FOI decision
>
> I refer to your application for Information Commissioner (IC) review of a charges decision of the Department of Health (Health) under the Freedom of Information Act 1982 (Cth) (the FOI Act).
>
> The Office of the Australian Information Commissioner (OAIC) is currently considering your IC review application, and conducting inquiries with Health.
>
> For the OAIC to process your application for review, we require your cooperation. While we will take into account your circumstances and capacity to contribute to the IC review process, where an IC review applicant fails to cooperate in progressing an IC review application without reasonable excuse, the OAIC may decide not to undertake, or to discontinue, the review. Please let us know if your contact details change. At this stage the OAIC does not require any further information from you.
>
> The OAIC is required to conduct an IC review with as little formality and as little technicality as possible. We also aim to resolve matters at an early stage by agreement between the parties.
>
> We have requested that the Health provide us with information about its estimate of the processing charge. We provide agencies with two weeks to compile this information. Once we receive a response from the agency, we will consider it in light of your application for IC review.
>
> If the OAIC’s early assessment is that the decision Health appears to be incorrect, we will invite Health to make a revised decision under s 55G. If it appears that Health’s decision is correct, we will call to discuss the matter with you. If, following that conversation, our early assessment is still that the Health’s decision is correct; we will invite you to consider withdrawing your application for IC review.
>
> If your application for review cannot be resolved informally in this manner it will proceed to a decision by an OAIC Commissioner.
>
> A member of the OAIC’s Triage and Early Resolution Team will aim to contact you to discuss this matter within two weeks of receiving the requested information from Health, that is, around four weeks from today.
>
> Further information about the IC review process can be found in Part 10 of the Guidelines, which are available on our website at www.oaic.gov.au/freedom-of-information/a....
> If you are unhappy with any decision that we make in relation to your application, or the way that we are handling your application generally, I would encourage you to raise this in the first instance with the case officer responsible for your matter. The OAIC’s internal complaint handling policy is available on our website at www.oaic.gov.au/about-us/corporate-infor.... If we are unable to resolve your concern to your satisfaction, you may complain to the Commonwealth Ombudsman, whose office can be contacted on 1300 362 072 or via www.ombudsman.gov.au.
>
> If you would like to discuss this matter, please contact Timothy Fleming on 02 9284 9731 or by email at Timothy.Fleming@oaic.gov.au. Please quote reference number MR14/00395.
>
> Yours sincerely
>
>
>
> Annan Boag
> Assistant Director
> Dispute Resolution Branch

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martin hardie left an annotation ()

23 april 2015

Dear Mr Hardie

Thank you for your email.

I apologise for the delay in contacting you with regards to this matter.

There was some delay in receiving information from the Department of Health. However, the documentation has now been received and the OAIC has assessed the DOH evidence regarding the charges decision. We will be contacting you in the next couple of weeks to discuss provide further update and information regarding our preliminary view.

Regards

Timothy Fleming| Investigations Officer

Office of the Australian Information Commissioner

Level 3, 175 Pitt Street, Sydney NSW 2000

GPO Box 5218 Sydney NSW 2001 |www.oaic.gov.au

Phone: +61 2 9284 9731

Fax: +61 2 9284 9666

Email: timothy.fleming@oaic.gov.au

Important update: The Freedom of Information Amendment (New Arrangements) Bill 2014 which proposes to close the OAIC on 31 December 2014 was not passed by the Australian Parliament before the end of the 2014 sitting period. The OAIC will therefore remain operational until further notice. For further information see the OAIC website.

From: Martin Hardie [mailto:martin.hardie@deakin.edu.au]
Sent: Thursday, 23 April 2015 3:36 PM
To: Annan Boag
Cc: Martin Hardie; Timothy Fleming
Subject: Re: Update on your request for IC review of a charges decision - MR14/00395 [SEC=UNCLASSIFIED]

Dear Annan and Timothy

I am wondering if any progress has been made in this matter?

Thanks

Martin

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