The Australian Sports Anti-Doping Authority has claimed it and the AFL conducted ‘‘separate’’ probes into Essendon’s supplements program, as James Hird officially dragged AFL chief Gillon McLachlan and former boss Andrew Demetriou into his Federal Court case.
In a flurry of paperwork lodged in the Federal Court on Wednesday night, the Bombers and suspended coach Hird argue the investigation, as part of Operation Cobia, was ‘‘ultra vires’’ (beyond the scope) of ASADA’s 2006 Act, its regulations and the National Anti-Doping scheme.
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Allegations of forgery in ASADA saga
Pharmacist caught up in Essendon doping saga claims in an interview on ABC's 7.30 his signature was forged on an official document allegedly used to supply peptides. Nine News.
In a curious development, ASADA will ask in the hearing whether any or all of the 34 former and current Essendon players issued with show-cause notices will need to give evidence or be part of proceedings. Hird does not want the players involved and the players’ lawyers believe they are not required to give evidence.
ASADA and Hird and the Bombers are also at loggerheads over when the case should be heard. Hird has asked the court to start a trial on August 18, and expects it to last for two or three days, while ASADA believes it could start on August 4, and last for two days.
In what could be a significant move, Hird has also accused the anti-doping body of acting ‘‘beyond power in creating and then publishing’’ last year’s interim report with the AFL. This led to Hird’s 12-month suspension.
‘‘ASADA, in creating and disseminating the interim report, did so for a purpose not provided for in the ASADA legislative scheme,’’ the submission said.
In its submission, ASADA has revealed what its ‘‘basic case’’ is likely to be.
Through Tom Howe QC, and lawyer Dan Star, and signed off by Australian Government Solicitor Craig Rawson, ASADA argues ‘‘there is no express or implied legislation prohibition in the act’’ against ‘‘investigative co-operation’’ between it and the AFL.
‘‘The ASADA and AFL co-operated with one another in the course of conducting their own separate investigations. ASADA’s actions in this regard were authorised by the legislative scheme’’.
ASADA says all information provided to the AFL was ‘‘lawfully given for the purposes of or in connection with’’ the NAD scheme.
However, if Hird and the Bombers can prove there was a ‘‘contravention of legislative requirements’’, ASADA will argue it does not ‘‘warrant the grant of relief’’ the two parties are calling for. Hird and the Bombers want the case deemed unlawful, therefore rendering the show-cause notices void.
ASADA says Hird and the Bombers should have their case rejected because, during last year’s interview process, they ‘‘acquiesced in the so-called joint interviews and so-called joint investigation; and they advertently declined to raise any objection to the steps now sought to be impugned. There has also been unexplained lengthy delay by Essendon and Mr Hird.’’
Through his lawyer, Peter Hanks QC, Hird will argue ASADA acted ‘‘in breach of the confidentiality obligations imposed on ASADA’’ and ‘‘acted for purposes extraneous to those of ASADA in furthering its own investigation’’.
While investigations intensified after the Bombers self-reported on February 5 last year, Hird wants to know what terms, conditions or arrangements were put in place between the AFL and ASADA between January 2013 and February 5.
During the discovery period, Hird has called for any email or written communications between the AFL and ASADA to be produced, ‘‘including, but not limited to, Messrs Gillon McLachlan, Brett Clothier and Andrew Demetriou’’. Clothier is a key member of the AFL’s integrity unit.
Hird also wants transcripts of interviews with the Essendon players, with specific reference to who asked the questions.
Essendon has Neil Young QC, a former chairman of the Victorian Bar, president of the Australian Bar Association and one of the leading commercial law experts, leading its case.
In their submission, the Bombers argue ‘‘the players should not have been served with these show-cause notices and should not have to respond to them at all’’.
Hird has also sought an injunction preventing the players having to respond to the show-cause notices until the case is finished.
As it stands, they have until July 11 to do so.
Hird says he seeks ‘‘expedition of the hearing’’ as he will return from his 12-month suspension by the AFL over governance issues and rejoin the Bombers in late August.
ASADA wants any further affidavits and documents to be filed by close of business on July 3.