It is unfair that James Hird never got the chance to put his defence to a forum that would listen and a public that needed to hear, says lawyer Darren Kane. Photo: Penny Stephens
These are unprecedented times. The year-long Australian Crime Commission Project Aperio investigation and a February media conference are etched in the memory of even those with no interest in sport. Over the ensuing 200-odd excruciating days there have been: 130 witnesses, 65,000 pages of information, Operation Cobia's 400-page “interim” report, ASADA's investigation with no end in sight, and a game of who-blinks-first the likes of which we may never see again in the theatre of dispensing justice, AFL-style.
This week saw the imposition of “the most significant sanction in AFL history” and the delivery of an outcome remarkably contrived, following on from a long softening-up process regarding the “likely” penalties. Essendon excised from the 2013 finals series. A $2 million fine and draft picks lost, so as to suitably cripple the club but not mortally wound it. James Hird was the poster boy firstly for much of what is romantic about AFL and yet now all that is apparently rotten. The punishment may ultimately serve to end his coaching career.
The AFL has sought to guard 2013 from becoming the code's year of the asterisk. But, who will guard the guards themselves? The AFL is by equal measure inquisitor, prosecutor, judge and jury. A swift resolution, to restore the integrity of the AFL, was always guaranteed to be achieved in time for September.
Distilled down from an original 34-page statement of claim, the sanctions against Essendon, Hird, Mark Thompson and Danny Corcoran are now predicated on an agreement that each failed to ensure the adequate protection of the health and welfare of the players; failed to act to avert unsatisfactory practices; and failed to act sufficiently to avoid the risk of prohibited substances being administered. The AFL's public release of the original charges, and subsequent deletion of any language asserting that individuals were administered substances that were prohibited, is hardly a satisfactory outcome for anyone invested in the game. The questions that arise on a reading of that 34-page document may never be addressed.
As to Hird, Thompson and Corcoran, the agreed basis for penalty includes no assertion that any of them engaged in any positive conduct that traversed the AFL rules. Rather, the AFL and each concur that they did not implement sufficient safeguards, did not exercise due diligence and did not take remedial action. The totality of the conduct relied upon by the AFL against each man is short in words, and substantially identical. This is curious in itself given the gross disproportionality of penalties imposed on the three. Question also how their omissions, whether intentional, negligent or otherwise, constitute “conduct” unbecoming or damaging.
On the surface, justice has been seen to be done. The outcome is, maybe, reasonable; however the process by which the outcome was reached invites question. Although the charges against Essendon et al, properly determined in a different forum, may have produced sanctions similar to or even harsher than the agreed penalties, that fact is not commensurate with the deliverance of justice. On that point, what is justice? Should it be afforded to only the parties involved, or also to a supporter base left with myriad questions?
The AFL and its key players have avoided what shaped as being a particularly unpleasant court battle, which would have subjected a number of witnesses to uncomfortable questioning in open court. While the spectacle would have been compelling, the consequences would likely have been unbecoming regardless of the evidence given.
While now a moot point, had Hird not fallen on his sword at the 11th hour, it is probable he would have succeeded in his Supreme Court proceedings commenced against the AFL, which in turn would have exposed the very governance structure of the code to judicial examination. The term “natural justice” has, unfortunately, this year become part of the Australian sporting lexicon. What though does it mean in context?
In terms of sporting tribunals, and adopting a conservative approach, the first of the twin pillars upon which natural justice sits, requires affording an affected person, such as Hird, a decision-maker both free from actual bias and also open to persuasion. Bias exists if a decision-maker has already made up its mind.
What is clear from Hird's Supreme Court suit against the AFL is that he intended proving a case that the AFL commissioners, or at least one of them, held a predetermined view on guilt. Fortuitously the AFL has avoided analysis of its public statements and questioning about private deliberations.
Moreover, if the AFL had knowledge in August 2011 of the potential planning for a experimental supplement program at Essendon, and if it could have done more at the time to monitor the Bombers' activities thereafter, is it appropriate that the AFL Commission insisted upon sitting in judgment?
The AFL has avoided being compelled to justify an internal judicial structure where it, through its employees and directors investigates conduct, lays charges and then sits in judgment. Such an arrangement sits in contrast to schemes introduced by the NRL and Cricket Australia, where conduct cases are not determined by boards of directors but rather by independent tribunals. The president of the NRL Appeals Tribunal must be a former Supreme, Federal or High Court Justice.
The second requirement of delivering natural justice demands the dispassionate adjudicator to allow all parties a fair opportunity to present a case and demonstrate (in the case of a defendant) why adverse action should not be taken. In Hird's context, this fair opportunity required the sufficient notice of properly particularised charges, unhindered access to evidence, no surprise witnesses, adequate time to prepare and the right to test the case of the AFL.
On a cursory reading of his pleading it appears Hird was given nothing much greater than a charge sheet at the time he commenced proceedings.
What has transpired this week has, while finalising some issues, solved nothing. There are no answers to the key questions raised last February and asked many times since. While convenient that all concerned decided to move on just a fortnight before the finals, does doing so repair the AFL's image?
If Hird was last Tuesday the sticking point hindering a deal, then for him to abandon a position adopted over seven months ago does not make him courageous or a hero. Hird may or may not be able to look himself in the mirror and deny the truth of 99 per cent of what has been propounded regarding his involvement in the events of 2011-12. The point is not his guilt or innocence. Rather, the issue is that it is unfair Hird never got the chance to put his defence to a forum that would listen and a public that needed to hear. It appears Dr Bruce Reid has extracted the salutary lesson from these events.
Darren Kane is a sports lawyer based in Sydney.