Although I have tried to use simple English in my articles / dissections, so, those at the AFL and the media, who don’t cerebrate very often, can understand them, it appears, I am talking to a brick wall. I have therefore written this piece in point form, so, the media can go through it point-by-point and decide whether they have missed the important issues after six months of poor reporting.

From day one, the media focussed entirely on the belief that Essendon players were administered WADA prohibited or harmful substances. Such reporting was illogical and unprofessional and in breach of the press council code because barring illegal leaks by either the AFL or ASADA, no one would have known until ASADA released its report. There are five issues which should have been considered by the AFL and the media.

1. The possible administering of WADA prohibited or harmful substances:
   
   i. As the jury (ASADA) didn’t issue a report until early August 2013, there was no reason why people should have assumed Hird was ‘guilty’ before then.
   
   ii. It was incomprehensible that AFL chief executive, Andrew Demetriou, thought that Hird should consider standing aside as coach before any evidence was taken, let alone a judgment being handed down.
   
   iii. It was bewildering that Age journalist, Caroline Wilson, not only implied that Hird was guilty months before the report was handed down, but thought he was reprehensible for wanting to defend himself.
   
   iv. It was staggering that before all the evidence was collected by ASADA, Demetriou claimed that “Essendon would not get a soft landing” [because it was guilty].
   
   v. It seems Demetriou, Wilson, Patrick Smith and the rest of the hit squad were all wrongly hung-up on Hird’s interest in cutting-edge supplements. As the Australian Institute of Sport has been boasting about its “cutting-edge supplements program” since 2000, which enhances performance, it was unfair and hypocritical to attack Hird for showing interest in such supplements.
   
   vi. As the ASADA Interim Report states that it could find no reason to issue infraction notices against Essendon, it seems mostly likely that Essendon will be cleared of administering WADA prohibited or harmful substances.
   
   vii. The AFL acknowledged in the Deed of Settlement that “Hird did not set out to implement a supplements program that would result in players being administered WADA prohibited substances”.
   
   
2. Occupational, Health and Safety (OH&S) Breaches:
   
   i. There were at least 14 people at Essendon who were more responsible than Hird for OH&S – the eight board members; the chief executive; the human resource manager; the OH&S manager, the football manager; the financial controller; and the doctor.
   
   ii. The AFL was equally as responsible as Essendon for OH&S breaches through two agreements. The first is the bi-lateral agreement between the AFL and Essendon, which allows Essendon to compete in the competition. The second agreement is the tripartite agreement between each player, the AFL and the Essendon club.
   
   iii. The AFL has the same legal responsibility as Essendon to ensure Essendon provides a safe work place.
   
   iv. Essendon and the AFL failed to ensure Essendon provided a safe work place.
   
   v. The AFL culpability is exacerbated by its failure to take the necessary action when it first heard Essendon was interested in supplements in August 2011. Amazingly, neither Demetriou nor deputy chief executive, Gillon McLachlan contacted the Essendon CEO or Chairman, let alone conducted a risk assessment to ascertain whether Essendon was complying with its OH&S responsibilities. And to highlight its negligence or apathy, the AFL didn’t do anything when it heard the Essendon doctor had been marginalised in 2012. Subsequently, McLachlan virtually accepted responsibility for the whole saga when he stated on SEN Radio on 28 August 2013 that “I’m happy to take that on the chin in the sense that if we had gone out there every month and monitored it, then maybe we wouldn’t be in this situation. The AFL dropped the ball by not monitoring the Essendon supplement program after advising coach James Hird to steer clear of using peptides in August 2011. The fact potentially though that we weren’t out there regularly monitoring is potentially a failing of the AFL.” Demetriou also made similar admissions.
   
   vi. Hird was only a small cog in a big wheel.
   
   vii. Hird wasn’t given any OH&S training. He wasn’t given an OH&S Manual. He wasn’t told what records he had to keep and no one at either Essendon or the AFL checked to see whether he was fulfilling his responsibilities.
   
   viii. OH&S is a very complex area and there is no way Hird would have known his limited obligations. I suspect none of the other coaches knows, and I’d be amazed if there were a readily accessible record of every pain killing injection given to every player in every club.
   
   ix. OH&S is so complex it appears even Ziggy Switkowski didn’t know enough about it to even mention the OH&S Act in his report to Essendon. Then again, Switkowski unbelievably didn’t even canvass the Essendon Board’s OH&S responsibilities nor the AFL’s OH&S responsibilities, which I believe should have ensured his report was thrown in the bin.
   
   
3. The Process
   
   i. Hird was denied natural justice. The AFL participated as a joint partner collecting the evidence; the AFL issued the charges; the AFL insisted on conducting the trial, deciding guilt or innocence; and determining the penalties.
   
   ii. It is beyond my comprehension that not one of Mike Fitzpatrick, Chris Langford, Sam Mostyn, Justice Linda Dessau AO, Christopher Lynch, Richard Goyder or Paul Bassat thought that justice would not be seen to be done if they sat in judgment of Essendon and the four other defendants.
   
   iii. Fortunately, it is reasonable to assume some of them actually thought it was wrong because the AFL threw in the towel and capitulated when Dr Reid insisted on the Supreme Court deciding whether it was right for the Commission to sit in judgment on him. Demetriou (alias Sergeant Schultz, “I see nothing; I know nothing”) is excused in this instance because he told Mike Sheahan in his interview on 27 September 2013, he didn’t know why Dr Reid’s charges were dropped.
   
   iv. In his interview with Mike Sheahan, Demetriou implied Essendon was guilty the moment he read [many months ago] the Bruce Reid letter complaining about being marginalised. Despite that, Demetriou claimed on a number of occasions he was entitled to sit on the Commission (jury) because he hadn’t made up his mind about whether anyone was guilty. He can’t be serious. It would be inconceivable that AFL chairman, Mike Fitzpatrick (and probably the rest of the commissioners) wasn’t also aware of the contents of the letter so how he could he could think it was fair for him sit on the jury is also bewildering
   
   v. It should never have been a joint investigation. The AFL had a conflict of interest because of its failure to take appropriate action in 2011 and 2012. Participating in the investigation also put it in a position to leak if it so desired. Furthermore, participating put it in a position where it could steer the investigation away from itself. Once, Demetriou learnt that Hird’s and Danny Corcoran’s understanding about his phone call to David Evans was different from his, he should have withdrawn the AFL from the joint investigation because of the conflict of interest.
   
   vi. A friend with links to another club told me Bruce Reid wasn’t even asked whether David Evans told him on 1 February that Demetriou and McLachlan told him Essendon was about to be named by the ACC.
   
   vii. Demetriou won’t speak to Herald Sun journalist Mark Robinson because Robinson quoted Hird’s and Danny Corcoran’s testimony about the Demetriou / Evans phone call. It is therefore reasonable to assume Demetriou thinks less of Hird than Robinson. In insisting he sat on the jury, Demetriou was polluting the process and denying Hird natural justice.
   
   
4. The Penalties
   
   i. I have never known such harsh penalties imposed for breaches of OH&S laws. Since 2002, 269 people have died in work place accidents in Victoria. The average penalty was $170,000. No one died at Essendon. No one was injured at Essendon. Yet Hird was forced to take a 12-month ‘holiday’. And let’s not forget that in the Essendon pecking order of responsibility, Hird comes in about thirteenth or fourteenth. If we throw in (although I think they should be thrown out) Demetriou, McLachlan and Andrew Dillon, who in their own words said they probably could have prevented the whole saga, and let’s not forget Brett Clothier and the Commissioners, all of whom were more liable than Hird, Hird wouldn’t get in the top twenty if fault were apportioned properly.
   
   ii. WorkSafe Victoria obviously thought so little of Essendon’s breaches of its responsibilities, it chose not to investigate Essendon. According to its written response to me it was prepared to leave it to ASADA. But ASADA was only empowered to ascertain whether infraction notices should be issued. Basically, WorkSafe Victoria was saying there was no reason to investigate Essendon.
   
   iii. It’s inexplicable that the AFL can impose such harsh penalties on Essendon when the AFL was equally responsible. Perhaps the AFL is concerned it failed to comply with AIS governance code and fears its government funding may be cut off if it fessed up to being as responsible for the OH&S breaches as Essendon. It’s wrong, and it’s unfair that Essendon was penalised and not Demetriou, McLachlan, Clothier and the Commissioners. The law is the law. There is no point anyone saying Hird should have known better about OH&S. But I will say the Essendon Board and the AFL should have known better.
   
   
5. The Media:
   
   i. It’s hard to imagine that the media has ever caused more damage to its reputation than it has during this whole sorry saga. The Australian Crime Commission lit the fire, Sergeant Schultz (Demetriou) poured on some petrol, and the media fanned the flames on an issue that judgment was never likely to be handed down for six months.
   
   ii. The media was totally irresponsible for only focussing on banned drugs were taken and continued to do so for six months. And after all that, no adverse findings have been made at this point. Recent polls suggest the media came in third last in the job respect totem pole – just below the ladies of the night and just above politicians and used car salesmen. The next poll should see it drop a little further.
   
   iii. Most people accept that 2013 was the worst year in AFL / VFL history. One assumes that this assessment was based on the negative media coverage and the severity of the penalties. The AFL kicked Essendon out of the finals and imposed the other harsh penalties. Hird had nothing to do with that. The media only wrote about the drugs and as it transpires, at this point in time, no infraction notices have been issued. As a matter of interest, I’d like to know if anyone has looked at the bottle used by their doctor to give them an injection. I haven’t.
   
   iv. To my knowledge no one has used the term OH&S in any article. No one has bothered to investigate where Hird fell in the OH&S responsibility order, let alone wrote about Essendon and the AFL’s OH&S responsibilities. A “word find check” on my computer on all my Essendon files indicates that no one has mentioned the OH&S Act.
   
   v. Last Friday (4 October) Adam Shand wrote a piece in the Australian newspaper claiming that Demetriou breached his legal obligations with respect to OH&S. Not one other paper ran with the same story after reading it in the Australian.
   
   vi. No one ran with the story over the weekend. That says it all.
   
   vii. No one even questioned whether Demetriou was entitled to sit on the jury to judge Hird.
   
   viii. No one from the media questioned Fitzpatrick about his dismissive comments about leaks.
   

I don’t know James Hird. But I always thought he came across as one of the most impressive Australian sportsmen, as a person, ever. It is a sad indictment on us as a country that someone who has given as much as Hird can be seen to be responsible for the worst season in AFL history. Nothing can be done about Essendon missing out on the finals but if the other penalties are not lifted it will be because the media is gutless and the Essendon Board is incompetent or frightened of the other clubs.

Time has proved it was wrong to sacrifice the rights of sexual assault victims to protect the churches. Time has proved it was wrong to sacrifice the safety and rights of women and children in aboriginal communities just to stop rednecks being given ammunition to support their shabby prejudices. Unless we are at war, individual rights must be protected at all costs. James Hird should not have been sacrificed to cover up AFL negligence or apathy, or to ingratiate itself to the government.

Demetriou has made an extraordinary number of mistakes and should resign or be sacked. The AFL should acknowledge its role in this saga and retract all penalties.

Bruce Francis – 5 October 2013