1. The WADA/ASADA Code included a clause that said if a non-medical doctor (such as Stephen Dank) had previously supplied a member of the public (such as a crippled eighty-year-old with a banned WADA substance), that person (Dank) was prohibited from working with a WADA affiliated organisation (AFL) or athlete.
   
   
2. Clearly, the AFL breached the WADA Code by employing Stephen Dank at the Gold Coast Suns prior to him joining Essendon. Furthermore, the AFL breached the code by registering Dank to work at Essendon. Res ipsa loquitur, if the AFL hadn’t breached the code, the whole Essendon Saga would not have occurred.
   
   
3. The AFL’s general counsel Andrew Dillon arguably failed to ensure the AFL acted lawfully.
   
   
4. The AFL jeopardised the health and lives of the Essendon players by not warning them that they may have been taking dangerous life-threatening supplements.
   
   
5. The AFL never developed proper Terms of Reference for the investigations.
   
   
6. The AFL indulged in what most people would call “Match Fixing” on 9 February 2013 when it agreed on the result of the investigation four days before the first witness was interviewed. Match fixing in cricket results in gaol. Match fixing in tennis has resulted in a twenty-year ban.
   
   
7. The AFL defrauded Essendon of $2 million.
   
   
8. The AFL defrauded Essendon members by selling seats to the 2013 finals-series in which Essendon was certain to qualify but it had already decided to ban Essendon from playing in the finals.
   
   
9. The AFL denied Essendon, Hird, Thompson and Corcoran procedural fairness
   
   
10. The AFL breached its own OH&S responsibilities
    
    
11. The AFL conspired with ASADA, Gillard Government and the Essendon board to breach the WADC – no fault clause.
    
    
12. The AFL corrupted the evidence.
    
    
13. The AFL Commissioners were in breach of directors’ responsibilities.
    
    
14. The AFL bullied and blackmailed ASADA.
    
    
15. The AFL bullied and blackmailed Essendon into accepting guilty findings and punishment.
    
    
16. The AFL was guilty of lying in order to conceal their unlawful activities.
    
    
17. The AFL failed to fulfil its responsibilities and therefore should itself have been investigated. As the subject of an investigation, it could not and should not have been an investigator, and therefore, ASADA could not have used the AFL’s powers to force players to give evidence. This was an illegal use of AFL powers to compel the players to give evidence and in a way which ensured that in total breach of ASADA protocols, it would be made public.
    
    
18. Improper use of AFL powers to compel production of evidence: Prior to the commencement of the amendments to the ASADA Act on 1 August 2013, ASADA did not have powers to compel persons to attend interviews or to produce documents as part of an investigation. In contrast, as part of the AFL Player Rules and the AFL Regulations, the AFL at all relevant times had such powers in respect of AFL club players and personnel.
    
    
19. Although Justice Middleton ruled that it was within the law for ASADA to have relied upon the AFL’s powers to gather evidence in carrying out the investigation, AFL players should not be investigated differently from other sportspeople by ASADA in any material respect. By relying upon evidence that ASADA itself did not have the power to gather, this is precisely what took place. And the AFL is to blame.
    
    
20. The joint investigation enabled ASADA to gain access to documents the Act said it wasn’t entitled to. For example, ASADA gained access to 98,000 SMS texts and emails. Given the ‘Niagara Falls’ size waterfall of leaks from the investigation, it is frightening what personal information the investigators acquired and passed onto mates from those SMSs and emails.
    
    
21. The irony of the joint investigation is the ASADA investigators castigated Essendon for allegedly pushing the boundaries but the AFL allowed ASADA to push beyond the boundary to gain access to documents the Act prevented it from having.
    
    
22. As it transpires, in reality, the joint investigation was a façade. It was fraudulent behaviour which enabled ASADA to circumnavigate the law. As an example of the façade, the Interim Report was written solely by ASADA staff and included 277 questions asked by ASADA and only four asked by AFL investigators. One of those questions asked by the AFL representative was a deliberate ploy to shift the blame from the General Manager – Football Operations, Paul Hamilton to Hird. The AFL stated on a number of occasions that they were assisting ASADA. Assisting is substantially different from running a joint investigation with ASADA.
    
    
23. Subterfuge / Misrepresentation: According to ASADA, “The investigation has sought to establish whether players and support persons from Essendon Football Club used substances or engaged in methods prohibited by the World Anti-Doping Authority (WADA) and the AFL’s Anti-Doping Code.” If this were the only objective there was no reason for the AFL to be involved in a joint investigation because ASADA had the expertise to investigate possible drug violations.
    
    
24. The ASADA Act is very strict in defining what tasks it can undertake. Clause 4.1 of the AFL Anti-Doping Code states “Under the ASADA Act and the NAD Scheme established under that Act, ASADA has the legislative authority to ‘investigate possible violations of the anti-doping rules under the ASADA Act and the NAD Scheme for Players and Officials under the jurisdiction of the AFL’”.
    
    
25. ASADA allowed itself to be manipulated by the AFL and broadened its investigation to not only cover subjects that were never envisaged by the Act but subjects which were outside ASADA’s area of expertise. Without informing anyone, and without even acknowledging it in its Interim Report, ASADA and the AFL widened the investigation to ascertain:

• Whether Essendon breached its duty of care to provide a safe workplace for its players;

• Who was responsible if indeed Essendon had failed to provide a safe workplace for its players;

• Whether Essendon disregarded standard practices involving its human resource department when employing [Dean] Robinson and [Stephen] Dank.

26. At no stage did ASADA or the AFL acknowledge the additional objectives of its investigation, although a large part of the Interim Report is devoted to them. In agreeing to operate outside its charter, and in agreeing to investigate who was responsible if Essendon had failed to provide a safe workplace, ASADA inadvertently, created the opportunity to expose the previously protected Essendon board and the AFL for major failures.
    
    
27. The Victorian Occupational, Health & Safety Act proclaimed that the Essendon board was most responsible for providing a safe workplace at Essendon. The AFL’s two agreements with Essendon, the bi-lateral agreement to play in the competition, and the tripartite agreement between the AFL, Essendon and each player, required it do everything possible to ensure Essendon provided a safe workplace. Ironically, widening the investigation by stealth exposed huge responsibilities for the AFL, which it failed to fulfil.
    
    
28. Procedural Fairness and Improper Practices: On 7 October 2010, Chief Justice of the High Court of Australia, Robert S French, delivered the Sir Anthony Mason Lecture at The University of Melbourne Law School, Law Students’ Society. The subject was: Procedural Fairness – Indispensable to Justice? Inter alia, French said:

‘Procedural fairness is part of our cultural heritage. It is deeply rooted in our law. It lies at the heart of the judicial function and conditions the exercise of a large array of administrative powers affecting the rights, duties, privileges and immunities of individuals and organisations. As a normative marker for decision-making, it predates by millennia the common law of England and its voyage to the Australian colonies.’
In his conclusion, the Chief Justice said: “The concept of procedural fairness has its origins in the natural law which informed the development of the rules of natural justice as part of the common law of England. Its scope has broadened, then narrowed, then broadened again, through its history. Despite incidents of legislative exclusion, procedural fairness is alive and well today in Australia. There is little doubt that the norms of procedural fairness reach well beyond the confines of the courtroom in judicial proceedings or judicial review of administrative decisions. They are important societal values applicable to any form of official decision-making which can affect individual interests. I do not think it too bold to say that the notion of If the notion of a ‘fair go’ means anything in this context, it must mean procedural fairness would be widely regarded within the Australian community as indispensable to justice that before a decision is made affecting a person’s interests, they should have a right to be heard by an impartial decision-maker.”

29. The AFL had an unacceptable conflict of interest the moment ASADA agreed to widen the investigation to ascertain whether Essendon provided a safe workplace and who was responsible. As it was impossible to assess Essendon’s degree of responsibility, without assessing the AFL’s responsibilities, even Stevie Wonder could see it was essential that the investigation was completely independent of the AFL. Any investigation that involved the AFL as investigators meant that there would be a conflict of interest, which would not only deny Essendon procedural fairness (natural justice) but would compromise the integrity of the investigation. Most importantly, ASADA could not have used the AFL’s powers to force players to give evidence. This was an improper use of AFL powers to compel production of evidence
    
    
30. The AFL commissioners had onerous statutory obligations under the Corporations Act. Simply put, the AFL had similar occupational, health and safety, and duty of care responsibilities, to each player at Essendon as the Essendon board. AFL chief executive, Andrew Demetriou, acknowledged this when he said: ‘The AFL has a duty to all its stakeholders that we look after our players.’ Sadly, Demetriou did nothing.
    
    
31. There is no doubt the AFL failed to meet those OH&S and duty of care responsibilities, but with respect to determining whether there was a conflict of interest in having a joint investigation with ASADA, it is irrelevant. For a conflict of interest to exist, all the AFL needed was to have OH&S and duty of care responsibilities to Essendon and its players.
    
    
32. To determine the extent of Essendon’s alleged governance and OH&S failures, and to ascertain whether there were any mitigating circumstances which would reduce penalties, the AFL should have been investigated along with Essendon and its officials. Participating in a joint investigation with ASADA, not only enabled AFL officials to avoid being questioned, but made it impossible to ascertain whether the AFL was culpable. Inexplicably, at no stage were the AFL’s governance and OH&S obligations scrutinised by ASADA or Ziggy Switkowski, nor was its compliance.
    
    
33. Demetriou, AFL deputy chief executive, Gillon McLachlan, former general manager – football operations, Adrian Anderson, integrity manager, Brett Clothier and medical officer, Dr Peter Harcourt, should have been compelled to give evidence to help ascertain whether they did everything possible to not only protect the integrity of the competition, but whether they did everything possible to ensure the AFL and Essendon fulfilled its duty of care to the players.
    
    
34. Inexplicably, ASADA allowed AFL Integrity Manager, Brett Clothier, to perform the dual roles of witness and investigator, which posed an unacceptable conflict of interest.
    
    
35. Inexcusably, AFL media officer, James Tonkin, was given access to the evidence from the investigation and used it in public statements in an attempt to exonerate Demetriou and denigrate Hird. This was a conflict of interest and it compromised the integrity of the investigation.
    
    
36. The joint investigation gave the AFL access to all witness statements which enabled it to leak with the ferocity of Niagara Falls. Participating in the joint investigation also put the AFL in a position where it could steer the investigation away from itself as well as influencing the timing of the release of the report and the contents of the report. It also gave the AFL an opportunity to defend Essendon football department manager, Paul Hamilton, and deceitfully shift the blame to James Hird and Mark Thompson.
    
    
37. One of the key incidents that highlighted the conflict of interest was the dispute (lies) over whether Demetriou tipped off Essendon chairman David Evans that the Australian Crime Commission was about to expose Essendon for having breached the AFL’s anti-doping code.
    
    
38. Demetriou and Evans denied that he did. Hird claimed that he did. ASADA didn’t even bother to question the other witnesses, Danny Corcoran, Dr Reid and Ian Robson, which was indicative of its bias. Once, AFL Chairman, Mike Fitzpatrick, learnt that Demetriou’s and Hird’s honesty was in dispute, he should have withdrawn the AFL from the joint investigation because of the conflict of interest.
    
    
39. Failed to monitor compliance with Clause 7.4. Clause 7.4 states, ‘Before the commencement of the AFL Competition in each year each Player must advise his Club Medical Officer in writing of all substances and medications he is taking or using or has taken or used since the last Match in which the Player participated in the previous year. The Player must promptly advise his Club Medical Officer in writing of all substances and medications he subsequently takes or uses during the AFL competition in that year. Each club medical officer must maintain and keep a written record in respect of each Player of all substances and medications so advised to him. Such records will be the property of the club.’
    
    
40. If each club, including Essendon, complied with this rule, and if the AFL weren’t too lazy or too apathetic to ensure compliance with this rule, it is most unlikely there would ever be an anti-doping problem. Dr Reid obviously failed to fulfil his responsibilities. His immediate superiors, high-performance coach, Dean Robinson, general manager – football operations, Paul Hamilton, and chief executive, Ian Robson, also failed to fulfil their responsibilities. AFL chief executive, Andrew Demetriou failed to fulfil his responsibilities by not having procedures in place to ensure compliance with this most crucial anti-doping clause. Undoubtedly, the most culpable was AFL integrity manager, Brett Clothier, who it appears didn’t monitor compliance by any club.