Ironically, the investigation should have been aborted for unlawful behaviour by ASADA and the sports minister Senator Kate Lundy, and/or her representatives before the first witness was interviewed on 13 February 2013.
The Sport Integrity Australia Act 2020 – Sect 24states that:
(1) The 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. For example, the Minister can instruct the CEO to donate $130,000 to WADA to run an appeal
(2) However, such a direction must not (my emphasis) relate toa particular athlete, or a particular support person or a particular non – participant, who is subject to the NAD scheme;Clearly, this means that neither the Minister nor her representatives could lawfully be involved in the investigation of the Essendon players.
On 9 February 2013, one of the most shameful meetings in Australian sporting history took place at ASADA’s Canberra headquarters. Essendon chairman David Evans and chief executive Ian Robson attended the meeting with ASADA’s chief executive Aurora Andruska, chief operating officer Trevor Burgess, general manager of anti-doping programmes and legal services Elen Perdikogiannis, director of intelligence and investigations Paul Simonsson, AFL’s Gillon McLachlan and Brett Clothier, and Richard Eccles from Senator Kate Lundy’s office.
In what constitutes unlawful gross misconduct by the minister’s representative, during the meeting, Eccles asked McLachlan what he wanted from the investigation. The joint investigation had nothing to do with the government and Eccles should not even have been at the meeting.
Eccles presence was clearly in breach of Section 24 (2) of the ASADA/Sport Integrity Australia Act 2020. Here, we had the Prime Minister’s senior sporting bureaucrat not only denying Essendon and Hird procedural fairness but corrupting the investigation.
Incomprehensively, during the meeting, Eccles asked McLachlan what result he wanted from the investigation. According to Andruska’s meeting notes and her subsequent affidavit, (Source: ASA.0032.0149, affidavit exhibit AA-2), McLachlan said: Come to arrangement. Players found to be innocent. This is the outcome [I want]. Sanctions against Essendon. [The Essendon club] held responsible. Hold individuals [coaching staff] accountable.”
My legal adviser, a former Supreme Court judge and KC, advised me that this was a possible criminal conspiracy.
David Evans and Ian Robson, in their capacity as Essendon board members, endorsed all McLachlan’s demands. The decision was subsequently endorsed by the Essendon board. The bottom line was Evans agreed to sacrifice the innocent Hird to protect the AFL Commissioners, the Essendon board and the players.
Although ASADA was an independent statutory body, the Gillard government interfered with its operation on numerous occasions. As veteran broadcaster Tim Lane pointed out in an interview with AFL CEO Gillon McLachlan in 2016, “What the AFL and the Gillard Government was attempting to do to influence ASADA was no different from what the Russian government was doing.”
Deciding the outcome prior to the first witness being interviewed was arguably no different from match fixing. In cricket, match fixing results in gaol.
Richard Eccles compounded the misconduct and contamination of the investigation by telling the attendees that the Prime Minister wanted the matter to end.
Res ipsa loquitur, that the Prime Minister’s representative, senior ASADA and AFL executives having established the result of the investigation before it started, meant that the investigators could not have conducted the investigation with an open mind, and consequently, no information or evidence they provided to support their findings can be considered untainted.
Specifying the AFL’s desired outcomes, including who would be found culpable, is yet another factor in the early corruption of the process that made any findings of the investigation both unfair and unsafe.
On 13 February 2013, Richard Eccles informed ASADA’s lawyers in writing that “he had told AFL deputy chief executive Gill McLachlan that if the anti-doping body took a view that a player took a banned substance but was not at fault, the AFL Tribunal would view things in a certain light, and it is as locked in as it can be”. (Source: ASADA: 0001: 0342).
Although, Andruska believed a ‘no fault or negligence defence’ was not an option for the players, the AFL, the government’s Richard Eccles and ASADA’s director of investigations Paul Simonsson did not accept Andruska’s position.
On 13 February 2013, Simonsson sent an email to the AFL’s Brett Clothier in which he stated that “ASADA and the AFL will fully explore all avenues in an attempt to provide substantial assistance to a no fault or no negligence defence”.
The AFL, Simonsson and Eccles’ view held sway at this time, even to the point of a written agreement from ASADA to this effect. It is incomprehensible that not only was the AFL’s deputy chief executive Gillon McLachlan prepared to exonerate the players at this point, but that ASADA’s director of investigations was also prepared to do so. This was the most senior ASADA investigator prepared to participate in a corrupt investigation, and to even be a player in the corrupting of the process.
It was one thing for the Gillard government, ASADA, and the AFL to run a corrupted investigation but here we had the prime minister’s representative implying that the two judges and the barrister who were to sit on the tribunal would determine as the AFL wished them to.
It was unlawful for Prime Minister Gillard to interfere with a statutory body and ASADA officials knew it was unlawful and should have forbidden Eccles’s involvement. Andruska should have abandoned the contaminated investigation at this point, and made a formal complaint regarding government interference.
On 20 February 2013, ASADA’s director of investigations, Paul Simonsson, and ASADA lawyer Darren Mullaly attended the Essendon club and spoke to the players and other EFC personnel en masse. Simonsson read from a prepared statement and handed out a document. Inter alia, the document said: “… ASADA will explain to the players that these are exceptional circumstances and the defence of no fault or negligence may be available. It will be explained to players that under a no fault or negligence defence a player can receive a complete elimination of sanction. Where a player does come forward and provides a sworn statement regarding his involvement and the involvement of any other person, ASADA will fully explore all avenues in an attempt to provide a no fault or negligence defence was substantial assistance.” (Source Chip Le Grand ‘The Straight Dope’). In making this promise, and without even having interviewed the players, ASADA was abrogating one of its major responsibilities, which was to penalise athletes who took WADA prohibited substances.
When John Marshall, ASADA’s long-term senior counsel became aware of the letter Paul Simonsson read to the players on 20 February 2013, he told ASADA that what the letter promises is in breach of the World Anti-Doping Code and ASADA must renege. ASADA, now in a difficult position of its own making, at first refused. Marshall resigned. [Source: Chip Le Grand – The Straight Dope]
Aurora Andruska testified before Justice Middleton in the Federal Court in August 2014 that: “By June 2013, ASADA was coming under pressure from the relevant Commonwealth Minister Kate Lundy to reach some form of conclusion, or ‘an outcome from the investigation’.” (my emphasis).
Such interference from Senator Lundy’s office corrupted the investigation and denied procedural fairness to Essendon and individuals under investigation. Andruska should have formally protested Senator Lundy’s pressure. Whether Andruska capitulated to Lundy’s demands or not, it is clear from (the clause below) that she felt the pressure. Justice must be done it must also be seen to be done.
On 4 June 2013, Andruska and ASADA’s Elen Perdikogiannis spoke to Glenys Beauchamp, deputy secretary Department of Sport. The handwritten notes taken by Perdikogiannis record the following: “9.00am conversation with Glenys Beauchamp [Secretary, Department of Regional Australia, Local Government, Arts and Sport] with AA [Aurora Andruska]. Clear instructions from Min [Minister Lundy] – her colleagues at her, accusing her of hampering chances of re-election – you need an outcome. Heightened levels of anxiety by AA [Aurora Andruska] and Elen gets emotional as well”. Big business sponsors, Australia’s reputation, etc. Min [Lundy] has put it on Glenys.
Andruska said the minister was demanding no players be sacked. According to court documents Andruska’s notes of that 4 June meeting said: “Lundy needs something – (a) deal with AFL; support staff sacked; points [taken] off [Essendon]; players off.” It is impossible not to see this meeting as anything other than the Gillard government, the AFL, and ASADA corruptly conspiring to find Essendon, Hird, and support staff guilty and for them to be harshly penalised.
On 5 June 2013, ASADA’s Staffer 5, expressed concern that Andruska was serving the “political agenda of others” (my emphasis).Justice must not only be done it must be seen to be done. When an ASADA executive implies ASADA’s chief executive is guilty of what amounts to misconduct, it is impossible to accept justice was done. Any evidence provided to support findings in the investigation was tainted and should be declared unsafe and therefore inadmissible in this or any other jurisdiction.
ASADA chief operating officer Trevor Burgess told the Federal Court he received a briefing on 13 June 2013 from Richard Eccles about an AFL plan to take action against the club staff and suspend Hird for at least six months (my emphasis). ‘Ducks all lined up’ notes Burgess. [Source: Trevor Burgess’s diary notes from his 13 June 2013 conversation with Richard Eccles, which were tendered to the Federal Court on 13 August 2014, VID No. 327 of 2014.]
This was an extraordinary situation. The ASADA/AFL investigators were being usurped by ASADA, AFL and government officials who should never have been involved in the process once the investigation commenced.
During a conversation between Andruska and McLachlan on 26 June 2013, the ASADA head noted McLachlan’s comments as follows:
“Take points off Essendon – if High Court [challenge], we need all the detail to get through that;
“Problematic if not full report;
“Get outcome we need;
“Take bits out that might compromise what we need (my emphasis).”
Andruska attended a meeting with AFL officials Demetriou, Clothier and senior counsel Andrew Dillon on 24 July 2013. Demetriou stated that “two or three things cannot afford to be made public” (my emphasis).
Andruska told the Middleton Federal Court that at one meeting, David Lording, a corporate and government communications consultant brought in to advise ASADA, said Senator Lundy needed a deal with the AFL and ASADA to relieve political angst created by her decision, along with then Justice Minister Jason Clare, to invite sports chiefs to attend a 7 February release of the ACC report. This suggests Ministers Lundy and Clare regretted their stage-managed over-the-top, damaging, media conference with the ACC, the AFL and the NRL on 7 February 2013 and they needed a deal with ASADA and the AFL to get the government out of trouble. The ‘deal’ corrupted the investigation resulting in a denial of procedural fairness to the Essendon club, James Hird, other support staff and, as it has now transpired, the players. (Source Chip Le Grand ‘The Straight Dope’)
Andruska was asked to explain why, given ASADA’s statutory obligation to operate independent of government, Gillard government officials were routinely present during meetings and telephone hook-ups throughout the investigation. She couldn’t explain.
This was a clear admission by Andruska that ASADA failed to fulfil its statutory obligations. Accordingly, the investigation should have been declared null and void and WADA should not have been allowed to submit to any jurisdiction any of the supposed ‘evidence’ collected or provided by ASADA to support its unsafe findings.
Justice John Middleton asked Andruska whether it was unusual for her to be at a meeting with the minister, her press adviser and the head of a sporting body. “Yes, it was,” she said. One would hope it was unusual, as in participating in these meetings she was operating outside her statutory obligations to be independent of government, or any other external influences.
The court was told that Richard Eccles, then serving Sports Minister, Kate Lundy as a deputy secretary within the department of regional Australia local government parks and sport had a “persisting involvement” in the investigation from January 2013 until August 2013.
Furthermore, Andruska told Justice Middleton that Richard Eccles, had been at several meetings involving the AFL, ASADA, the ACC and the government. In allowing these meetings and especially allowing Eccles to participate in such meetings Andruska clearly breached ASADA’s obligations, and denied Essendon and individuals under investigation procedural fairness.
Andruska recounted to the Middleton Federal Court former sports minister Kate Lundy’s determination to strike a deal to punish Essendon. Andruska’s comments revealed the level of political involvement in the ASADA and AFL’s joint investigation of Essendon.
In allowing the interference, she permitted ASADA to breach its statutory obligations. The deal between ASADA, the government and the AFL facilitated the AFL imposing grossly onerous penalties on the Essendon club and Hird, with lesser penalties on other support staff. Inter alia, Essendon was fined $2 million. And none of this resulting from a charge of administering banned substances, but rather on a charge of governance failures. It could be argued that the deal enabled the AFL to improperly obtain $2 million from the Essendon club.
The statements made on 7 February 2013 by Justice Minister Jason Clare and Sports Minister Kate Lundy were made for political purposes and caused enormous damage to Australia’s sporting reputation.
In coverage of the media conference, the Age newspaper stated: “The links may have resulted in match-fixing and fraudulent manipulation of betting markets – and it was hopeful criminal charges would be laid.”
None of the ACC, Jason Clare and Kate Lundy’s outrageous claims came to fruition.
Preventing unlawful government interference notwithstanding, in the first instance, the investigative process to determine the players’ guilt involved ASADA proving that Essendon sports scientist Stephen Dank or Essendon Football Club took possession of Thymosin Beta-4 in 2011 or 2012.
As it transpired, ASADA admitted that there was no evidence that Dank or Essendon ever took possession of Thymosin Beta-4. There were no orders; no delivery records; no invoices; no payments; and, no dispensing records.
Furthermore, in clause 93 of his 11 January 2015 affidavit, Staffer 7 said: “The key question is what was the source of the Thymosin; and when (if at all) (my emphasis) it was delivered – and in what coloured vial?”
Clearly, Staffer 7’s comment “if at all” implies ASADA had no evidence that Thymosin of any variety was ever delivered to Dank or Essendon.
Res ipsa loquitur, if there were no evidence that either Stephen Dank or Essendon took possession of Thymosin Beta-4, the saga should have ended when ASADA delivered the Final Investigation Report on 4 March 2014.
Incomprehensively, despite no player testing positive to Thymosin Beta-4, and despite there being no evidence that either Stephen Dank or Essendon took possession of Thymosin Beta-4, ASADA under its new chief executive Ben McDevitt appealed to the Anti-Doping Review Violation Panel.
Clearly, ASADA’s task of convincing the ADRVP that it was possible the Essendon players were administered Thymosin Beta-4 was a tougher campaign than Christ had over two thousand years ago when he turned water into wine and bread crumbs into bread loaves to feed 4000 people.
Essendon AFL Drug Saga 