Essendon’s miscarriage of justice goes from tragedy to farce
ALLAN HIRDThe Australian12:00AM April 1, 2017
Essendon’s miscarriage of justice at the hands of ASADA, the AFL and two ministers for sport, Kate Lundy and Sussan Ley, just went from tragedy to farce this week with the AFL clearing itself of any wrongdoing.
As a friend suggested, an anonymous AFL review cleared the AFL of its role in the ASADA Essendon investigation. That is about as credible as a schoolkid forging his mum’s writing to explain why he didn’t do his homework properly.
The Australian ’s Patrick Smith’s column on the issue (“Tough Luck if you thought the AFL got it wrong with Essendon”) was meant to be an ironic response to the AFL clearing itself but provided no insight or balance. But I guess irony is the best one can expect from one of the leaders of the media pack that pursued Essendon based on selective leaking from the AFL.
The AFL’s exoneration of itself does not include basic information such as who the authors were, what the terms of reference were and who was interviewed.
There is of course much, much more to be told than the AFL wants exposed. There is plenty of information in the public domain to contest the AFL’s view it treated Essendon appropriately. Chip Le Grand’s excellent book, The Straight Dope, the transcripts of the Federal Court case Hird v ASADA and numerous pieces by Le Grand in The Australian and Michael Warner in the Herald Sun have revealed the AFL as a manipulative, bullying and untrustworthy organisation.
In January 2013, the AFL did a deal with ASADA and the Gillard government to enable ASADA to use the coercive powers in the AFL player contracts to compel Essendon players to answer questions.
The ASADA act is intended to protect the rights of athletes so that they get a fair hearing. The parliament included a provision so that athletes were not forced to incriminate themselves. Yet here we have the AFL deliberately and consciously taking away a right provided to its employees, the players, by the parliament.
Why is this such a big deal? Well, first it subverts the will of the parliament and undermines our democracy. Second, the player contracts included a clause that they would be subject to WADA/ASADA requirements, which included protection from self-incrimination in the ASADA act. Or so the players and the parliament thought. Little did the players know that their employer, the AFL, was a ruthless organisation with little respect for process or individual rights.
Former AFL chairman Mike Fitzpatrick wrongly claims the Federal Court cleared the AFL’s joint investigation with ASADA. It did no such thing and indeed it could not. The Federal Court has no jurisdiction over the AFL.
Justice John Middleton’s decision depended, in fact, on a narrow reading of the way the AFL and ASADA conducted the investigation. The ruling found the investigation belonged to the AFL, and ASADA merely sat in the same room as a witness while the AFL interviewed the Essendon players and officials. The effect of Justice Middleton’s judgment stripped the players of two basic rights enshrined in the ASADA act by the federal parliament: the right to not self-incriminate; and the right to confidentiality while being investigated.
Anyone who saw, listened to or read the media in 2013 would be aware the players and staff were denied confidentiality. The Australian Federal Police investigated whether ASADA was the source of the leaks and cleared it. The players and staff would hardly leak information damaging to themselves. That leaves the AFL as the likely source. It beggars belief that in 21st-century Australia an employer would get away with treating its employees so badly.
But the impact of Justice Middleton’s decision is far wider than Essendon. Every Australian athlete is now not protected from self-incrimination and does not have the right to confidentiality. That remains so unless the government tightens the ASADA act to ensure that it reflects the wishes of parliament. The AFL has weakened the rights of athletes and undermined the principle of a fair go.
Federal Sports Minister Greg Hunt could restore these rights by amending the act. The Greens would no doubt support the amendment bill.
What the AFL self-exoneration is silent on is procedural fairness.
The AFL’s actions in relation to Essendon are a classic example of how not to run an investigation if the facts are important, conflict of interests are to be avoided and individual rights protected.
We can only take the AFL’s word that the investigation, charging, prosecution and judgment of Essendon were conducted separately and independently of each other. But from what has been revealed, Andrew Demetriou, Gillon McLachlan, Fitzpatrick and Andrew Dillon have their fingerprints all over those four crucial steps that led to Essendon being fined $2 million and kicked out of the finals and the coach being stood down for a year.
The Australian legal system has the police investigate and charge, the deputy public prosecutor prosecute and the court adjudicate and determine the penalty where guilt is proven. In most criminal cases the penalties are far less severe than those imposed on Essendon and its staff.
The AFL did not run a fair process and for it to claim it did shows how arrogant it is and how out of touch with community expectations it has become. The Australian sporting public believes in a fair go and the AFL is a ruthless beast that devours its own when threatened.
It beggars belief that the 18 AFL clubs allowed the AFL to be investigator, prosecutor and judge and jury of Essendon.
Will the clubs let the AFL get away with investigating itself and clearing itself? For the good of the game, I would hope not.
Allan Hird is the father of former Essendon coach James Hird.