Justice for the 34 ask Shorten: Are all Australians happy with this new low standard of proof?
JUN 20, 2017 — The Justice of the 34 Group issued a letter to the Leader of the Opposition Bill Shorten on 1 June 2017. Here is an extract:
The Honorable Bill Shorten
Leader of the Federal Opposition
Parliament House Canberra 2601
Dear Mr Shorten
Senate Inquiry into Sports Anti-Doping
We are writing to you to reaffirm our previous request for a Senate Inquiry into Sports Anti- Doping in Australia. I apologise that I was not able to attend the meeting with you on April 27. I was in France to honour my grandfather. Those who fought at the Somme fought for principles. They fought for a fair go including the right to a fair trial and the right to appeal to Australian courts. These rights were denied to the Essendon players. The players were wronged.
The Labor Party has long recognised that to move forward it is necessary to look back. Over its long history, the Party has represented the rights of those who have been wronged. It is now time to act consistent with your history. The abrogation of the players’ rights must be addressed if a fair anti-doping regulatory framework is to be established in Australia. We cannot go forward, nor will we ever be able to go forward, until the wrong is righted. An open Parliamentary inquiry, allowing all parties to have their say without encumbrance, is in the interest of all athletes and all future athletes. An inquiry can lay the foundation for a transparent and accountable anti-doping regulatory framework of the future.
The Federal Minister for Health and Sport Greg Hunt, in contrast, has foreshadowed a consultative process. The process allows individuals and institutions to make submissions on a proposed National Sports Plan which includes a National Integrity Tribunal. The Tribunal would be on an opt-in basis and not override existing tribunals such as the AFL Tribunal. It would be the national equivalent of the Court of Arbitration of Sport (CAS), with an option to appeal to the CAS. The consultative process does not allow for testimony or open questioning. It is a non-transparent process designed to cover-up the failures of the past. As the authoritative UK website Sports Integrity Initiative (http://www.sportsintegrityinitiative.com/australia-considers- national-integrity-tribunal-sport/) has notedL
“Hunt’s call for a National Integrity Tribunal for Sport is an admission that the outcome of the Essendon supplements case was not a satisfactory one.”
However, Minister Hunt’s proposal is flawed. As we previously indicated, there is considerable concern internationally as to the operation of the World Anti-Doping framework. The US and UK are now conducting open Congressional and Parliamentary inquiries. The framework is under scrutiny because of conflict of interest, evidentiary standards and the rights of athletes. Yet Australia, with the one of the most anomalous anti-doping cases of all, has no inquiry.
The most significant conflict of interest relates to the Court of Arbitration of Sport. In the Essendon matter, two of the three panellists on the CAS tribunal were WADA registered legal representatives. They were not independent of WADA and could never have been so regarded. Effectively, WADA was appealing to WADA itself. In contrast, the AFL Tribunal which cleared the Essendon players consisted of two former county Court judges and a senior barrister. Their independence was self-evident; they applied the evidentiary standards we expect in judicial and quasi-judicial processes. Their independence should never have been questioned. Their judgment should never have been appealed.
The CAS used non-analytical evidence to determine their findings; principally text messages. In contrast the AFL Tribunal considered documentary evidence, testimony and the lack of positive tests. The AFL Tribunal weighed evidence as we expect it to be weighed; in contrast the CAS was selective. Only some text messages were considered so that a program implemented at the Melbourne Football Club with similar text messages was not referenced. We have estimated that the probability that the Essendon players were administered with the banned substance Thymosin Beta 4 to be no more than 20%. The CAS lowered the bar so low that innocence could almost not be proven. If a National Integrity Tribunal were based on the CAS model, would Australians be comfortable with a standard of proof so much lower than other Australian jurisdictions?
The Hunt proposal is flawed because it does not address the principal problem. That problem is ASADA. ASADA chose to conduct a joint investigation with the AFL, chose to release an interim report, chose not to appeal the AFL Tribunal decision directly but instead the mechanism of a de novo action using WADA to appeal to the CAS. The imperative of the Essendon case is that ASADA and the ASADA Act of 2006 must be reviewed. The Hunt proposal for a consultative process with a new Tribunal will not permit that. The Hunt proposal is designed to move the regulatory framework on but not address the failure. A proper regulatory framework can never be established unless regulatory failure is addressed and corrected. We must learn from failure so that it is not repeated.
We reiterate the suggestions of our previous letter
(i) To codify the common law rights of athletes in the ASADA Act.
(ii) To amend the ASADA Act so athletes have a right of appeal to Australian courts.
(iii) To examine the ASADA Act and its implications for team sports.
(iv) To make ASADA accountable to a Standing Committee of the Parliament.
We trust that you will consider these matters carefully.
Dr Kim Sawyer
Justice for the 34
Innocent or guilty, Justice for the 34 just we want these players to receive a fair go.
Below, Richard Di Natale calls for a Senate inquiry into Australia's anti-doping framework because it is failing players, failing fans and has failed everyone who wants to participate in sporting activities.
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