Mcdevitt says AFL tribunal just got it wrong

[jenny61_99]

..oh, I don't know, Jen. If you read between the lines, I think a certain former P.M 's COS role extended to more than just taking dicktation.(sic) And just to be bipartisan, on a recent visit to old Parliament House, I couldn't help think that 'ol silver tail gave more than the odd autobiography in his private en suite!

Oh there's some stories I could tell you!

 

[ThirtyFive]

Oh there's some stories I could tell you!

I could well imagine. There's certainly some CRED in Tony!

 

[ThirtyFive]

I could well imagine. There's certainly some CRED in Tony!

..or vice versa, depending upon your perspective!

 

[jenny61_99]

I could well imagine. There's certainly some CRED in Tony!

Not sure about these modern day peckers... but boy the parties they used to hold in private secretaries offices! The only saving grace is that there was no such thing as mobile phones nor instagram! Hell they'd barely got a fax machine (the old reel ones where you actually had to be there to receive it!). There'd be whispers in the press gallery, but there they'd stay.

 

[Just interested]

The reason I'd dug out the aforementioned Middleton summary was to see what Middleton had said on the issue of self incrimination, given the route travelled by the whizzkids from the Senate last week, and subsequently latched on to by the odd Doper devotee in these pages.

My reason for doing so was I didn't believe the protection against self incrimination was absolute, able to be applied in precisely the same manner in all types of matters (e.g. criminal vs civil, irrespective of binding contracts) or could be plucked from thin air at any point subsequent to, and irrespective of, earlier steps and how they had been conducted.

Middleton's summary (15 i is vital, as highlighted):

"15 (d)In light of ASADA’s statutory responsibilities, upon becoming aware of possible anti-doping violations, ASADA would have investigated Essendon, its players and personnel (and probably other clubs) with or without the co-operation of the AFL.

(e)ASADA would have decided to investigate Essendon, its players and personnel (and probably other clubs) without recourse to the AFL’s contractual powers to compel Mr Hird and the 34 Players to answer questions and provide information as requested by the AFL.

(f)Although Mr Hird publicly supported for the “joint investigation”, privately he did not, but was motivated to co-operate with ASADA and the AFL in the best interests of Essendon and its players.

(g)Nevertheless, Essendon, Mr Hird and the 34 Players all co-operated because of their contractual obligations to do so, which required them to attend interviews, answer questions and provide information to the AFL, and to co-operate with ASADA.

(h)Mr Hird and the 34 Players, under their contractual obligations were required to answer questions of, and provide information to, the AFL subject to a limited right to claim the privilege against self-incrimination.

(i)Mr Hird and the 34 Players were legally represented at all relevant times, co-operated with the investigation, did not claim to exercise the privilege against self-incrimination, and provided information:

(i)in respect of the interviews directly to the AFL and ASADA; and

(ii)in respect ofother information provided at the request of the AFL, directly to the AFL which was then passed on to ASADA.

(j)The information provided at the interviews by Mr Hird and the 34 Players was simultaneously divulged and communicated to the personnel of both the AFL and ASADA, who were present in the interview room."

There are some other points relevant to self incrimination made by Middleton elsewhere in his summary, but the nutshell is above:

http://www.judgments.fedcourt.gov.a.../2014/2014fca1019/summary/2014fca1019-summary

Having had that revision, I don't think my earlier belief was too far wrong.

 

[Slartibartfast]

This option was not available to the players because the club "self-reported" - in quotations because the Fed Ct action established that the club didn't actually self report at all. You can't self-report and then say, "no comment". In any case, from what I've read, the players believed that they had nothing to hide in those interviews because they didn't think that they'd cheated. Their subsequent conduct is consistent with this belief.

They knew they had something to hide, they hid it from Dr Reid, from Drug testers.
They knew!

 

[Lavender Bushranger]

Look, I think we all know Essendon thought they'd get off due to their mates in high places pulling strings for them.

All the 'we're fully cooperating' stuff early on was purely cause they were under the impression they were getting off.


Once that changed, their whole approach changed.


The dudes in here arguing, are basically now saying 'yeah we know they did it, it's just not fair that they got caught' right?

 

[Crankyhawk]

I don't know that McDevitt will be breaking out the bubbly just yet. He's got to front up again at the next Senate Estimates to provide the information requested by the Senators. In the meanwhile, I expect that the players' advocates will be in touch with the senators to brief them on the holes in McDevitt's explanations of ASADA's management of the saga.

I think he'll be hoping for an early election and the shelving of this matter. Madigan, on the other hand, looks like he's going to push it hard because it's become his election issue. Interesting that Senator Back (WA) revealed that his appearance was due to a connection with John Worsfold.

I think there were a number of positives for the players. McDevitt's only real "win" was in relation to Nova Peris' bizarre performance - why was she there?

Affirmative action quota?

(And inb4 racism the snarky is based on poor performance of Peris)

 

[threesixpio]

This option was not available to the players because the club "self-reported" - in quotations because the Fed Ct action established that the club didn't actually self report at all. You can't self-report and then say, "no comment". In any case, from what I've read, the players believed that they had nothing to hide in those interviews because they didn't think that they'd cheated. Their subsequent conduct is consistent with this belief.

The club self reported. Doesn't mean the players should fess up.

Re not doing the wrong thing - that's why lawyers advise "no comment" - a right available to them under the ASADA act. Plenty of punters think they've done nothing wrong and they have!!

So are you saying they chose not to exercise this right because they did nothing wrong or were forced to - your post is confused on this point

 

[Proper Gander]

I worked as DLO for a bit for a Cabinet Minister. Do not apply for this role - the hours are literally crippling. Also, there are mice in the bunker. I don't like mice.

 

[Demon in Hell]

I worked as DLO for a bit for a Cabinet Minister. Do not apply for this role - the hours are literally crippling. Also, there are mice in the bunker. I don't like mice.

Deputy Leader of the Opposition.

 

[Muggs]

I worked as DLO for a bit for a Cabinet Minister. Do not apply for this role - the hours are literally crippling. Also, there are mice in the bunker. I don't like mice.

Ever got paid overtime? my bosses stopped that after media started doing FOI god forbid the public found out how much we were getting paid if we got the full overtime allowance.

 

[Proper Gander]

Ever got paid overtime? my bosses stopped that after media started doing FOI god forbid the public found out how much we were getting paid if we got the full overtime allowance.

They changed the laws under the public service act - DLOs now get a 'bonus' per year, or pro rata if you are there less than a year. It's pretty substantial, but nowhere even close to the overtime that would be awarded by the hour.

 

[Laphroaig]

Having been involved in politics in my younger day's and spending my late teens and 20s with friends with who are now SA based pollies (both state and fed) on both sides of the chamber and having worked for a few of the more senior ones (on one side)...

I can answer this question.

Brown nosing the party power brokers.

Its rare now days to find new members of parliament who have NOT worked as a political staffers most of their working career. Even those that have non staffer experience this actually arranged by those same power party brokers.

I worked in Parliament House (Defence adjunct) in the late 70s early 80s. Politics back then seemed so very different. Perhaps that was more to do with the wide-eyed lens of youth and/or the more cynical lens these days?

You would have been right on the cusp then Jenny.

One could debate about the exact start date, but you were not long before the rampant politicisation of the senior public service. There was a time where an incoming government would not in their wildest dreams dare to move a Departmental Secretary along so he could be replaced with a known political sympathiser. Now it's just normal.

By the mid 90s that had even spread to senior Military Officers in Canberra - whose promotion prospects were being judged by their party affiliation.

 

[Just interested]

I worked in Parliament House (Defence adjunct) in the late 70s early 80s. Politics back then seemed so very different. Perhaps that was more to do with the wide-eyed lens of youth and/or the more cynical lens these days?

From the same great writer as earlier today, 4 days prior, on the same theme:

“Managed Democracy,” Wolin continued, “is the application of managerial skills to the basic democratic political institution of popular elections. An election, as distinguished from the simple act of voting, has been reshaped into a complex production. Like all productive operations, it is ongoing and requires continuous supervision rather than continuing popular participation. Unmanaged elections would epitomize contingency: the managerial nightmare of control freaks. One method of assuring control is to make electioneering continuous, year-round, saturated with party propaganda, punctuated with the wisdom of kept pundits, bringing a result boring rather than energizing, the kind of civic lassitude on which a managed democracy thrives.”

http://www.globalresearch.ca/the-gr...liticians-are-little-more-than-brands/5511161

Hird receiving counsel from the government of the day, on a matter before the court, in apparent contravention of the governing law, without the merest mention from those who have certain protections, only because they claim to hold those in power to account, is what "managed democracy" looks like.

Particularly when the way to counsel was paved by someone from the privileged estate charged with holding power to account. The privilege sustains dependent on non-participation.......supposedly.

 

[Muggs]

They changed the laws under the public service act - DLOs now get a 'bonus' per year, or pro rata if you are there less than a year. It's pretty substantial, but nowhere even close to the overtime that would be awarded by the hour.

Change does not surprise me. Before the FIOs started I did 4 weeks during a uni break for a special project (the fact there was an election on was pure coincidence) earned more that period than the minister did...he stopped signing overtime soon after...

 

[sameolds33]

This just feels like a re-litigation of the joint investigation argument. This argument is over isn't it? Unless it is for the purpose of looking into whether any ASADA employees did the wrong thing (quite apart from the decision which flowed from it).

The Fed Ct case followed the issue of SCNs to determine whether the evidence uncovered by the joint investigation could be used as part of ASADA's case at the Tribunal. The court ruled that it was lawful (and even if it wasn't that it would still be allowed because it already existed.) Events subsequent to the Tribunal hearing - the CAS appeal by WADA and this estimates hearing have demonstrated that the evidence gathered from the joint investigation, in particular the consent forms, formed one of the "twin pillars" of WADA's case (the other being the analytical case) was critical to WADA's success at CAS.

There were two parties conducting the joint investigation and only one of them owed the players a duty of care. Just because the Fed Ct found in favour of ASADA in those circumstances doesn't mean that a player action against the AFL now would produce the same result regarding self-incrimination.

 

[sameolds33]

Clearly a person who has NFI what actually is under the scrutiny of the Australian Parliament. The AFL Tribunal, for example.

And, surprise surprise, the Australian Courts. Separation of powers anyone? You'd think a Member of Parliament would at least understand that one, given that the Parliament is specifically prohibited under the Constitution from interfering with the judiciary.

As for the rest - unfounded speculation masquerading as fact giving rise to apparently pointed questions. A feeble little trick.

But Madigan was right in this case. If ASADA had appealed to the AFL Appeals Tribunal the Parliament would have been able to review ASADA's conduct in the same manner as it is doing now because, as a government agency is answerable to the Parliament. ASADA did remove the matter from the scrutiny of Parliament.

 

[threesixpio]

The Fed Ct case followed the issue of SCNs to determine whether the evidence uncovered by the joint investigation could be used as part of ASADA's case at the Tribunal. The court ruled that it was lawful (and even if it wasn't that it would still be allowed because it already existed.) Events subsequent to the Tribunal hearing - the CAS appeal by WADA and this estimates hearing have demonstrated that the evidence gathered from the joint investigation, in particular the consent forms, formed one of the "twin pillars" of WADA's case (the other being the analytical case) was critical to WADA's success at CAS.

There were two parties conducting the joint investigation and only one of them owed the players a duty of care. Just because the Fed Ct found in favour of ASADA in those circumstances doesn't mean that a player action against the AFL now would produce the same result regarding self-incrimination.

??

Same result as the Fed Crt case? Player action against AFL

Explain

 

[threesixpio]

But Madigan was right in this case. If ASADA had appealed to the AFL Appeals Tribunal the Parliament would have been able to review ASADA's conduct in the same manner as it is doing now because, as a government agency is answerable to the Parliament. ASADA did remove the matter from the scrutiny of Parliament.

Rubbish. It would be dealt with by a judicial or quasi judicial body - not parliament

 

[sameolds33]

I don't understand much of the anger on this point. Yes for many players a key piece of evidence is what they admitted in the interviews, and therefore their self-incrimination. For many other players their text messages and other evidence would have been enough to prove they received injections.

If players wished to challenge being forced to speak at interviews they had the ability to do that and were legally represented at all times. They chose not to do so (and would have lost the PR battle very early on if they had refused to speak).

No, in my opinion, it's apparent from the CAS decision and the explanations given by Elen P here that the interviews and the consent forms formed the circumstantial "pillar" of WADA's case. The presence of the word "thymosin" was critical. (As an aside, if this had been a systematic doping program wouldn't you have been clearer about this being "the good one" or simply eliminated all reference to the peptide if, as CAS determined) it could only have been tb4.) No case was pursued against those who didn't show up - although they presumably had the same texts etc for these players. She said there wasn't enough evidence.

It's a semantic point but I also have an issue with CAS' metaphors. How do pillars - rigid, entirely separate columns of argument become sufficiently supple to become threads that then become cables long enough to hang the players. and what happens if one of the pillars is knocked over?

 

[sameolds33]

Rubbish. It would be dealt with by a judicial or quasi judicial body - not parliament

yes the hearing would be dealt with by the relevant tribunal that has independence from the parliament but, as appellant, ASADA would still be answerable to the parliament for its actions.

 

[threesixpio]

yes the hearing would be dealt with by the relevant tribunal that has independence from the parliament but, as appellant, ASADA would still be answerable to the parliament for its actions.

Some actions. If a court specifically ruled on those actions, a la the Fed Crt case, Parliament needs to back the f@&@ off scrutinising such actions particularly if it has a hint of re-litigation. That's my view.

So exactly what actions are you talking about?

 

[imperial_oz]

But Madigan was right in this case. If ASADA had appealed to the AFL Appeals Tribunal the Parliament would have been able to review ASADA's conduct in the same manner as it is doing now because, as a government agency is answerable to the Parliament. ASADA did remove the matter from the scrutiny of Parliament.

Bulldust!

Sheer unadulterated bulldust.

Madigan had everything 100% wrong, as do you.

Parliament has never had oversight over court cases. There is a little thing called 'separation of powers' that needs to be taken into account. Madigan probably hasn't had somebody explain this to him using simple words like 'stay', 'rollover' and so forth. Madigan's comments are absurd in the extreme.

So we can dismiss that part of his comments with the contempt they richly deserve.

Lets look at the other parts of his comments. CAS isn't Australian. So what. Australia is a part of the world anti doping process and CAS is the final arbiter. Where is the problem?

Is he suggesting that CAS, not being Australian, is somehow less? corrupt? wrong? Well Australia is a part of the system and an eminent Australian jurist was part of the panel. So he is wrong in his comments on that as well.

It is also very clear that you have little or no understanding of what you are criticising based on your comments. Let me quote where you contradict yourself.

"Parliament would have been able to review ASADA's conduct in the same manner as it is doing now"

So by going to CAS rather than the AFL appeal panel, parliament would have been able to review ASADA's conduct just like it is actually doing after ASADA DIDN'T go the AFL appeal panel. Really?

Parliament can always review the conduct of a Federal Government agency. Always. Madigan simply has no idea. he is a complete fool.

I'll make it simple for you. Parliament NEVER had oversight over the anti-doping case. All cases whether criminal or civil are run COMPLETELY INDEPENDENTLY of parliament. The have no role, no oversight, no scrutiny. Parliament's role is creating the legislative framework and then standing back and allowing the courts to conduct their role without let or hindrance. The oversight aspect of parliament over government agencies is completely different and completely unaffected.

You would do well not to keep posting Madigan's garbage while you do not understand these simple concepts. Madigan would do well to keep his mouth shut and stop demonstrating his extreme level of incompetence, although thats never stopped any politician in the past

 

[sameolds33]

??

Same result as the Fed Crt case? Player action against AFL

Explain

The AFL have a contractual duty of care to the players. Its ham-fisted attempts to control the process to "protect the players" by manipulating Essendon into self-reporting (as was established by the Fed Ct action) led to Essendon losing control of the process and the AFL taking it on. Under their tri-partite contracts, players had to front up to the ASADA interviews. They couldn't answer "no comment" to the AFL. Chip Le Grande discusses this process at some length in his book, contrasting it with the Cronulla players' situation. Additionally, both ASADA and the AFL provided the players with assurances that cooperation would work favourably for them. So, even though compelled to explain the program at the joint investigation, the players presumably also had no reason not to provide the requested explanations - the program was club sanctioned etc. they believed it was legit. etc [you know how this bit goes!]

As we know, it didn't work out all that well for the AFL - ASADA marriage. A joint investigation certainly won't be a template for future investigations. If a player were to bring an action in contract or tort against the AFL (and this would probably only happen if a player who left the AFL system altogether, anyone wanting to stay in football might think twice), the consequences of the self-incriminating information would, I believe, be looked at in the wider context of events after Middleton's determination and taking into account the AFL's duty of care.