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ASADA actions unlawful, Essendon tells court

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ASADA’s investigation of Essendon’s 2012 supplements program was unlawful and for an improper purpose, the AFL club has told the Federal Court.

Neil Young QC, for Essendon, told the court the Australian Sports Anti-Doping Authority had overstepped its powers in its joint investigation with the AFL of the club.

“From its inception, the investigation was invalid and unlawful,” he said today.

Young said the investigation was conducted for improper purposes.

He said ASADA had essentially run the entire investigation, leaving the AFL to act as the body’s “secretariat”.

He said then-ASADA CEO Aurora Andruska had said she would use the AFL’s ability to investigate players “until we get our own powers”.

The AFL had used its compulsive powers to compel Essendon players and officials to give evidence to ASADA, and seized physical evidence such as computers and phones, Young said.

He said ASADA passed all the information it collected to the AFL, which stored it in its database.

“ASADA is intended to be an independent investigator,” Young said.

“The act makes it clear ASADA is to operate independently of the government and sporting bodies such as the AFL.”

Young said there were strict limits on what ASADA could disclose to governing bodies such as the AFL, and the information could not be used for the league’s own disciplinary purposes.

“All of the investigative information as it arose was handed over and made available to the AFL,” he said.

“That was beyond power.”

Peter Hanks QC, for suspended Essendon coach James Hird, said ASADA had continually breached its confidentiality obligations by including the AFL at every stage of the investigation.

“Also by releasing a regular supply of information from the investigations when the AFL was not an entrusted party,” Hanks told the court.

ASADA providing the interim report to the league was another breach of confidentiality, he said.

But ASADA counsel Tom Howe QC said Essendon’s “seriously derelict” and “toxic” governance and management were a major part of the investigation.

“Possible governance and management issues were the very thing which prompted senior Essendon officials to approach ASADA,” he said.

Mr Howe said ASADA was not prohibited from conducting a joint investigation and if the court ruled against it, it would compromise the body’s stated aims.

“Indeed the expression ‘nonsense on stilts’ comes to mind,” he said.

David Grace QC, on behalf of the players, said it would be a grave injustice if findings were made against his clients on the basis of the “unlawful” joint investigation.

The trial continues.

Essendon has already been fined $2 million, the club was booted out of the 2013 finals and its coach James Hird sat out a year-long ban, as AFL-imposed penalties.

Hird is expected to give evidence later this week.

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