20140622 CDOC Affidavit of Aurora Andruska

NOTICE OF FILING

This document was lodged electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on 22/07/2014 2:18:37 PM AEST and has .been accepted for filing under the Court’s Rules. Details of

filing follow and important additional information about these are set out below.

Details of Filing

Document Lodged: Affidavit - Form 59 - Rule 29.02(1)

File Number: VID327/2014

File Title: Essendon Football Club v The Chief Executive Officer of the Australian Sports Anti-Doping Authority

Registry: VICTORIA REGISTRY - FEDERAL COURT OF AUSTRALIA

Dated: 22/07/2014 2:53:47 PM AEST Registrar

Important Information As required by the Court’s Rules, this Notice has been inserted as the first page of the document which has been accepted for electronic filing. It is now taken to be part of that document for the purposes of the proceeding in the Court and contains important information for all parties to that proceeding. It must be included in the document served on each of those parties.

The date and time of lodgment also shown above are the date and time that the document was received by the Court. Under the Court’s Rules the date of filing of the document is the day it was lodged (if that is a business day for the Registry which accepts it and the document was received by 4.30 pm local time at that Registry) or otherwise the next working day for that Registry.

Form 59 Rule 29 02( 1)

FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY; VICTORIA

DIVISION; GENERAL

AFFIDAVIT

ESSEN DON FOOTBALL CLUB (ACN 004286373)

Applican(

THE CH IEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY

Respondent

AND

JAMES ALBERT HIRD

Applicant

THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN

SPORTS ANTI-DOPING AUTHORITY

Respondetlt

Affidavit of: Aurora Kristine Andruska, PSM

Address:

Occupation: Retired Public Servant

Date sworn or arri rmed: 22 July 2014

Document Number

1

2.

3.

Details

Affidavit of Aurora Kristine Andruska, PSM sworn on 22 July 201 4.

Annexure AA-1 being note of 11 January 2013 meeting.

Annexure AA-2 being note of 31 January 2013

Filed on behal f of the Respondent

Prepared by: JusOn Oavidson

AustraliM Government Solicitor.

Address for Service: Australlen Govornnlent Solicitor, level 2', 200 Queen SI, Melbourne, \/le 3000 craig ,[email protected]

NO V ID 327 OF 2014

NO VID 328 of 2014

Paragraph(s) of affidavit referring to annexure(s)

Page

6

8

1-16

file re!. 14097050

Telephone: 03 9242 1248 Lawyer's Emai l:

[email protected] Facsimile: 03 9242 '333

DX 50 Melbourne

Details

meeting.

4. Annexure AA-3 being note of 1 February 2013

12 23-24 conversation.


18 25-26 conversatio n.

6. Annexure AA-5 being press release of 5 February

19 27-28 2013.




27 31-34 meeting.



10. Annexure AA-9 being note of 4 April 2013 meeting. 33 37-40

11. Annexure AA-10 being note of 22 April 2013

34 41-42 meeting.

12. Annexure AA-11 being note of 4 June 2013 meeting. 39 43-47

13. Annexure AA-12 being note of 19 June 2013

45 48-52 meeting.

14. Annexure AA-13 being draft table of contents to

50 53-54 ASADA report to the AFL dated 25 June 2013.

15. Annexure AA-14 being note of 25 June 2013


16. Annexure AA-i5 being note of 26 June 2013


17. Annexure AA-i6 being note of 20 July 2013

55.7 60-61 conversation.

18. Annexure AA-17 being letter from ASADA to the AFL

60 62-65 dated 2 August 2013.

19. Annexure AA-i8 being letters from ASADA to the

61 66-69 AFL dated 7, 8 and 12 August 2013.

20. Annexure AA-i9 being note of 2 August 2013

63 70-71 conversation (undated on its face).

21. Annexure AA-20 being note of 13 August 2013


Annexure AA-21 being correspondence between 22. ASADA and the AFL about the AFL's use and 66 74-108

distribution of the interim report.

23. Annexure AA-22 being Protocol for handling the

67 109-111 interim report.

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1, Aurora Kristine Andruska, PSM _ , say on oath:

1. From 10 May 2010 until 9 May 2014 1 was the Chief Executive Officer (CEO) of the Australian Sports Anti-Doping Authority (ASADA). I spent over 37 years as a public servant in the Australian Public Service, including senior appointments with the Department of Human Services and the then Department of Education, Science and Training. From 20 May 2014 to 30 June 2014 I worked as a consultant to ASADA to assist the new eEO, Ben McDevitt AM, APM to transition into that role. j am presently retired.

2. In my role as CEO of ASADA I was involved in making decisions about ASADA's investigation concerning the Essendon Football Club (Essendon) (the ASADA investigation). This investigation was set up to establish whether players or support staff at Essendon used substances or engaged in methods prohibited by the World Anti-Doping Authority (WADA) and Anti-Doping Code of the Australian Football League (AFL). The investigation concerning Essendon was one part of ASADA's broader investigations into the AFL, and also the National Rugby League.

3. I was involved in decision-making concerning the ASADA investigation from its commencement in late January/early February 2013 until I ceased in the role of CEO on 9 May 2014. My involvement included making the decision to provide a report to the AFL in early August 2013 (the inte rim report). I was, however, on leave for a period in July 2013, as described in paragraph 52 below.

4. My evidence in this afridavit is based on my own knowledge unless otherwise indicated. My affidavit sets out my best recollection of the words or the effect of the words said during conversations and meetings that occurred. My general practice was to use spiral bound notebooks to make notes during my meetings and telephone conversations. During most meetings and telephone conversations on ASADA business, r made a handwritten note during the conversation of what I considered to be the important things sa id, particularly by other persons. My practice was to try and write down the significant exact words that were being spoken in those meetings and conversa tions as they were being spoken so that I would have a record of that to refer back to in the future. Where I have annexed handwritten notes to my affidavit, this is their nature and origin. Words in quotation marks reflect my best recollection of actual words spoken (assisted by refe rence to notes taken by me during the relevant conversation) .

5. Unless I expressly state otherwise, nothing in this affidavit is intended to expressly or impliedly waive any privilege of the respondent in any communication.

THE ASAOA INVESTIGATION - ESTABLISHMENT

6. During 2012 the Australian Crime Commission (ACe) was undertaking an investigation into organised crime activity in Australian sport. On 11 January 2013 I had a meeting in Canberra with John Lawler AM APM, the then CEO of the ACC and others from the ACe. Also in attendance was Richard Eccles from the then Department of Regional Australia, Local Government, Arts and Sport (the Department) and others from ASADA. I was informed by Mr Lawler that the ACC investigation report was essentially

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finalised, and that the proposed to hold a briefing on 31 January 2013 with various stakeholders (including, relevantly, the AFL). I was also informed by Mr Lawler that (i) the ACC tentatively proposed to hold a press conference on 7 February 2013, and (ii) the ACC proposed to release a public version of its report at that time. Annexed to my affidavit and marked is a true copy of my handwritten note of the meeting on 11 January 2013.

7. On 31 January 2013 the ACC held a meeting in Canberra to provide a briefing on its investigation to the AFL. Present at this meeting were:

7.1. Mr Lawler, Paul Jevtovic, Judy Lind and Shane Neilson of the ACC;

7.2. Andrew Demetriou (the then CEO of the AFL), Gillon McLachlan (the then Deputy CEO of the AFL), and Brett Clothier (the AFL's integrity officer);

7.3. myself from ASADA

7.4. Mr Eccles from the Department.

8. At this meeting Mr Lawler outlined the ACC's findings as they related to the AFL. Mr Lawler said that the information provided by the ACC in this meeting was to be kept confidential. Mr Demetriou said in response to what Mr Lawler said during the meeting that the AFL 'will cooperate' and 'share' and expressed the AFL's 'commitment'. Annexed to my affidavit and marked AA-2 is a true copy of my handwritten note of the meeting on 31 January 2013 but redacting information which I understood to have been communicated in confidence in that meeting.

9. On 1 February 2013 I had a telephone conference with Mr Clothier. Also present at that teleconference were:

9.1. Elen Perdikogiannis (ASADA National Manager Legal and Support), Paul Simonsson (ASADA Director of Intelligence and Investigations); and

9.2. Mr Eccles.

10. During this teleconference Ms Perdikogiannis told Mr Clothier that Mr Simonsson, together with John Nolan (an ASADA employee) were working on an 'investigation strategy' to investigate allegations of possible anti-doping rule violations that we expected to come out of the ACC's report.

11. During the teleconference Mr Clothier said 'we have the powers'. I understood him to mean that the AFL would use its powers under its contracts with players/officials and its Players Rules (which incorporated its Anti-doping Code) to compel players/officials to attend interviews and to answer questions from ASADA investigators truthfully. I said the words 'we can use [the] AFL's powers until we get our [own] powers'. In saying this I was referring to the fact that, at that time, ASADA's legislation did not include any compulsory information gathering powers, but that this was something we hoped to have in the future. As events later transpired, ASADA did obtain more compulsory powers in its Act from 1 August 2013 (but those powers did not extend to compelling answers at interviews).

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12. Annexed to my affidavit and marked teleconference on 1 February 2013.

is a true copy of my handwritten note of the

13. It was my understanding and expectation from the beginning that the AFL and ASADA would work cooperatively on the investigation. This was consistent with previous cooperative dealings on anti-doping test results and information sharing between the AFL and ASADA relevant to managing anti-doping issues. For example, the AFL had been working with ASADA over the last couple of years to develop blood profiling data to assist in the detection of changes in blood profiles that would be revealing of doping activities. As another example, I know that in 2011 the AFL organised, at ASADA's request, for James Hird, then senior coach at Essendon, to attend a discussion with ASADA officials. That discussion was for Mr Hird to explain the reasons behind questions he had raised with an ASADA doping control officer about peptides. I considered that the AFL and ASADA had a strong shared commitment on anti-doping matters.

14. On 5 February 2013, I think at about 1.30 pm, I received a telephone call from lan Robson, then CEO of Essendon. This was the first direct contact I had with Essendon. Mr Robson told me that he was calling to discuss action they were taking in relation to 'rumours re behavioural issues' at the club, relating particularly to a suspected 'substances/supplements breach'. He said that David Evans (then Chairman of the Board at Essendon) and James Hird were aware he was calling me.

15. During this discussion, Mr Robson said that Essendon 'wish to conduct [a] full and complete investigation'. Mr Robson said they wanted to 'see swift justice' if anyone had been found to have breached the rules.

16. Mr Robson also said that Essendon was planning on holding a press conference later that day and he wanted to say that the club had 'spoken with ASADA to express concern' and question 'if [there was a] role for ASADA' in investigating those concerns. I accepted that this was what they were going to do.

17. As noted above, by this time ASADA was already planning on conducting an investigation in connection with the ACC's findings. I did not know at the time I spoke to Mr Robson whether Essendon was aware, or was of the belief, that it would be named by the ACC as a club of concern in its report. What Mr Robson said was that the club was 'aware of concerns' and 'don't know how many players are involved'.

18. Annexed to my affidavit and marked AA-4 is a true copy of my note of the telephone conversation with Mr Robson on 5 February 2013 (with redactions).

19. Annexed to my affidavit and marked AA-5 is a true copy of a press release put out by Essendon on 5 February 2013, obtained from the website of The Age newspaper. According to that press release:

19.1. Essendon had contacted the AFL and subsequently requested an immediate investigation by the AFL;

19.2. Essendon then contacted ASADA (I take this to be a reference to Mr Robson's phone call to me) requesting ASADA's assistance in an investigation;

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19.3. Essendon offered ASADA the full cooperation of everyone at the club; and

19.4. ASADA informed Essendon that it would commence an investigation immediately.

20. ASADA's investigation of Essendon, as requested by both the AFL and Essendon, was one facet of the investigation that ASADA had already been planning to undertake in light of the ACC's findings concerning the AFL. ASADA's overall investigation was broader than just an investigation into Essendon, as I have mentioned.

21. On 6 February 2013 I received another telephone call from Mr Robson. In that conversation Mr Robson said that Essendon was looking for some 'certainty and clarity' about 'what has taken place'. I understood this to be a reference to what had taken place at Essendon in relation to its supplements program. Mr Robson also said that 'every player involved last year will be interviewed'. He said that they 'need to be absolutely truthful'. At the time, I understood these statements to be acknowledgments by Mr Robson that players would be interviewed pursuant to the AFL's compulsory powers and their obligations in those interviews were to be completely truthful and forthcoming (as set out in the AFL's Anti-doping Code). Annexed to my affidavit and marked AA-6 is a true copy of the note I made of the conversation with Mr Robson on 6 February 2013 (with redactions).

22. On 7 February 2013 the ACC held the planned press conference to talk about its findings. I was present at the press conference, as were senior figures from those sports forming part of the Coalition of Major Professional and Participation Sports (COMPPS), other than the head of Netball Australia. Mr Demetriou was present on behalf of the AFL. The Hon Jason Clare MP, Minister for Justice, and the Minister for Sport, Senator the Hon Kate Lundy, were also present.

23. On Saturday 9 February 2013 ASADA officials met with AFL and Essendon officials at ASADA's premises in Canberra. Present at this meeting were:

23.1. myself, Ms Perdikogiannis, Mr Simonsson, Darren Mullaly (legal officer - by telephone) and Trevor Burgess (ASADA Chief Operating Officer) from ASADA;

23.2. Mr McLachlan and Mr Clothier from the AFL;

23.3. Mr Evans and Mr Robson from Essendon; and


24. My notes of this meeting do not record any express references specifically to a joint investigation between the AFL and ASADA, nor to ASADA obtaining information through the exercise by the AFL of its compulsory powers. However, my recollection is that the meeting participants shared an assumed understanding of both of these matters, and of the need to find out exactly what had occurred at Essendon in relation to its supplements program. For instance my notes do record that at the start of the meeting Mr McLachlan said that the AFL wanted to be 'the best partner as we can' and that 'no-one that can take [this] more seriously than us'. I understood these statements

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to be reassurances that the cooperation with, ASADA.

would provide a maximum level of assistance to, and

25. I understood that Mr Evans and Mr Robson took the same position on behalf of Essendon. At this meeting neither Mr Evans nor Mr Robson said anything expressing any concern about the idea that the AFL would partner with ASADA in the conduct of an investigation.

26. Later in this meeting Mr McLachlan said that there would be 'sanctions against Essendon' if any wrongdoing was found. He also said words to the effect that guilty parties would be 'held responsible' and the AFL would 'hold individuals accountable'. To the best of my recollection neither Mr Evans nor Mr Robson said anything in response to those statements.

27. Annexed to this affidavit and marked 9 February 2013 meeting.

is a true copy of the notes I took at the

28. The meeting on 9 February 2013 was the last high level meeting between ASADA and the AFL or Essendon concerning the commencement of the ASADA investigation. After that meeting the investigators were getting on with the investigation. I did have further discussions with senior officials from the AFL and Essendon over the course of the ASADA investigation, as detailed below.

ESSENDON'S ATTITUDE TO THE INVESTIGATION

29. During the ASADA investigation, I was not aware of Essendon having any concerns regarding the nature and extent of cooperation between ASADA and the AFL in the conduct of that investigation. No such concerns were ever raised with me. There were certainly opportunities for senior Essendon officials to raise their concerns with me.

30. Based on what Mr Robson said to me on 5 and 6 February 2014 and Essendon's press release on 5 February 2013, I believed at that time that Essendon was welcoming of, and fully supported, ASADA undertaking the investigation in whatever manner it considered appropriate. I am aware in this regard that Mr Evans was interviewed jointly by ASADA and the AFL pursuant to the AFL's compulsory powers. I am aware that Mr Robson was also jointly interviewed, again pursuant to the AFL's compulsory powers. At no stage did anyone from Essendon contact me to express any objection to the conduct of those interviews, or any other interviews of Essendon players and officials. No such complaints were reported to me by ASADA officers. I am also aware that Deloitte, on behalf of the AFL, accessed Essendon's servers as part of the investigation and my understanding was that Essendon was welcoming of that. In fact to my knowledge Essendon, and particularly Mr Evans, was at all times supportive of the investigation process.

31. On 21 February 2013 I received a call from Mr Evans providing feedback on a briefing that Mr Simonsson had given to the Essendon players about the ASADA investigation. Mr Evans said Mr Simonsson's address had been 'absolutely outstanding' and that the way Mr Simonsson spoke 'was really first class'. During this conversation Mr Evans also said you 'have my word' that Essendon will provide anything that would assist in

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the ASADA investigation. Annexed to my affidavit and marked is a true copy of the note I made of the conversation with Mr Evans on 21 February 2013.

32. On 4 April 2013 I attended a meeting at Mr Evans' office in Melbourne. At that meeting was:

32.1. myself, Mr Simonsson, John Nolan (an ASADA investigator working on the ASADA investigation) and David Lording (a media adviser to ASADA);

32.2. Mr Evans and Paul Little (an Essendon board member) from Essendon, and a female media adviser to Essendon whose name I do not recall; and

32.3. Mr McLachlan and Mr Clothier from the AFL.

33. At this meeting Mr Evans said that the club was feeling the stress and that a 'few cracks [were] starting to appear' and he referred to 'stress, HR issues' and the club being 'smashed in [the] media'. He asked questions around how long I thought the ASADA investigation would take. He also spoke about his concern for the well-being of the players. Mr Nolan provided some information about the substances that may have been taken by players. Although I cannot now recall the words he used, Mr Evans expressed shock and concern for the players when he heard what Mr Nolan said. Although Mr Evans asked about how long the investigation would take, he did not criticise the investigation. He did say that the players were feeling anxious, but at no stage did he raise, even indirectly, any concern or reservation about the joint interview arrangements as between the AFL and ASADA. Annexed to my affidavit and marked AA-9 is a true copy of my notes of the meeting on 4 April 2013 (with redactions).

34. On 22 April 2013 Mr Evans called me to let me know that a report Essendon had commissioned from Ziggy Switkowski on its governance processes was finished. In this conversation Mr Evans said he, Mr Evans was 'v[ery] impressed with [the] way that ASADA [had] conducted [the] investigation'. He described Mr Nolan as a 'v[ery] v[ery] good person' and said 'I've leant on him a lot'. Annexed to my affidavit and marked AA-10 is a true copy of my note of the conversation with Mr Evans on 22 April 2013 made during that conversation.

35. On 4 June 2013 I met at the AFL's offices with representatives from the AFL, Essendon and the Department. At that meeting were:

35.1. myself from ASADA;

35.2. Mr McLachlan from the AFL;

35.3. Mr Evans from Essendon; and


36. In this meeting Mr McLachlan said that the AFL was concerned because a survey they had conducted suggested that for the 'first time faith in [the] game [has been] challenged'. Mr McLachlan also said he was concerned about the 'integrity of [the]

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2013 season' and for the 'brand and competition'. He discussed the timing of the conclusion of the investigation and the timing of the 2013 finals series.

37. Mr McLachlan also said that support staff at Essendon would be 'held to account, whatever they have done' and that there could be a 'sanction of [the] club'. Mr Evans did not say anything in response to these statements in the meeting.

38. However, Mr Evans did say that he was 'more than impressed with investigation staff'. He did raise a concern that a female investigator, on learning of Mr Robson's departure from Essendon, made an inappropriate verbal comment about this - 'got our first one' but this was raised as an isolated incident. Mr Evans did not express any other concern about the approach to the investigation process, Essendon's participation in it, or the AFL's participation in it.

39. Annexed to this affidavit and marked meeting on 4 June 2013.

THE INTERIM REPORT

The AFL's call for a report from ASADA

is a true copy of my notes from the

40. On 19 June 2013, ASADA officials met with representatives from the AFL at the AFL's board room in Melbourne. At that meeting were:

40.1. myself, Bill Rowe (an ASADA officer on secondment from the Department), Mr Burgess, Ms Perdikogiannis, Mr Mullaly, together with Malcolm Holmes QC (who at that time was providing legal advice to ASADA) on behalf of ASADA; and

40.2. Andrew Dillon (then legal counsel to the AFL), Mr McLachlan and Mr Clothier from the AFL.

41. During this meeting Mr McLachlan repeated the AFL's concerns expressed to me on 4 June 2013. In relation to the finals and Essendon playing in it, Mr McLachlan said that a 'corrupted 2013' would 'undermine the comp[etition] for 10 years'. Mr McLachlan later said the AFL needed some 'certainty for decisions as we go into the finals series', particularly because it appeared that Essendon would play in the 2013 finals.

42. In the course of discussing the timeline for the completion of the ASADA investigation, Mr McLachlan requested a written report from ASADA. The timetable that he proposed was that the investigation would be completed by 1 August 2013, with a final investigation report done that could be presented to a meeting of AFL commissioners in mid-August. Mr McLachlan said that the report would be used as a basis for decision-making by the AFL Commission. It was to cover the possibility of 'prosecution' associated with the use of a substance known as AOD 9604.

43. During the 19 June 2013 meeting ASADA (through Mr Holmes QC) raised the possibility that rather than the AFL getting the full investigation report, ASADA could provide a high level summary report together with source materials. He also raised the possibility of ASADA giving an oral briefing to the AFL Commission. In fact, no such oral briefing ever took place.

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44. There was discussion of the suggested high level summary report. Rowe asked whether a high level report would be sufficient for the Board's needs. Mr Clothier replied saying the 'Commission will want to know' about AOD 9604, hexarelin and thymosin. This was where the discussion was left, although we agreed to schedule another discussion on 25 June 2013.

45. Annexed to my affidavit and marked on 19 June 2013 (with redactions).

2 is a true copy of my notes of the meeting

46. There were a number of factors that I took into account in making the decision to provide the high level summary report to the AFL. One of these was that the AFL had the raw material they needed to produce the report they wanted. The AFL had been closely involved in the ASADA investigation to date and to my understanding had been present at all the interviews of Essendon players and support staff. I also understood that the AFL had provided a large amount of other investigative material to ASADA (obtained on their behalf by Deloitte, who had extracted material from Essendon's servers). However on balance, in agreeing to provide a high level summary report to the AFL, the following considerations prevailed in my mind:

46.1. I felt that ASADA was better positioned to produce the kind of report that the AFL was seeking because it was already familiar with the status of the investigation and had expert in-house counsel who could produce such a high level summary report. In addition, any report on ASADA's investigation that was to be produced was one that I wished to maintain control over. I did not want any report prejudicing the ongoing investigation.

46.2. I wanted to maintain a good cooperative relationship with the AFL in relation to anti-doping matters (both in connection with this particular investigation and more generally). ASADA and the AFL had been working together to identify and deal with anti-doping issues within the AFL. At this time ASADA had no compulsory powers of its own and was generally reliant on the cooperation of sports bodies in order to be an effective regulator. I considered the AFL to be a partner in addressing anti-doping matters within the AFL. The AFL was pressing for us to provide a report that could be given to the AFL Commission.

46.3. I understood that the AFL's own consideration of the issues under investigation was likely to support ASADA's objectives in preventing, detecting and taking action against doping in the AFL. I understood from my discussions with AFL officials such as Mr Demetriou, Mr McLachlan and Mr Clothier up to this point that the AFL had a particular interest in examining whether the governance structure within Essendon was an element in fostering or allowing conduct that might ultimately be found to breach WADA guidelines or the AFL's Anti-Doping Code. While the ASADA investigation was ultimately focused on possible antidoping rule violations by players or officials, I saw the AFL's interest in Essendon's internal governance, as it concerned anti-doping matters, as closely related to the ASADA investigation. I also saw this as a broader issue of interest to ASADA - namely, the ways in which governance arrangements could present weak points or vulnerabilities in sports administration that created opportunities for anti-doping violations to go undetected.

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47. the time of this meeting on 19 June 2013 was of the understanding that the would use the summary report to consider whether it should take separate action against Essendon or its officials under the rules for any governance failures it found in connection with doping issues. This is what I understood Mr McLachlan to mean when he was talking about having certainty for 'decisions' (see paragraph 41 above.)

48. On 19 June 2013, following the meeting with the AFL on that date, i instructed Ms Perdikogiannis and Mr Mullaly to prepare a summary report to give to the AFL as agreed at the 19 June 2013 meeting. I understood this would be a huge undertaking for them and effectively that they would go offline from other work. Ms Perdikogiannis and Mr Mullaly commenced that work.

49. On 25 June 2013 I had a telephone conference with representatives from the AFL. The teleconference was to discuss the preparation of the high level summary report. I wanted it to be clear what the summary report would address so there was no disagreement between the AFL and ASADA about what was asked for and what ASADA provided. This discussion involved Mr McLachlan, Mr Rowe, Mr Burgess, Mr Mullaly and myself.

50. In that discussion I talked through a draft table of contents for the high level summary report that ASADA was preparing for the AFL. It had been circulated prior to the meeting. Annexed to my affidavit and marked AA-13 is a true copy of the draft table of contents with a handwritten note on it by me made during the teleconference. Mr McLachlan's main comment was will the 'conclusions [be] based on what is known' at the time? He also asked what would be said about 'unwitting involvement'. Annexed to my affidavit and marked AA-14 is a true copy of my note of the teleconference on 25 June 2013 (with redactions).

51. On 26 June 2013 I received a telephone call from Mr McLachlan. He said that the AFL needed to get 'the fullest report possible'. Mr McLachlan said that he was concerned that if the AFL took action against Essendon it could end up in litigation in the High Court and Supreme Court. I explained to Mr McLachlan that there was some information that could not be included as it would prejudice the outcome of ongoing investigations. Annexed to my affidavit and marked AA-15 is a true copy of my note of the discussion with Mr McLachlan on 26 June 2013.

52. I took a period of 3 weeks' leave commencing on Monday 1 July 2013, although I left for overseas on the evening of 28 June 2013 for personal/family reasons. During my period of leave Mr Burgess was acting CEO of ASADA. I was not contacted over this period and did not have supervision over what was happening with the ASADA investigation over this period.

53. Before I went on leave I had a handover meeting with Mr Burgess on the current status of the ASADA investigation and what might need to be done whilst I was away. In summary, I said to Mr Burgess that:

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53.1. had agreed to provide the with a summary report of the investigation to date and that the report was due to be provided around 1 August 2013; and

53.2. Elen Perdikogiannis and Darren Mullaly in ASADA's legal team had been instructed by me to produce this report.

54. I arrived back in Australia on 19 July 2013. On Saturday 20 July 2013, I had a telephone discussion with Mr Burgess to receive a hand-back briefing. He provided me with a verbal report on what had been happening across ASADA generally during my leave. This included matters to do with the NRL and the AFL investigations.

55. In relation to ASADA's investigation into Essendon, Mr Burgess told me the following:

55.1. In early July, ASADA had written to the AFL explaining what the AFL could expect to see in the summary report that ASADA was preparing.

55.2. the AFL was 'anxious' about getting a report on 1 August that would 'meet their needs'.

55.3. In an effort to give the AFL some reassurance, Mr Burgess had allowed Mr Clothier to attend ASADA's premises in Canberra to inspect a heavily redacted version of the 'investigators' report'. This report (the investigators' report) was a report being prepared by the investigative team as the investigation progressed, based on the evidence they were collecting. The purposes of this report were to (i) provide an overview of the investigation; (ii) summarise the factual material collected during the ASADA investigation whilst the investigation was ongoing; and (iii) facilitate ASADA's consideration of what action, if any, to take next - by way of further investigation or other action.

55.4. Mr Clothier's inspection took place on 18 and 19 July 2013.

55.5. According to Mr Burgess, Mr Clothier had described the investigators' report as an 'outstanding report' and said it 'has everything they need'. Mr Burgess said to me that Mr Clothier had asked him 'why don't you give us that?'

55.6. Mr Burgess and I discussed 'do we have [a] legal mandate to hand over?' Mr Burgess and I also talked about the need for redactions to the investigators' report if it were to be provided to the AFL.

55.7. Annexed to my affidavit and marked AA-16 is a true copy of my file note of the discussion with Mr Burgess on 20 July 2013 (with redactions).

56. The understanding I formed from my discussion with Mr Burgess was that a new course had been set in my absence. This was not a development that I had expected.

57. I took the view that, subject to receiving any legal advice to the contrary, this new approach was a sound one and it was what ASADA should do. My focus immediately became ensuring that ASADA produced a version of the investigators' report that was

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redacted so far as was legally required so that the report could be provided to the (again, subject to legal clearance for that course of action). I instructed Ms Perdikogiannis and Mr Mullaly to cease writing the summary report and commence preparing a redacted version of the investigators' report for release to the AFL.

and terms

58. Accordingly in the last 10 days of July 2013 ASADA was preparing a version of the investigators' report that could be provided to the AFL. I had a number of concerns about the content of that report being provided to the AFL. One issue of real concern to me was that the investigators' report contained reference to material obtained from the ACC. I took the view that ASADA should not disclose that material to the AFL. I was also concerned about material obtained from third parties (outside the AFL) and material of a personal medical nature about an Essendon employee which was peripheral to the investigation. A lot of internal discussion and work by legal officers in ASADA went into preparing a redacted version of the investigators' report that removed material which was inappropriate to provide to the AFL. I reviewed a number of versions of the investigators' report between 22 July 2013 and 2 August 2013 to satisfy myself that appropriate redactions were being applied.

59. In the period between 22 July 2013 and 2 August 2013 I gave further consideration to the basis on which ASADA would provide the report to the AFL. I was aware from the meeting of 19 June 2013 that the AFL planned to use the report to brief the AFL Commission, with a view to possible disciplinary action against Essendon or Essendon personnel for any governance failures connected with the environment that contributed to the doping-related allegations under investigation by ASADA. I sought, and received, advice including written legal advice from the Australian Government Solicitor (AGS). I do not intend by this affidavit to expressly or impliedly waive ASADA's legal professional privilege in that advice.

60. Following advice provided to me (including legal advice) I formed the view that the safest course was that ASADA should only provide the report to the AFL in connection with ASADA's investigation. I decided to take this course. I asked Ms Perdikogiannis to prepare a cover letter for me to sign which made clear that ASADA was providing the report to the AFL on this specific basis. That was done, and the report (described as an 'interim report') went out under a letter, signed by me, on 2 August 2013 to the then CEO of the AFL, Mr Demetriou. A true copy of the covering letter dated 2 August 2013 is Annexure AA-17 to this affidavit.

61. Over the next few days and weeks ASADA's legal officers continued to review the contents of the interim report, focussing on what had been redacted to mask material understood to have come from the ACC. Those officers progressively vetted the release of various portions of the interim report, as redacted, with the ACC. As that occurred, I provided to the then CEO of the AFL further copies of the interim report with fewer redactions on 7, 8 and 12 August 2013. On each occasion I signed a cover letter that reinforced that each version of the interim report was being provided on the same basis as the first version, namely, in connection with ASADA's investigation. True copies of my cover letters dated 7, 8 and 12 August 2013 are Annexure 8 to my affidavit.

A3727929 Page

62. The specific method by which follows:

provided the interim report to the was as

62.1. ASADA provided a physical copy of the interim report (including each further version described immediately above), together with the cover letter, to the law firm Minter Ellison on behalf of the then CEO of the AFL. I did this personally on 2 August 2013.

62.2. Minter Ellison, on behalf of the AFL, had set up a 'data room'. My understanding of the data room came from a phone conversation I had with Mr Clothier on 2 August 2013. As I recall, he described it to me as an electronic access point, which was accessible only by people approved to access it. As I recall Mr Clothier's explanation, the AFL, AFL Commissioners, Essendon, Mr Hird and the legal advisers for the parties with a stake in the report would have access. Mr Clothier explained that the data room created a watermark when a person was viewing or printing documents from the data room. I understood the purpose of this to be that if any image or copy of anything in the data room was leaked to the press or otherwise shared improperly, it would be clear who had provided the material.

62.3. The interim report(s), together with their cover letters, were loaded into the data room. Mr Clothier told me that the data room was to include the interim report, as well as the Ziggy Switkowski report and a report obtained by the AFL on the substances involved.

63. Annexed to my affidavit and marked AA-i9 is a copy of my file note of my discussion with Mr Clothier. It is undated, but I know it to be from 2 August 2013 as it appears in my diary after a note on 2 August 2013 and I recall the conversation being on the day that I provided the 2 August 2013 version of the interim report to Minter Ellison.

Actions after the interim report was provided

64. In my covering letter of 2 August 2013 I invited Mr Demetriou to provide comments on the interim report. He did not do so. Some weeks later, I am not sure exactly when, I considered following this up but by this stage the ASADA investigation had moved into another phase, considering whether disclosure notices should be issued to any person to compel them to provide more information to ASADA. The focus was on progressing the investigation in that way and in the end I did not follow up with Mr Demetriou for comments on the interim report. Had any comments been received my intention was to have ASADA consider them in the context of its ongoing investigation.

65. In the weeks after 2 August 2013 I became increasingly concerned that the AFL might be proposing to disclose the interim report or deal with it in a manner that was inconsistent with the basis on which ASADA had provided the report to the AFL. I was made aware by ASADA's staff and lawyers of media reports that Mr Demetriou was saying things to the effect that the AFL would be 'transparent and open'. On 13 August 2013, following a meeting with Ms Perdikogiannis, I called Mr Clothier and asked for an assurance that the interim report would not be made public. Mr Clothier gave that assurance verbally. Annexed to my affidavit and marked is a true copy of my note of my conversation with Mr Clothier on 13 August 2013.

A3727929 Page 14

66. concern increased on 14 August 2013 when I was informed that ASADA was contacted by lawyers representing Mr Hird claiming that the had used the interim report in a charge sheet issued by the AFL to Mr Hird. ASADA and its legal representatives exchanged correspondence with the on this specific issue, and other issues concerning the AFL's use of the interim report, between 14 and 26 August 2013. A true copy of the exchanges on this issue are Annexure to my affidavit.

67. Following the exchanges in Annexure , ASADA and the AFL negotiated and entered into a protocol concerning the AFL's handling of the interim report

Annexed to my affidavit and marked is a copy of the Protocol. From my perspective, the purpose of the Protocol was to cement the restrictions which ASADA had sought to impose on the AFL's use and disclosure of the interim report.

68. At all times after the interim report was first provided by ASADA to the AFL on 2 August 2013, I considered that it had been provided to the AFL strictly on the terms set out in my letter of 2 August 2013.

A3727929 Page

69. On about 28 December 2013 I saw media reporting which made me concerned that the media had access to the interim report. I rang Mr Clothier and mentioned the media report to him. I asked about the information in the data room. Mr Clothier told me that the data room had been shut down although the AFL had kept a hard copy of the material that was in the data room, as had some of lawyers for the affected parties (such as Mr Hird's and Essendon's lawyers).

Sworn by the deponent

at Canberra

in the Australian Capital Territory

on 22 July 2014

Before me:

Signature of witness:

Name of witness:

Justin Davidson

Qualification of witness:

Solicitor

A3727929 Page 16

ESSENDONFOOTBALL 004286373

Applicant

AUSTRALIAN SPORTS

Respondent

JAMES AlBERT HIRD

Applicant

THE CHIEF EXECUTIVE OFFICER AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY

Respondent

NO

VID 328 OF 2014

The following 1 page is the annexure marked "AA-1" referred to in the affidavit of Aurora Kristine Andruska PSM made 22 July 2014 before me:

............... ----~ Signature

Qualification

Filed on behalf of the Respondent

Prepared by: Justin Davidson

Australian Government Solicitor.

Address for Service: Australian Government Solicitor, Level 21, 200 Queen St, Melbourne, VIC 3000 [email protected]

File ref: 14097050

Telephone: 03 92421248 Lawyer's Email:

[email protected] Facsimile: 03 9242 1333

DX 50 Melbourne

17

I

ESSEN DON

ACN 004286 373

Applicant

CHIEF

Respondent

JAMES AlBERT HIRD

Applicant

THE CHIEF EXECUTIVE OFFICER

AUSTRALIAN SPORTS ANTI·DOPING AUTHORITY

Respondent

201

The following 3 pages is the annexure marked "AA-2" referred to in the affidavit of Aurora Kristine Andruska PSM made 22 July 2014 before me:

Qualification





A3750872

File ref: 14097050

Telephone: 03 9242 1248 Lawyer's Email:

[email protected] Facsimile: 03 92421333

DX 50 Melbourne

19

ASA0005.6079

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Applicant

"',",L'''''' SPORTS Respondent

JAMES AlBERT HIRD

Applicant

THE CHIEF EXECUTIVE OFFICER AUSTRAliAN SPORTS ANTI-DOPING AUTHORITY

Respondent

201


Signature

Qualification





A3750872

File ref: 14097050



DX 50 Melbourne

23

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24

ESSEN DON r:::nt''\'TC

ACN 004286 373

Applicant

Respondent

JAMEs ALBERT HIRD

Applicant

THE CHIEF EXECUTIVE OFFICER AUSTRALIAN SPORTS ANTI·DOPING AUTHORITY

Respondent

328


Qualification





A3750872

File ref: 14097050



OX 50 Melbourne

25

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FOOTBALL

ACN 004286373

Applicant

Respondent

JAMES ALBERT HIRD

Applicant


Respondent

NO


Qualification





A3750872

File ref: 14097050



DX 50 Melbourne

27

Print Article: Essendon statement Page I of 1

Published: February 5, 2013 - 5:34PM

From Essendon president David Evans

Over the last 48 hours, the Essendon Football Club has received information about supplements that have been given to our players as part of the fitness program in 2012.

Given the information we received and the questions it has raised, we have taken the following action:

Firstly we, consulted with our staff, briefed our Board and all our players.

Secondly, we contacted the AFL and earlier today we met with GilIon McLachlan and Brett Clothier to brief them, and to seek ·rjvice. Following that discussion we requested that the AFL commence an immediate investigation.

hirdly, today the Essendon Football Club contacted ASADA, the Australian Sports Anti-Doping Authority and requested their assistance in an investigation.

We offered the full cooperation of everyone at the club and ASADA has informed us that they will commence the investigation immediately.

Of course, this is very distressing for our club, our Executive, our players and our board. We believe as a club that we have done everything to be compliant with the rules and regulations of the AFL and ASADA.

But, the integrity of the club is critical for the people sitting at this table - and of course for the broader Essendon family, and that is why we have moved quickly today to call the AFL and ASADA to seek a clean bill of health.

I appreciate that there is a lot of questions and many that we will not be able to answer today.

We want this investigation to go where it will, and our club at every level will cooperate. We believe that we have acted today in a sensible and responsible way, and we now want the investigation to take its course.

Th is sto I)' was f01(nd at: http://www.tlzeage.com.au/afl/ajl-news/esselldoll-statement-20] 30205-2dwa k. h till!

http://www.theage.com.au/action/printArticle?id=4007612

28

Victoria

FOOTBALL ACN 004286373

Applicant

Respondent

JAMES ALBERT HIRD

Applicant


Respondent

328 201


Signature

Qualification





A3750872

File ref: 14097050

Telephone: 0392421248 Lawyer's Email:


OX 50 Melbourne

29

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ESSENDONFOOTBAllClUB ACN 004 286 373

Applicant

THE AUSTRALIAN SPORTS

Respondent

JAMES AlBERT HIRD

Applicant


Respondent

327

328 201

The following 3 pages is the annexure marked "M-7" referred to in the affidavit of Aurora Kristine Andruska PSM made 22 July 2014 before me:

Qualification





A3750372

File ref: 14097050


[email protected] Facsimile: 0392421333

OX 50 Melboume

31

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34

ESSENDONFOOTBAllClUB 004286373

Applicant

Respondent

JAMES AlBERT HIRD

Applicant


Respondent

4

328 2014

The following 1 page is the annexure marked "M-8" referred to in the affidavit of Aurora Kristine Andruska PSM made 22 July 2014 before me:

Signature

Qualification





A3750872

File ref: 14097050



OX 50 Melbourne

35

36

ESSENDONFOOTBALL ACN 004286 373

Applicant

AUSTRALIAN SPORTS

Respondent

JAMES ALBERT HIRD

Applicant


Respondent

328 2014


Qualification





A3750872

File ref: 14097050


Craig. [email protected] Facsimile: 0392421333

OX 50 Melbourne

37

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DIVISION:

ESSEN DON FOOTBALL ACN 004 286 373

Applicant

SPORTS

Respondent

JAMES ALBERT HIRD

Applicant


Respondent

328 201


Qualification





A3750872

File ref: 14097050



DX 50 Melbourne

41

42

ESSENDONFOOTBALL ACN 004286 373

Applicant

THE CHIEF

,-ru ... ''''''''' SPORTS

Respondent

JAMES ALBERT HIRD

Applicant


Respondent


Qualification





A3750872

File ref: 14097050



DX 50 Melbourne

43

44

45

47

ESSENDON FOOTBALL 004286373

Applicant

AUSTRALIAN SPORTS

Respondent

JAMES ALBERT HIRD

Applicant


Respondent

4

328 2014


Qualification





A3750872

File ref: 14097050



DX 50 Melbourne

48

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52

GENERAl

ESSEN DON 004286373

Applicant

AUSTRALIAN SPORTS ANTI·DOPING

Respondent

JAMES AlBERT HIRD

Applicant


Respondent

VID 328 OF 2014


Qualification





A3750872

File ref: 14097050



OX 50 Melbourne

53

ASA.0005.6725

DRAFT

TABLE OF CONTENTS

REPORT TO THE AFL

1. Executive Summary

2. Conditions on release of the report

3. The environment at Essendon Football Club

a. Substances involved

b. Shortcomings of supplement program

c. ASADA's continuing investigation with respect to support personnel

4. The players

a. Overview of the investigation process

b. AOD9604

i. Background

ii. Specific evidence of use of AOD9604

iii. Status of AOD9604 from a WADA and ASADA perspective

iv. Where relevant, extent to which defences are applicable

v. Conclusions 4 01 r'-C; ~--..0~ V'\,/v·o..V'v--4'/Q....

c. Conclusion and next steps Av D - '1 10 0 q, J11.'V~--v

ole)'c?vJ~, /u... f:?~Je..-.v·-"

~~ e-v....-,"-I....EL ld"t.I/<f i- If;,-,

'''''Lee {:;:;; I\f)~,-,,-<. ')

Australian Sports Anti-Doping Authority \ Document No 2 - AFL - not for distribution 25 June 2013

54

GENERAl

ESSEN DON c"",,,-re

ACN 004 286 373

Applicant

CHIEF AUSTRALIAN SPORTS

Respondent

JAMES AlBERT HIRD

Applicant


Respondent

NO VID 328 201


Signature

c;

Qualification





A3750872

File ref: 14097050



DX 50 Melbourne

55

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56

ESSENDONFOOTBAll 004286373

Applicant

THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY

Respondent

JAMES AlBERT HIRD

Applicant


Respondent

NO 328 OF 201

The following 2 pages is the annexure marked "AA-i5" referred to in the affidavit of Aurora Kristine Andruska PSM made 22 July 2014 before me:

Qualification





A3750872

File ref: 14097050



DX 50 Melbourne

57

ASA.0005.6732

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DIVISION:

ESSENDONFOOTBAll

004286373

Applicant

AUSTRALIAN SPORTS ANTI-DOPING

Respondent

JAMES AlBERT HIRD

Applicant


Respondent

328 OF 2014


Qualification




Address for Service: Australian Government Solicitor, Level 21, 200 Queen St, Melbourne, vie 3000 [email protected]

A3750872

File ref: 14097050



OX 50 Melbourne

60

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61

GENERAL

ESSEN DON FOOTBALL ACN 004 373

Applicant

CHIEF AUSTRALIAN SPORTS

Respondent

JAMES ALBERT HIRD

Applicant


Respondent

VID 328 OF 2014


Qualification





A3750872

File ref: 14097050


Craig. [email protected] Facsimile: 0392421333

DX 50 Melbourne

62

Australian Government

Australian Sports lll!ll-.!.'UIJUl~ Authority

Onice of the Chief Executive Officer

2 August 2013

Mr Andrew Demetriou

Chief Executive Officer

Australian Football League

Unit 6, 5 Tonnanl Slreel Fyshwlck ACT 2609

PO 80x,1744 fyshvAck ACT 2609 AUSTRALIA

T 13000 ASMJA (13 000 27232) f +61 (0) 2 6222 4201 E [email protected] Yr,,\'(.asadiLgov.au ABM 91 592 527 609

Please find attached a copy of ASADA's interim report into the investigation at the Essendon Football

Club.

The interim report contains information uncovered by the investigation as at 1 August 2013. It is

important to note that ASADA's investigation is continuing- in that context, it is possible that

further material may come to light that will change the nature of the evidence, or the findings in the

interim report.

Basis on which this interim report is being provided

Although ASADA's investigation of possible anti-doping rule.violations is continuing, I am able to

disclose information to the Australian Football League (AH) under Article 4.7 of the AFL Anti-Doping

Code and clause 4.21 of the National Anti-Doping (NAD) Scheme (Schedule 1 to the Australian Sports

Anti-Doping Authority Regulations 2006).

Under Article 4.7 of the AFL Anti-Doping Code, ASADA has an obligation to report to the AFL on the

exercise of its anti-doping functions, including its investigative functions.

The interim report contains information thatis "NAD scheme personal information" within the

meaning of the Australian Sports Anti-Doping Authority Act 2006, and that is therefore subject to

section 71 of that Act.

This information will generally also be information that does not arise out of any entry on the

Register maintained under the NAD Scheme and relates to persons in connection with a possible

anti-doping rule violation by athletes and support persons, and that is therefore covered by clause

4.21 ofthe NAD Scheme. Some of the Information was collected by the AFL or has already been

disdosed to the AFL.

" .<

.. .;. AUSTRALIA'S DRiviNG FORCE FOR· .'.:. PURE P.ERFORW.tlcE IN SPORT

63

To the extent that the interim report contains NAD Scheme personal information that the AFL did

not collect and has not already been disclosed to the AFl, it cannot be disclosed to the AFL except

for the purposes of the NAD scheme (section 71(1), (2)(b l). Disclosure of information under clause

4:21 of the NAD Scheme is disclosure for the purposes of the NAD Scheme and falls \ll(ithin the

exception to the prohibition on disclosure in section 71(2)(b).

The relevant information can be disclosed to the AFL under clause 4.21 of the NAD Scheme for the

purposes of, or in co-nnection with, the administration of the NAD Scheme. The NAD Scheme would

prevent the relevant information (the Interim report) being made public.

I am providing the AFl with the interim report in connection with my investigation under the NAD

Scheme, noting that the interim report is the culmination of our joint investigation to date and the

starting point for further investigation.

Please provide me with your comments on the interim report. _ For example, I am particularly

interested in receiving the AFL's views on the necessity for me to use my new powers to gain further

information a!:iout specific substances provided to players and their contents. ~

I note that use and disclosure by the AFL of the information in the interim report is subject to the

operation 6fthe National Privacy Principles in the Privacy Act 1988. The Principles would preclude

making the interim report public.

Havipg said that, the interim report has been red acted in a number of places. The following

categories of information have been redacted from the interim report:

Material from other Austra[jan Government-agencies that ASADA IS unable to lawfully

provide to the AFLi

<I> Internal ASADA communications that are not relevant to the investigation and ail references

in the footnotes to internal A~ADA file references;

.. Text describing cpnduct that appears to be a possible anti-doping rule violation not relevant

to Essendon;

.. Material that is relevant to other ASADA investigations; and

" Sensitive medical information.

Area of further investlg<;ltion - possible use of other prohibited substances by Essendon players

The investigation has established that WADA prohibited substances such as Hexarelin, Thymosin

Beta 4 and SARM S-22 were stored on the Essendon Football Club premises.

It has also been established that an Essendon support person administered Hexarelin to other

Essendon personnel: At this stage, ASADA nas not been able to establish that Essendon players were

administered with this substance. This is also the case for SARM S-22.

During the investigation, players in interviews expressed their knowledge or their beliefthat they

were injected with Thymosin. Based Ol) the material uncovered during the course of the

investigation, there is strong circumstantial evidence that the Thymosin that Essendon players were

injectedwith was Thymosin Beta 4.

2

64

! ,

However, at this stage ASADA does not consider that it has sufficient evidence to establish to the

comfortable satisfaction of a hearing panel that specific players were in fact administered

Thymosin Beta 4.

ASADA's investigation into these matters is continuing - the commencement of the Australian Sports

Anti-Doping Authority Amendment Act 2013 will enable other lines of inquiry to be pursued with a

view to establishing the substances that were in fact administered to Essendon players.

Should ASADA take the view that anti-doping rule violations can be established against one or more

players in relation to the use of these substances, ASADA intends to proceed with these violations.

While the ava i1ability of any defences will depend on the circumstances of each player, the evidence

so far suggests that the defence of no fault, no negligence is unlikely to be able to established by any

player.

AOO-9604

In relation to the issue of AOD-9604, ASADA will make a public statement about its proposed

approach in all sports to the enforcement of possible anti-doping rule violations involving this

substance that occurred prior to the World Anti-Doping Agency's media release of 22 April 2013.

Conclusion and neKi: steps

Should ASADA, follOWing the conclusion of its investigation, ·make an assessment that it is possible

that an individual or individuals have committed anti-doping rule violations, those persons will be

given the opportunity to respond to those aliegatJons at that point in time, in accordance with the

scheme provided for in the Australian Sports Anti-Doping Authority Act 2006.

Following that process, ASADA will make recommendations to the AFL for the issuing of infraction

notices to relevant persons, at which point those persons will be able to elect whether or not to

exercise their right to a hearing before the AFL Anti-Doping Tribunal.

As I stated earlier in my letter, I look forward to your comments on the interim report, and will take

these into account in the continuation of my investigation. Please convey these to Paul Simonsson,

Director Intelligence and Investigations, at [email protected].

Yours sincerely

Aurora Andruska PSM


3

65

ESSENDONFOOTBALLCLUB

ACN 004 286 373

Applicant

THE CHIEF SPORTS ANTIQDOPING AUTHORITY

Respondent

JAMES ALBERT HIRD

Applicant


Respondent

4

NO VID 328 201


Signature

Qualification





A3750872

File ref: 14097050



OX 50 Melbourne

66


Australian Sports A)lti-Doping Authority

Otrlce of the Chlef Executive Officer

7 August 2013

Mr Andrew Demetriou



~~ Dear M~Jemetriou

l \ )

Unil6, 5 Tennant Street Fyshwick ACT 2609 PO 8ox\1744 Fyshwlck ACT 2609 AUSTRAliA

T 13 ODO ASADA (13 ODO 27232) f +61 (0)26222 4201 E [email protected] VI~,asad.,gov,au ABN 91 592527 503

~"'. -.

I refer to ASADA's letter. to you dated 2 August 2013 (attached) whereby ASADA disclosed to you a

copy-of our Interim Report, Please find attached an electronic Microsoft Word version of the report

. which is a copy of the same Interim Report disclosed to you with some alterations in redactions.

I draw your attention to the section in our 2 August 2013 letter that is titled "Basis on whiCh this

interim report is being provided", Please note that the attached report is being provided to you on

exactry the same basis as outlined on 2 August 2013. We ask that you please attach the 2 August

2013 letter and this letter to the attached report so that anyone who has access to the attached

report can'read the basis on which the Interim Report is being provided by ASADA.

Yours sincerely

Aurora Andruska PSM


DETERRENCE· DETECTION· ENfORCEMENT AUSTRflLlt.'S DRIVING fORCE fOR PURE PERFORMANCE IN SPORT

67


Office oHhe Chief Executive Officer

3 August 2013

Mr Andrew Demetriou



~ Dear M~trlOO

.I I I

f I '

Unlt I?, 5 Tenoant Sjreet Fyshwick ACT 2609 PO 80x\1744 F)~hwick ACT 2609 AUSTRALIA

T 13000 ASAOA (13 000 27232) f +61 (0) 2 6222 4201 E [email protected],au ww~;asada.gov.llu ABN 91592 527503

I refer to my correspondence to you dated 2 August 2013 and 7 August 2013 (attached). Please find

attached an electronic Microsoft Word version of the report which is a copy of the same Interim

Report disclosed to you previously with some further al~erations in redactions.

I draw your attention to the section in our 2 August 2013 letter that is titled /lBasis on which this

interim report is being provided". Please note thatthe attached report is being provided to you on

exactly the same basis as outlined on 2 August 2013. We ask that you please attach the.2 August

2013 letter, 7 August 2013 letter and this letter to the attached report so that anyone who has

access to the attached report can read the basis on which the Interim Report is being provided by

ASADA.

Can I draw your attention to the sections in my 2 August 2013 letter which prevent the publication

of any ofthe material in the report under the NAD Scheme and Privacy Act.

Yours sincerely

Aurora Andruska PSM


AUSTRALIICS OR'IVING fORCE FOR EURE PERfORMAN~.E It I SPORT

..... ,

68

c-\.

/ I )


Australian Sports Anti-Doping Authority

Unit 6, 5 Tenrumt Street fyshwick ACT 2609 PO Boxb44 Fyshwick ACT 2609 AUSTRAUA

.. .\ fi3'600 ASADA ·(iil·oYJ 27232) f +<;1 «l( 2 6222 4201 E [email protected] . www,asada.gov.au A8N 91 592527503

Office of the Chief Executive Officer

12 August 2013

. Mr Andrew Demetriou


Australian Football league

~ DearM~U

I refer to my correspondence to you dated 2 August 2013, 7 August 2013 and 8 August 2013

(attached). Please find attached an electronic Microsoft Word v~rsion of the report which is a copy

of the same I nterim Re port disclosed to you previously with some further alterations in redactions.

I draw your·attention to the section in our 2 August 2013 letter that is titled "Basis on-which this

:interim report is being provided". Please note that the attached report is being provided to you on

exactly the same basis as outlined on 2 August 2013. We ask that you please attach the 2 August

2013 letter, 7 August 2013 and 8 August r013 letter !'md this letter to the attached report so that

anyone who has access to the attached report can read the basis on which the Interim Report is

being provided by ASADA.

Can I draw your.atlention to the sections in my 2 August 2013 letter which prevent the publication

of any of the material in the report under the NAD Scheme and Privacy Act.

Yours sincerely

Aurora Andruska PSM


-_.- ....

¥.:':'k . .:. ... : ..

' .. AUSTRAUA'S DRtVIN.G ~OR~E fOR·

._.: ., ,:.~, P.ll.R!£~.i:.0~:!.M!:l.~E .IN.~O.R!_ ...

\ i

/

69

DIVISION: GENERAL

ESSEN DON FOOTBALL

ACN 004 286 373

Applicant

THE CHIEF LAILC'L6U

Respondent

JAMES ALBERT HIRD

Applicant


Respondent

NO

NO VID 328 OF 2014

The following 1 page is the annexure marked "AA-19" referred to in the affidavit of Aurora Kristine Andruska PSM made 22 July 2014 before me: ~/

pr~~?~"-

................. ( ........................................ . Signature ~

Cl

Qualification





A3750872

File ref: 14097050


Craig.Rawson(ci)ags.gov.au Facsimile: 0392421333

OX 50 Melbourne

70

------------------

ESSEN DON FOOTBALL 004286373

Applicant

AUSTRALIAN SPORTS

Respondent

JAMES ALBERT HIRD

Applicant


Respondent

VID 4


Qualification




Address for Service: Australian Government Solicitor, Level 21, 200 Queen SI, Melbourne, VIC 3000 [email protected]

A3750872

File ref: 14097050



OX 50 Melbourne

72

.. _ .. _ ............. __ .. _ .. _._. _______ ~~2~~~~~--

----------_._-_.-'-------

ESSEN DON FOOTBALL CLUB 004286373

Applicant

CHIEF '-,,~_vu AUSTRALIAN SPORTS ANTI~DOPING

Respondent

JAMES ALBERT HIRD

Applicant


Respondent

4

328 OF 201

The following 33 pages is the annexure marked "AA-21 " referred to in the affidavit of Aurora Kristine Andruska PSM made 22 July 2014 before me:

................. ~~~-~

Signature

Qualification




Address for Service: Australian Government Solicitor, Level 21, 200 Queen SI, Melbourne, VIC 3000 [email protected]

A3750872

File ref: 14097050



DX 50 Melbourne

74

/'

From: Sent: To: Cc: Subject: Attachments:

Dear Andrew,

Elen Perdikogiannis <[email protected]> Thursday, 15 August 2013 2:53 PM [email protected] [email protected]; Bill Rowe; Darren Mullaly RE: James Hird - charges and Statement of Grounds [SEC=UNCLASSIFIEDJ ASADA - AFL letter 15 August 2013.pdf

Following on from yesterday's email, please find attached correspondence from ASADA.

Regards Elen

Elen Perdlkcgiannis GM Anti~Doping Programs and Legal Services Australian Sports Anti~Doping AUthority

. +61 (0) 2 6222 .u.267 M +61 (0) 434 532 206 F +()1 (0) 2 6222 4367

[email protected] VJ w'NN,asada,QOv.8U

ASADA HoWna 13000 ASADA (13 000 27232)

Please consider our environment before printing this emaiJ.

From: [email protected] [mailto:[email protected]] Sent: Wednesday, 14 August 2013 11:41 AM To: Elen Perdikogiannis Cc: [email protected]; Bill Rowe; Darren Mullaly Subject: RE: James Hird - charges and Statement of Grounds [SEC=UNCLASSIFIED]

Hi Elen Thanks for your note -I have referred to our external solicitors for their view.

(I We will get you a response as soon as possible.

Regards Andrew

<:;TOYOTA 'HYHtu:.~1

Andrew Oillon General Counsel General Manager - Legal, Integrity and Compliance AFL HOUSE 1140 Harbour Esplanade I Docklands VIC 3008 GPO Box 1449 I Melbourne VIC 3001 Ph: (03) 9643 19411 Fax: (03) 96431871 Please consider the environment before printing this email

75

Elen Perdikogiannis [mailto:[email protected]] Sent: WednesdaYr 14 August 2013 11:36 AM

Andrew Oillon Cc: Brett Clothier; Bill Rowe; Oarren Mullaly __ ,~-'~._~. James Hird - charges and Statement of Grounds [SEC=UNCLASSIFIED]

Dear Andrew,

ASADA has received correspondence from Ashurst (Steven Amendola) solicitors for Mr Hird, asserting that the Statement of Grounds that the AFL has attached to their client's charge sheet (and those of Messrs Thompson, Corcoran and Reid) makes reference to evidence and findings contained in the ASADA Interim Report. The Ashurst letter also states that the Statement of Grounds also reproduces evidence contained in the ASADA interim report.

Ashurst has sought ASADA's urgent response in relation to these matters. We would appreciate it you could provide ASADA with a copy of Mr Hird's charge sheet and the Statement of Grounds so that we are in a position to respond to the Ashurst letter.

Thank you Elen Perdikogiannis

E!en PerclHwg1annis GM Anti-Doping Programs and Lega! Services AustrHlian Sports Anti-Doping Authority

T .,.61 (0) 2 (3222 4267 M +6'i (Ol 434 532 206 F +61 (0) 2 6222 4367

E [email protected] Vi Vl'v\r}~0§ada.g~S1!

ASADA Hotline 13000 ASADA (13 000 272:12)

Please consider our environment before printing this em ail.

>},i:**'1:'k'J:*****-J:*******-k'1:**"l:-J:1:***oJ:,}:*-J:*-J:**-J:*******'}:'J:-I:-J:**'l:**-J:*****1:**

IMPORTANT

The information contained in this e-mail message and any attached files may be confidential information and may also be the subject of legal professional privilege. It remains the property of the Australian Sports Anti-Doping Authority (ASADA). If you are not the intended reCipient, any use, disclosure. retransmission or copying of this e-mail is unauthorised. If you have received this e-mail in error. you are requested to notify the sender immediately by reply e-mail and delete the original e-mail together with any attachments.

******** ... ,,**********-J:'I:**i:1:1:*1:*.:::** .. -:1d:*****·J:·/:*'!:oJ:oJ:i:**1:-):*"J:1:'"1.*****1:*1:*

Message protected by MailGuard: e-mail anti-virus, anti-spam and content filtering. http://www.mailguard.com.au/mg

This e-mail and any files transmitted with it are intended for the named addressee, are confidential in nature and may contain legally privileged infoTI11ation. The copying or distribution of this e-mail or any infonnation it contains, by anyone other than the addressee or the person responsible for delivering this email to the intended addressee, is prohibited. Any views or opinions represented in this e-mail are solely

2

76

( J

those of the author and do not represent those of the organisation. If you receive this communication in en'or, please notify the sender inunediately, then delete the e-mail.

Message protected by MailGuard: e-mail anti-virus, anti-sparn and content filtering. http://www.rnailguard.com.auimg

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77


Australian Sports Anti-Doping: Authority

Mr.Andrew Oillon General Counsel Australian Football League

By email: [email protected]

Dear Mr Dillon,

Unit 6, 5 Tennant Street Fyshwick ACT 2609

PO 80;'.1744 Fysllwick ACT 2609 AUSTRI,UA T 13 00:) ASADA (13 DOQ 27232) F +61 (0) 2 6222 '1201 E as,[email protected]

. I'/wi',asada.gov.au ABN 91 592527 503

This letter follows on from my email to you of 14 August 2013, As I mentioned in that email, ASADA has received correspondence from the solicitors for Mr HiI'd regarding their client's charge sheet and supporting material (described in the Ashurst letter as the "Statement of Grounds"}. .

Ashurst asserts that the supporting material that the AFL has attached to their client's charge sheet refers to "evidence and findings" contained in the ASADA Interim Report. The Ashurst letter also asserts that the Statement of Grounds "reproduces evidence" contained in the ASADA interim report.

While ASADA is not presently in a position to assess the veracity of the assertions in the ft.shurst correspondence, given that correspondence, it is worth.ASADA restating the grounds on which the Interim Report was provided to the AFL.

ASADA provided its Interim Rep'ort to the AFL on 2 August 2013 under cover of a letter . which stated (inter alia);

Basis 011 which this interim report is being provided

Although ASADks investigation of possible anti-doping rL{le violations is continuing, I am able to disclose information to the Australian Football League (AFL) under Article 4.7 of the AFL Anti-Doping Code and clause 4.21 of the National Anti-Doping (NAD) Scheme (Schedule 1 to the Australian Sports Anti-Doping Authority Regulation 2006).

Under Article 4.7 of the AFL Anti-Doping Code, ASADA has an obligation to report to the AFL on the exercise of its anti-doping functions, including. its investigative functions.

The interim report contains information that is "NAD scheme personal informationll

within the meaning of the Australian Sports A~ti-Doping Authority Act 2006, an'd that is therefore subject to section 71 of that Act.

This information will general also be information that does not arise out of any entry on the Register maintained under the NAO Scheme and relates to persons in connection with a possible anti-doping rule violation by athletes and support persons, and that is therefore covered by clause 4.21 of the NAD Scheme. Some of the information was collected by the AFl or has already been disclosed to the AFL.

To the extent that the interim report contains NAD Scheme personal information that

DETERRENCE. DETECTION. ENFORCEMENT AUSTR,\UN$.DRIVING FORCE FOR PURE PERFORMANCE iN SPORT

78

the AFL did not collect and has not already been disclosed to the AFl, it cannot be disclosed to the AFL el:(cept for the purposes of the NAD scheme (section 71(1), (2)(b)). Disclosure of information under clause 4.21 of the NAD Scheme is disclosure for the NAD Scheme and falls within the exception of the prohibition on disclosure in section 71(2)(b).

The relevant information can be disclosed to the AFL under clause 4.21 of the NAD Scheme for the purposes of, or in connection with, the administration of the NAD Scheme. The NAD Scheme would prevent the relevant information (the interim report) being made public.

I am providing the AFL with the interim report in connection with my investigation under the NAD Scheme, noting that the interim report is the culmination of our joint investigation to date and the starting point for further investigation.

A copy of this letter is attached.

Further versions of ASADA's Interim report (with alterations in redactions) were provided to the AFL on 7, 8 and 12 August 2013. On each occasion the covering letter accompanying provision of the Interim Report specifically confirmed that the Interim Report had been provided to the AFL on the same basis as outlined in ASADA's letter of 2 August 2013. I note the AFL has not sought to take issue with ASADA about the basis on which the Interim Report has been provided to it.

In ASADA's view, there is a distinction between providing the Interim Report to Essendon to get its comments for the purpose of the ongoing investigation into possible anti-doping rule violations and providing it as a basis for bringing disciplinary proceedings against Essendon and its personnel for breaching the AFL Rules.

ASADA is concerned about the suggestion in the Ashurst letter that the AFL has, and proposes, to use "evidence and findings" contained in the Interim Report in its Statement of Grounds and the AFL's disciplinary hearing of the charges. ASADA is concerned that such evidence and findings from the Interim Report may include NAD Scheme personal information that the AFL did not collect and has not already been disclosed to the AFL, for the purpose of initiating and prosecuting charges under the AFL Rules. Such use would not be consistent with the purpose for which ASADA expressly provided the Interim Report to the AFL and may not be consistent with the National Privacy Principles.

ASADA would object to the use by the AFL for its internal disciplinary purposes, the evaluations, opinions and conclusions expressed by ASADA's investigators contained in the interim report. Obviously, ASADA does not object to the AFL using material which the AFL itself has sourced such as the Deloitte material.

My email to you of yesterday also requested that you provide ASADA with a copy of the Statement of Grounds from the AFL so that we were in a position to respond to the Ashurst letter. In response, you stated that you would need to obtain legal advice on the question of whether this material could be provided to ASADA. I now request that you expedite this request to enable ASADA to assess the veracity of the Ashurst assertions.

Furthermore, ! seek your written confirmation by 4.00pm 16 August 2013, that:

(a) the AFl has accepted and used the Interim Report and the information in it solely

79

on the basis set out in ASADA's letter dated 2 August 2013 (extracted above); and (b) the AFL has not used, and will not lIse, personal information contained in the

Interim Report, which may include NAD Scheme personal information that the AFL did not collect and has not already been disclosed to the AFl, for the purpose of initiating and prosecuting charges under the AFl Rules.

If there is a difficulty about meeting this time frame could you please let us know the reason for this and when we can expect to have a substantive response.

I look forward to your prompt response. Please contact me if you have any queries.

Yours sincerely

~~ Elen pe?a~nniS -

General Manager Anti-Doping Programs and legal Services

80

the leading lawyers to government

(

Australian Government Solicitor level 21, 200 Queen Street Melbourne VIC 3000

GPO Box 2853 Melbourne VIC 3001 T 0392421222 F 0392421333 DX 50 Melbourne

19 August 2013

Mr Andrew Dillon General Manager - Legal and Business Affairs Australian Football League

Via Email: [email protected]

Dear Mr Dillon

ASADA Investigation: Essendon Football Club

www.ags.gov.ou

Canberra Sydney Melbourne Brisbane Perth Adelaide Hobart Darwin

We now act for the Australian Sports Anti-Doping Authority (ASADA) and we write further to ASADA's letter dated 14 August 2013. ASADA has been informed by the solicitors for Mr Hird that they have been given access to the Data Room maintained by the AFL's legal representatives and have been able to access more than 1,300 documents.

Could you please advise us of the protocols surrounding any provision of access to documents in this data room to Mr Hird's legal representatives?

Further, can you please advise us of the basis of any access, and the protocols for any such access to material disclosed by ASADA to the AFL under clause 4.21 of the National Anti-Doping Scheme?

In addition, we note that Andrew Demetriou is reported as stating on 3AW in an interview with Neil Mitchell that the AFL Commission may hold a public hearing and that it is the AFL's "intention to release" the Interim Report.

ASADA also notes the comments attributed to Mr Demetriou on the AFL.com website in which it states that "he corrected claims that the interim ASADA report could not be used at the hearing" and that he said "the plan was to refer to ASADA's report in the hearing".

ASADA notes that any public disclosure of the Interim Report or its use in a public hearing would be contrary to the NAD Scheme, the Privacy Act 1988 and the basis on which it was supplied to the AFL.

A2125626

81

Australian Government Solicitor

We seek your urgent response by 4.00pm today, failing which ASADA may take such further action as it is advised without further notice.

Y2~/;thUIJv(PJ Craig Ri ;/)on Senior Extu~ive Lawyer T0392421248 F0392421317 M 0419 230 709 craig [email protected]

ASADA Investigation: Essendon Football Club 19 August 2013 A2125626

Page 2

82

From: Sent: To: Cc: Subject: Attachments:

Dear Sir

[email protected] Monday, 19 August 2013 5:22 PM Rawson, Craig [email protected] RE: ASADA investigation - Essendon Football Club ... [SEC=UNCLASSIFIEDl AGS Jetter190813.pdf; AGS Jetter190813 _ attachment.pdf

Attached is correspondence from the AFL.

Regards

c:::<TOYOTA H( ... (rhH~t#

Andrew Dillon General Counsel General Manager - Legal, Integrity and Compliance AFL HOUSE 1140 Harbour Esplanade I Docklands VIC 3008 GPO Box 14491 Melbourne vie 3001 Ph: (03) 9643 1941 I Fax: (03) 96431871 Please consider the environment before printing this email

From: Rawson, Craig [mailto:[email protected]] Sent: Monday, 19 August 2013 1:59 PM To: Andrew Dillon Subject: ASADA investigation - Essendon Football Club ... [SEC=UNCLASSIFIED]

Dear Mr Dillon.

Please see attached correspondence.

, . 0urs sincerely

Craig Rawson Senior Executive Lawyer Australian Government Solicitor T 03 92421248 F 03 92421317 M 0419 230 709 [email protected] Find out more about AGS at http://www.ags.gov.au

Important: This message may contain confidential or legally privileged information. If you think it was sent to you by mistake, please delete all copies and advise the sender. For the purposes of the Spam Act 2003, this email is authorised by AGS.

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This e-mail and any files transmitted with it are intended for the named addressee, are confidential nature and may contain legally privileged information. The copying or distribution of this e-mail or any infonnation it contains, by anyone other than the addressee or the person responsible for delivering this email to the intended addressee, is prohibited. Any views or opinions represented in this e-mail are solely those of the author and do not represent those of the organisation. If you receive this communication in error, please notify the sender immediately, then delete the e-mail.

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84

19 August 2013

EMAIL

Attention: Rawson Senior Executive lawyer Australian Government Solicitor Level 21 200 Queen Street MELBOURNE vie 3000

Dear Mr Rawson

I refer to your letter of today's date received at 1.S9pm. I note that the AGS is now acting for ASADA.

Set out below is the AFl's response to your requests concerning the AFl's disclosure of the ASADA Report and access to the Data Room maintained by our lawyers, Minter Ellison.

1. ASADA Report

Leaving aside the correctness of your assertion that any public disclosure by the AFL of the ASADA Report or its use in a public hearing will be contrary to the NAD Scheme, the Privacy Act 1988 and the terms on which it was supplied to the AFl by ASADA, I can confirm that it is not the AFL's present intention to make the ASADA Report public.

To the extent that the AFl publishes or otherwise discloses any information regarding its investigation, this will be information that is in the AFl's possession (other than by reason alone of the receipt of the ASADA Report) and/or that was obtained by the AFL pursuant to its powers.

2. Data Room

Minter Ellison is the administrator of the virtual Data Room which has been set up and is hosted by Ansarada on behalf of the AFL under a Service Level Agreement which the firm has in place with Ansarada. This agreement imposes obligations on Ansarada to (amongst other things) maintain the confidentiality and security of the Data Room, not to use or modify or to disclose to anyone other than approved users the contents of the Data Room, to keep the data confidential and to comply with the Privacy Act 1988 (Cth).

Many of the firm's clients (including the major banks) use Ansarada's services because it specialises in online secure data hosting for large international transactions and has the necessary security and user features, policies, procedures and techniques to protect the data. Ansarada's security and certification is best practice and independently audited. It holds accreditation and compliance with the globally recognised Information Security Management Systems (ISMS) standard, using 128 SSl (Secure socket layer) data transfer. It is also an ISO


AFL House 140 Harbour Esplanade Docklands Victoria 3008 Telephone 6139643 1999 Facsimile 61396431871 All correspondence to GPO Box 1449 lvlelboume Vicloria 3001 Australia www.afl.eom.au ABN 97 489 912318

INSTITUTED 1896

PR£.\llt::R PARTKl::It

85

- 2 -

27001 :20052005 certified data centre.

2.1 Security and audit features

As the Data Room administrator, Minter Ellison has administrative rights to the Data Room in order to upload material, invite/manage user access and manage document security (including audit reporting). A Data Room co-ordinator at Minter Ellison has been appointed to the Data Room to administer and oversee all aspects of the Data Room.

Minter Ellison has with the AFL's authority, full control over the use of the Data Room, including access to view, save and print.

The secure features of the Data Room include:

(a) only individuals who have been approved by the AFL and Minter Ellison are authorised to log on to the Data Room;

(b) the first time a user logs on they must enter their email address, a unique confidential password and answer a security question;

(c) dynamic watermarks have been applied to each document and user. These cannot be removed. This means that every document a user accesses and prints will have their named watermarked across each page;

(d) the system records every time a user accesses, views, edits and/or prints a document this will be recorded, including the user's name, their computer, the time and date of access, viewing, editing and printing. This enables a complete audit of the use of and access to the Data Room;

(e) no user is permitted to print out any documents in Folder 1 which is ASADA material only, that is the ASADA Report. They may only view the ASADA Report online;

(f) users are only permitted to print out documents in other folders which are documents that the AFL has gathered in the course of its investigation;

(g)

(h)

users cannot save any of the documents in the Data Room to their computers or copy and paste text from documents; and

only Minter ElIison have administrative rights to upload material to the Data Room.

Attached for your information is a fact sheet on Ansarada's security with specific reference to the features that apply specifically to the Data Room.

2.2 Confidentiality protocol and undertaking

Every AFL or Minter Ellison individual (as well as the barristers briefed on behalf of the AFL) who log on to the Data Room for the first time, must check a box to acknowledge and accept the terms of the confidentiality regime and to give the undertaking that appears on the screen. These terms are attached and govern each user's access to and use of the Data Room. All

86

other users (being external to the AFL, Minter Ellison and the AFL's barristers) must agree to and accept these terms every time they log on.

The preparation of hard copies of the ASAOA Report is restricted. Any individual who is issued with a hardcopy will have their name watermarked on each page of the report and are not permitted to make any further copies.

In light of the above, the AFL is confident that appropriate security controls and protocols are in place to protect the confidentiality of the Data Room, the ASAOA Report and the personal information in the ASAOA Report.

Yours sincerely

Andrew Omon General Counsel

87

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Peter CCH'npb(;,;!l, C~10. Sr:;crk.e Holrnof0 Lov"'yers

leVerage the latest security innovations from Adobe

Ansarada integrates best practice security technologies including Adobe's award winning Rights Management Server and .Ii,dobe Document Security Selver into its secure on line data rooms. This guarantees you compliance when distributing sensitive documents in major corporate transactions and projecls.

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Ansarada allows you to:

, See when a document has been viewed, printed or copied

, Encrypt documents including metadata to control participant access

• Control document use inside and outside the data room on 'per user' basis

, Revoke access 10 previously distributed documents

, Restrict document access to 'data room' only:

- Ho copying or changing contsnt ... Ho printing - Ho saving and viewing - ~ja print screen

, Apply expiration dales to documents

• Apply dynamic watermarks

through Cl web browser? Yes, it's here we've done the work for you

Wilh I\nsarada, security permissions are managed easily via a web brovvser - no downloads, no plug-ins. Updating access rights is 0 point and click sxercise, no need to upload revised or duplicate documents to the virtual data room.

A key advontage is that security con be applied to documents on 0 'user by user' basis. For example. third paliy data room participants con be restricted frOIii printing and copying documents, whilst you and your project learn benefit from having unrestricted print and copy access on those same documents.

88

jl~n5arada delivers you the tatest ,.,,,,,,..,N\f \filithout the

Ansorada's team has levercged the latest innovations from Adobe and bolstered their security, to offer you unique document protection, including:

, Security settings ailocated on a user basis - without requiring users to log into on additional interface or install any software or plug-ins

, Dynamic document watermarking - auto matic watermarking that IS applied to data room documents when they are opened. Details may include the user name, email address, dote, time IP address and more

, A tamper-proof legal grade audit trailrecording all actions and events, including printing.

, Documents that expire immediately after viewing - ensuring documents can only be viewed by authorised participants and are unable to be saved to local machines and viewed outside the secure data room environment

Cornp!y wtth and mcmage risk on the document level

Ansarada's document conirol is persistent - any policy set by tile data room administrator travels witll the document at all times. So regardless of where you allow ihe record to be used you can relax knowing that it is always in your cenirol.

Ansaraoa's security is simple to implement and adhere to

The Ansarada online data room facilities provide sophisticated security via an easy-io-use interface. Deal particioants enter the data room via a standard vveb brov/ser ~nd password then view and work on documents using Adobe Reader. It couldnt be simpler.

However, managing information security risks is not 011 about playing defense. You con and should take advantage of technologies. including digital rights management. to improve processes. reduce costs. and create efficiencies.

"As an ASX listed company, Investa has legal obligations fo maintain confidentiality and guard against leakage of market sensitive information before a proposal is finalised and announced. Ansarada's security measures and access· controls assisted us in safisfying those legal obligafions and ensuring confidentiality."

!'/i1cheHe Dance, C;roup Executive. Corpofote Finance !nv8sTo Property Group

Beyond strict document control. Ansorada provides rigorous infrastructure. orgonisatienal and appiication protections. All Ansarada's infrastructure is housed and managed from within an ISO 27001 :2005 oertified data centre

A.II data transferred to and from Ansarada dojo rooms is encrypted using 128 bit SSL (Seoure Socket Layer). and all stored documents and Question and Answer (Q&I",) interactions ore encrypted using 256 bit AES (Advanced Encryption Standard).

Your benefits at a glance:

• Superior protection of confidential information with the latest technology from trusted security experts

• Easy and simUltaneous access to documents for authorised users

c Fast, simple set up without the IT headaches - no investment in hardware or software (SaaS)

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• Increased intelligence on user and document activity

V~ant to take a doser look?

Call Ansarada loday to discuss your project needs or to arrange an obligation free demonstration.

"From a corporate governance perspective, Ansarada provides fhe ulfimale protection for our proprietary technology and IP."

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A.nsOfCdo is on ey.peri5f1Ced ord trvsled dalo room speciof:5t providing powc:du! virtual data room facmtias. protected by fhe highe!.>t 'BVeS of secUliiy. Ai'!sorooo's customlu::bie dolo roorns orB po'-t/ered t·y sophislicoled lec.hno1ogy Il10i accelerates projecis enobflng contrc.&E:d acc~ss by ml1lliple ussrs io serlSiHv6 inlormo1ion !,~cvrety and slrl1ply vie on in1eme1 brOWSer from an'rNh0re in lhe v;o:ld,

Sydney 161 2 8090 3400 Shanghai ~·o6212a90901~ London +44 10}20 3DSB 1060 Hong Kong +35221668131

89

the leading /a'll)!ers to government

Australian Government Solicitor Level 21. 200 Queen Street A4elbourne VIC 3000

GPO Box 2853 A4e/bourne VIC 3001 10392421222 F 0392421333 DX 50 ivielbourne

www.ags.gov.au

20 August 2013

Mr Andrew Oillon General Manager - Legal and Business Affairs Australian Football League


Dear Mr Oillon


Thank you for your letter dated 19 August 2013 which responded to the matters raised in our letter of that date and in earlier correspondence from ASADA sent on 14 August 2013.

Canberra Sydney Melbourne Brisbane Perth Adelaide Hobart Darwin

We note that your present intention is not to make the ASADA's Interim Report (and we assume any part of it) public. We trust that you will give us reasonable notice if your intention changes in this regard.

Your letter states:

"To the extent information that the AFL publishes or otherwise discloses any information regarding its investigation, this will be information that is in the AFL's possession (other than by reason alone of the receipt of the ASAOA Report) and/or that was obtained by the AFL pursuant to its powers."

It is in these circumstances, we do not presently see any reason for AS AD A's Interim Report (or any part of it) to be used at the hearing on 26 August 2013 or any adjourned hearing for:

a. proving the charges; or

b. determining any appropriate sanctions; or

c. exercising any other powers under the AFL Rules unconnected with the NAD scheme.

ASAOA has the powers and functions powers set out in its governing legislation (the Australian Sports Anti-Doping Authority Act 2006) and the regulations made under that Act. On 2 August 2013 ASAOA was concerned that it not exceed those powers and shared with you its interim report on a confidential basis as set out in the covering letter and the watermark on each page. This was repeated when the AFL requested and received the subsequent versions on ASAOA's Interim Report on 7 August 2013, 8 August 2013 and 12 August 2013. It may be that the AFL has

A2132659

90


different or broader concerns than those matters arising under or in connection with the NAD scheme with which ASADA is concerned.

As circumstances develop, please advise us as to what (if any) use you intend to make of ASADA's Interim Report (or any part of it) at the Commission's hearing on 26 August 2013 or any subsequent date.

Yours sincerely

{( If( {J;tvjJ~ Craig Rawson Senior Executive Lawyer T 03 9242 1248 F 03 9242 1317 M 0419 230 709 [email protected]


Page 2

91

21 August 2013

BY EMAIL

Attention: Aurora Andruska CEO ASADA Unit 6, 5 Tennant Street FYSHWICK ACT 2609

Dear Aurora

I refer to the letter from Elen Perdikogiannis sent to me by email on 15 August 2013.

Subject to the clarifications below, I confirm that the AFL has accepted from ASADA, and is using, its Interim Report (including subsequent versions with redactions) on the basis set out in ASADA's letter of 2 August 2013.

It is relevant to note the following matters:

" ASADA's letter records that the Interim Report is a culmination of a joint investigation by ASADA and the AFL.

ASADA's purpose and the AFL's purpose for conducting the investigation was to determine whether any person had committed an anti-doping rule violation. The AFL's purpose for conducting the investigation was also to determine whether the Essendon Football Club or any other persons otherwise engaged in conduct that contravenes the AFL Rules, the AFL AntiDoping Code or the AFL Regulations.

The disclosure of the Interim Report (induding any personal information or other information which forms part of it) is authorised by the Australian Sports Anti-Doping Authority Act 2006 (Cth)) and regulations made thereunder for, inter alia, "the purposes of' or "in connection with" ASADA's investigation.

These are cumulative bases for disclosure of the Interim Report to the AFL. The report may be disclosed either "for the purposes of" the ASADA investigation or "in connection with" the ASADA investigation. The phrase "in connection with" is of wide import and is to be contrasted with the narrower term, "for the purposes of".


AFL House 140 Harbour Esplanade Docklands Victoria 3008 Telephone 613 9643 1999 Facsimile 613 96431872 All correspondence to GPO Box 1449N Melbourne Victoria 3001 Australia www.afl.com.au ABN 97 489 912 318

INSTITUTED 1896

92

- 2-

Your letter of 15 August confirms that the Interim Report was provided to the AFl "in connection with" A5ADA's investigation, but purports to constrain the AFL from using the report other than "for the purposes of' the investigation. With respect, this position is incorrect as a matter of law;

While ASADA's purpose for conducting the investigation was to determine whether any person had committed an anti-doping rule violation, in the course of the investigation, evidence has been uncovered that relates to possible misconduct that is outside of the scope of the WADA Code. The misconduct pertains to possible doping in the AFl and sports science practices that may be a serious risk to health and welfare of AFL athletes.

The CEO's functions set out in section 21 of the Act fundamentally relate to "sports doping and safety matters" and includes the specific functions to "disseminate information about sports doping and safety matters".

.. It is totally appropriate for ASADA, having investigated possible anti-doping rule violations and uncovered evidence of serious issues relating to "sports doping and safety matters" that are not covered by the WADA Code to disclose such evidence to the sports administration body in question - in this case, the AFL.

'" This would properly be done "in connection with" an ASADA investigation and particularly so in the context of a joint investigation having been conducted with the AFL. Use of this information for AFL disciplinary proceedings would clearly be "in connection with" the ASADA investigation even if it might not be "for the purposes of' the ASADA investigation.

It would be incongruous, given ASADA's crucial role with respect to "sports doping and safety matters" in Australian sport for ASADA to keep such information confidential or to restrict the AFL from responsibly acting on such information now that it is disclosed. Our responsibility to act would include providing access to the report under suitable confidentiality arrangements to athletes whose health may be at risk.

As noted above, the words "in connection with" are of wide import and on their plain meaning are not intended to be interpreted so restrictively or artificially as set out in your letter of 15 August. The AFl here does not propose to use the information in the report for an ulterior or improper purpose, but in connection with a matter intrinsically linked to ASADA's functions.

$ The Statement of Grounds for the laying of charges highlights the close connection between ASADA's investigation and the AFl's disciplinary proceedings.

" I note that we forwarded you the joint memorandum from counsel dated 1 August 2013 which addresses this very issue, on a common interest privilege basis, prior to you providing the AFL with the Interim Report. That memorandum expressly referred to the Interim Report being used for the AFL's purposes of possible disciplinary proceedings.

" I also note that at our meeting with ASADA on 31 August 2011, it was agreed that the Interim Report would be provided to the AFl "in connection with" the ASADA investigation and that it was a matter for the AFL to ensure it complied with its obligations with respect to the use of the Interim Report.

93

- 3 -

While the AFL is not an "entrusted person" within the meaning of s 69 of the Act for the purposes of s 71 of the Act, it nonetheless recognises that it is subject to the privacy laws referred to in clause 4.21(4) of the NAD Scheme.

The AFL has not used, and has no intention of using, the Interim Report otherwise than in accordance with its obligations as set out above.

The AFL understands and respects ASADA's preference for the Interim Report to remain confidential and not be publicly disclosed. Where practicable, the AFL will use information already in its possession as the basis for its disciplinary proceedings or related matters. However, this may not always be possible. In the event that the AFL uses the Interim Report for any purpose in connection with its disciplinary proceedings it will notify ASADA of how it intends to do so.

Yours sincerely

Andrew Dillon General Counsel General Manager - Legal, Integrity and Compliance

94

From: Sent: To: Subject: Attachments:

Importance:

Dear Mr Dillon.

Rawson, Craig Wednesday, 21 August 20135:28 PM '[email protected]' ASADA Investigation: Essendon Football Club Ltr to A Dillion AFL 21-8-13.pdf

High

Please see urgent attached correspondence.

Senior Executive Lawyer Australian Government Solicitor T 03 92421248 F 03 92421317 M 0419 230 709 [email protected] Find out more about AGS at http://www.ags.gov.au


95

the leading 100~yers to government

Australian Government Solicitor Level 21, 200 Queen Street Melbourne VIC 3000

GPO Box 2853 Melbourne VIC 3001 T03 9242 1222 F 03 9242 1333 OX 50 Melbourne

www.ags.gov.au

21 August 2013

Mr Andrew Dillon General Manager - Legal and Business Affairs Australian Football League


Dear Mr Dillon


Further to our letter of 20 August 2013 we are instructed that the AFL has today informed the CEO of ASADA that it has provided to the AFL Players Association a copy of the ASADA Interim Report which was provided to the AFL on a confidential basis on 2 August 2013. Moreover a statement currently appearing on the AFL website states:

We have made available the charges and the ASADA report to the AFL Players' Association so that the documents can be reviewed by the players from the Essendon Football Club and their families.

ASADA believes that this is not consistent with the purpose identified in ASADA's letter of 2 August 2013 which provided the Interim Report to you.

Canberra 5ydney Melbourne Brisbane Perth Adelaide Hobart Darwin

We are now instructed to require the following undertakings from the AFL by 6.30pm tonight, failing which we are instructed to apply to court without further notice to you to apply for relief in the terms of the undertakings sought:

1) Without at least 48 hours notice to ASADA, the AFL will not further distribute ASADA's Interim Report (or any part of it) to any person in or outside the AFL.

2) Within 24 hours, the AFL will provide ASADA with a document that:

A2141006

a) lists all of the persons in and outside the AFL to whom the AFL has provided ASADA's Interim Report;

b) states the terms or basis on which it has been provided by the AFL to the person; and

c) attaches any covering correspondence by the AFL to the person about the use or confidentiality of ASADA's Interim Report; and

96

Australian Government Solicitor'

d) states whether the person has been provided with any of ASAOA's covering letters to the AFL dated 2, 7,8 and 12 August 2013 that sets out the basis upon which ASAOA stated that it provided ASAOA's Interim Report.

3) Within 24 hours, the AFL will ensure that all persons in and outside the AFL to whom it has provided ASAOA's Interim Report:

a} have been provided with a letter by the AFL that includes the information in Schedule A attached;

b) are advised in writing that ASAOA's Interim Report is confidential and must not been distributed or in any way made public by them or discussed with any person who does not have ASAOA's Interim Report without written permission from ASAOA.

4) Without at least 48 hours notice to ASAOA, the AFL will not disclose all or any of the information in ASAOA's Interim Report to any person.

5) Without at least 48 hours notice to ASADA, the AFL will not make any use ASAOA's Interim Report including:

c) in any hearing by the Commission of or in relation to the charges brought against Essendon Football Club, James Hird, Mark Thompson, Or Bruce Reid or Oanny Corcoran;

d) in any meeting of Club Presidents on Thursday 22 August 2013 or at any other date.

We look forward to your urgent response today.

Yours sincerely

( flAyAivrv-/ Craig Rawson Senior Executive Lawyer T 0392421248 F 03 92421317 M 0419 230 709 [email protected]


Page 2

97


This letter is being written to you by the AFL at the request of the Aw?tralian Sports Anti-Doping Authority

We have been asked to, and agree to, advise you of the basis on which provided the "Interim Investigation Report - Operation Cobia - Australian Football League (AFL)" When providing ASADA's Interim Report to the ASADA expressly stated the following:

"Basis on which is

Although ASADA's investigation of possible anti-doping rule violations is continuing, I am able to disclose information to the Australian Football League (AFL) under Article 4.7 of the AFL Anti-Doping Code and clause 4.21 of the National Anti-Doping (NAD) Scheme (Schedule 1 to the Australian Sports Anti-Doping Authority Regulation 2006).

Under Article 4.7 of the AFL Anti-Doping Code, ASADA has an obligation to report to the AFL on the exercise of its anti-doping functions, including its investigative functions.

The interim report contains information that is "NAD scheme personal information" within the meaning of the Australian Sports Anti-Doping Authority Act 2006, and that is therefore subject to section 71 of that Act.

This information will general also be information that does not arise out of any entry on the Register maintained under the NAD Scheme and relates to persons in connection with a possible anti-doping rule violation by athletes and support persons, and that is therefore covered by clause 4.21 of the NAD Scheme. Some of the information was collected by the AFL or has already been disclosed to the AFL.

To the extent that the interim report contains NAD Scheme personal information that the AFL did not collect and has not already been disclosed to the AFL, it cannot be disclosed to the AFL except for the purposes of the NAD scheme (section 71(1), (2)(b)). Disclosure of information under clause 4.21 of the NAD Scheme is disclosure for the NAD Scheme and falls within the exception of the prohibition on disclosure in section 71(2)(b).

ASADA Investigation: Essendon Football Club 21 August 2013 Page 3 A2141006

98

C \

Australian Government Solicitor ,.

The relevant information can be disclosed to the under clause 4.21 of the NAD Scheme for the purposes of, or in connection with, the administration of the NAD Scheme. The NAD Scheme would prevent the relevant information (the interim report) being made public.

am providing the with the interim report in with my investigation under the NAD Scheme, noting that the interim report is the culmination of our joint investigation to date and the starting point for further investigation.

Please provide me with your comments on the interim report. For example, I am particularly interested in receiving the AFL's views on the necessity for me to use my new powers to gain further information about specific substances provided to players and their contents.

In note that use and disclosure by the AFL of the information in the interim report is subject to the operation of the National Privacy Principles in the Privacy Act 1988. The Principles would preclude making the interim report public.

Having said that, the interim report has been redacted in a number of places. The following categories of information have been redacted from the interim report:

Material from other Australian Government agencies that ASADA is unable to lawfully provide to the AFL;

Internal ASADA communications that are not relevant to the investigation and all references in the footnotes to internal ASADA file references;

Text describing conduct that appears to be a possible antidoping rule violation not relevant to Essendon;

Material that is relevant to other ASADA investigations; and

Sensitive medical information."

ASADA's Interim Report is confidential and must not been distributed or in any way made public by you or discussed with any person who does not have ASADA's Interim Report without written permission from ASADA.

If you have any queries, please contact elen perdikogiannis from on [email protected].


Page 4

99

From: Sent: To:

Rawson, Craig Wednesday, 21 August 20136:49 PM '[email protected]'

Subject: RE: ASADA Investigation: Essendon Football Club

Dear Andrew.

On the basis of our conversation earlier we are instructed to extend the deadline for a substantive response to our letter until 11.00am tomorrow subject to receiving written confirmation from you that the AFL will not:

Further distribute the Interim Report (or any part of it) to any person in or outside the AFL prior to 11 am tomorrow or

" Make any use of the Interim Report at the meeting of club Presidents on 22 August 2013. I look forward to your response.

Yours sincerely

Craig Rawson 'nior Executive Lawyer

• ,ustralian Government Solicitor T 03 92421248 F 03 92421317 M 0419 230 709 [email protected] Find out more about AGS at http://www.ags.gov.au

Important: This message may contain confidential or legally privileged information. If you think it was sent to you by mistake, please delete all copies and advise the sender. For the purposes of the Spam Act 2003, this em ail is authorised by AGS.

From: Rawson, Craig Sent: Wednesday, August 21, 2013 5:28 PM To: '[email protected]' Subject: ASADA Investigation: Essendon Football Club Importance: High

Dear Mr Dillon.


Craig Rawson Senior Executive Lawyer Australian Government Solicitor T 0392421248 F 03 92421317 M 0419 230 709 [email protected] Find out more about AGS at http://www.ags.gov.au


100

From: Sent: To: Cc: Subject:

Craig

[email protected] Wednesday, 21 August 2013 6:57 PM Rawson, Craig [email protected]; [email protected]; [email protected] Re: ASADA Investigation: Essendon Football Club

Thanks for your note.

I can confirm that the AFL will not:

Further distribute the Interim Report (or any part of it) to any person in or outside the AFL prior to 11 am tomorrow or Make any use of the Interim Report at the meeting of club Presidents tomorrow.

Please call if any queries.

( Andrew \

On 21/08/2013, at 6:49 PM, "Rawson, Craig" <[email protected]> wrote:

Dear Andrew.


101

From: Sent: To:

[email protected] Thursday, 22 August 2013 1 i :29 AM Rawson, Craig

Subject: Re: ASADA Investigation: Essendon Football Club

Thanks Craig

On 22/08/2013, at 11:22 AM, "Rawson, Craig" <[email protected]> wrote:

Dear Andrew.

I now have instructions that ASADA agrees to extend the position agreed between us last night until 3pm today on the same agreed basis, on the understanding that we will receive your response to our letter of yesterday before then.

Yours sincerely,

':;')TOYOTA ~HV(~ tU1.tl

AndrewDillon General Counsel General Manager - Legal, Integrity and Compliance AFL HOUSE 1140 Harbour Esplanade I Docklands VIC 3008 GPO Box 14491 Melbourne VIC 3001 Ph: (03) 96431941 I Fax: (03) 96431871 Please consider the environment before printing this email

Craig Rawson Senior Executive Lawyer Australian Government Solicitor T 03 92421248 F 03 92421317 M 0419230709 [email protected] Find out more about AGS at http://www.ags.gov.au


From: Rawson, Craig Sent: Wednesday, August 21, 2013 6:49 PfvJ To: '[email protected]' Subject: RE: ASADA Investigation: Essendon Football Club

Dear Andrew.


'" Further distribute the Interim Report (or any part of it) to any person in or outside the .LI.FL prior to 11 am tomorrow or

Make any use of the Interim Report at the meeting of club Presidents on 22 August 2013.

I look forward to your response.

102

Yours sincerely

Senior Executive Lawyer Australian Government Solicitor T 03 92421248 F 03 92421317 M 0419230709 [email protected] Find out more about AGS at http://www.ags.gov.au

This message may contain confidential or legally privileged information. If you think it was sent to you by mistake, please delete all copies and advise the sender. For the purposes of the Spam Act 2003, this em ail is authorised by AGS.

From: Rawson, Craig Sent: Wednesday, August 21, 2013 5:28 PM To: '[email protected]' SUbj€:ct: ASADA Investigation: Essendon Football Club

nnIIT=>"'r,:>· High

Dear Mr Dillon.


Craig Rawson Senior Executive Lawyer Australian Government Solicitor T 03 92421248 F 03 92421317 M 0419 230 709 [email protected] Find out more about AGS at http://www.ags.gov.au

Important: This message may contain confidential or legally privileged information. If you think it was sent to you by mistake, please delete all copies and advise the sender. For the purposes of the Spam .Act 2003, this email is authorised by AGS.


Report this message as spam

2

103

From: Sent: To: Subject: Attachments:

Dear Mr Dillon.

Rawson, Craig Monday, 26 August 2013 9:07 AM '[email protected]' ASADA Interim Report Letter to AFL 26-8-2013.pdf


Yours sincerely,

Senior Executive Lawyer Australian Government Solicitor T 0392421248 F 03 92421317 M 0419 230 709 [email protected]

Id out more about AGS at http://www.ags.gov.au


104

the leading lawyers to government

Our ref. 13133506

26 August 2013

Andrew Oillor.

General Counsel - Legal and Business Affairs Australian Football League Ltd

E: [email protected]

Dear Sir

Australian Government Solicitor Leve! 21.200 Queen Street Melbourne VIC 3000

GPO Box 2853 A1efbDurne vIe 300i T 039242 :222 F 03 92421333 OX 50 Melbourne

V'fl'l'/twgs.gmwu

Canberra Sydney Melbourne Brisbane Perth Ade/(jide Hobart Darwin

James Hird v Australian Football League Ud - Supreme Court of Victoria

1. We act for the Australian Sports Anti-Doping Authority (ASADA). As you know, ASADA has prepared a document entitled "Interim investigation ReportsOperation Cobia - Australian Football League (AFL)" (ASADA's Interim Report) which it has disclosed to the Australian Football League (AFL) under clause 4.21 of the National Anti-Doping (NAO) scheme in Schedule 1 to the Australian Sports AntiDoping Authority Regulations 2006 (Cth).

2. Our client regards ASADA's Interim Report as highly confidential and notes that the information in it must be protected strictly in accordance with the Australian Sports Anti-Doping Authority Act 2006 (Cth), the Australian Spolts Anti-Doping Authority Regulations 2006 (Cth) and the Privacy Act 1988 (Cth). In particular, ASADA's Interim Report contains information relating to an ongoing confidential investigation by ASADA and also contains extensive "personal information" as defined in section 6 of the Privacy Act 1988 and section 4 of the Australian Sports Anti-Doping Authority Act 2006. It also contains "sensitive information" within the meaning of section 6 of the Privacy Act 1988.

3. We have also perused the writ and statement of claim in the James Hird v Australian Football League Ltd (Supreme Court of Victoria, proceeding SCI 201304370) and note the allegation in paragraph 21(f) by Mr Hird that the AFL "provided copies of [ASADA's Interim Report] (or information in it) to: ... (f) unknown members of the press including Fairfax Media."

4. Our client regards this allegation by Mr Hird as extremely serious which, if true, would be a serious breach of the legislative instruments referred to in paragraph 2 above.

A2144859 - VI ,0

105


5. In these circumstances, we are obliged to request that you advise us in writing your instructions on the allegation in paragraph 21(f) of Mr Hird's statement of claim. Please provide a response by 10am on Tuesday 27 2013.

Yours sincerely

(&!Jf/iW(/ /

Craig/Rawson Senior Executive Lawyer T 03 92421248 F 0392421317 M 0419 230709 [email protected]

James Hird v Australian Football League Ltd - Supreme Court of Victoria proceeding SCI 2013 04370 26 August 2013 A2144859 - v1.0

Page 2

106

From: Sent: To: Cc:

Dear Mr Rawson

[email protected] Monday, 26 August 2013 7:10PM Rawson, Craig [email protected]; [email protected]; [email protected] RE: ASADA Interim Report

I refer to your letter of 26 August 2013.

The AFL has throughout the joint investigation with ASADA taken considerable care to preserve confidentiality in relation to the investigation and has taken particular care over the dissemination of the Interim Report and its contents.

The AFL considers the (unparticularised) allegations in the statement of claim to be completely baseless. The allegations are denied. The entire statement of claim is currently the subject of careful consideration by the AFL's legal advisers and may be the subject of challenge at an early stage of the litigation.

rlease contact me if you have any queries.

Regards Andrew

ADrntAliA"S ::~TOYOTA

Andrew Dillon General Counsel General Manager - Legal, Integrity and Compliance AFL HOUSE 1140 Harbour Esplanade I Docklands vie 3008 GPO Box 14491 Melbourne vie 3001 Ph: (03) 9643 19411 Fax: (03) 96431871 Please consider the environment before printing this em ail

From: Rawsonl Craig [mailto:[email protected]] Sent: MondaYI 26 August 2013 9:07 AM To: Andrew Dillon Subject: ASADA Interim Report

Dear Mr Dillon.


Yours sincerely,

Senior Executive Lawyer Australian Government Solicitor T 039242 1248 F 03 9242 1317 M 0419230 709 cra [email protected] Find out more about AGS at http://www.ags.gov.au

107

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DIVISION: GENERAL

ESSEN DON FOOTBALL CLUB ACN 004286373

Applicant

CHIEF AUSTRALIAN SPORTS ANTI-DOPING

Respondent

JAMES ALBERT HIRD

Applicant


Respondent

328 2014


................ ,--~.-rr.

Signature

Qualification





A3750872

File ref: 14097050



OX 50 Melbourne

109

UAgreed Protocol between AFL aud ASADA Regarding ASADA 's I11terim Report'

L Without at least 24 hoUl's written notice to AGS [email protected]) and ASADA (Elen Elen.Perdikogialli'[email protected]), the AFL will not:

(Craig Rawson at Perdikogiannis at

a. further distribute or provide access to ASADNs Interim Repolt (or any part of it) to any person in or outside the AFL;

b. discuss the content of ASADNs Interim Report (or any part of it) with any person to ,,,vhom ASADNs Interim Report has not already been provided or has n01 already signed the "Confidentiality & Non-disclosure undertaking - EFC investigation" in relation to the Data Room (as ddined in that undertaking); or

c. rely 011 ASADA's Interim Report (or any part of it) ill any hearing before the Commission of the AFL or any COUlt of law.

For the avoidauce of doubt, the AFL is not prevented .6:om using, distributing, discussing or relying on any information contained in ASADA's Interim Report (or any part of it) where such infollnation was independently obtained by the AFL and was not obtained by the AFL solely as a result of the information being provided by ASADA to the A..FL ill the COl.ll'se of a joint investigation.

Furthermore the AFL is not prevented fi:om using, distributing, discussing or reJying on any information contained in ASADA's Interim RepOlt (or any prut of it) that is othelwise in the AFL's possession from being in. the public domain except where that information was made public by a breach of a confidentiality & non-disclosure 1.U1dertaldng.

2. Within 24 hours, the AFL will provide AGS [email protected]) and ASADA (Eten [email protected]) with a document that:

(Craig Rawson Perdikogiannis

at at

a. lists all of the persons in and outside the AFL to whom the AFL has distributed or given access to ASADA's Interim Report;

b. provides an email address for all such persons;

C. states the tenns or basis on which it has been distributed or given access by the AFL to the person including whether the person has already signed the "Confidentiality & Non-disclosure undertaking - EFC investigation" in relation to the Data Room (as defined in that undertaklng);

d. attaches any covering correspondence by the AFL to 'the person about the use or confidentiality of ASADA's Interim Report; and

110

e. states whether the person has been provided with any of ASADA's cover.ing letters to the AFL dated 2, 7, 8 and 12 August 2013.

3. The AFL has no objection to ASADA contacting the persons the subject of paragraph 2(a) above to explain the basis upon which ASADA has provided ASADA's Interim Report to the AFL, the tenns of such communication to be agreed beforehand by the AFL and ASADA.

ASADA

Date: 2 0; ~~ .).0 \ 3 Date:

111

20140622 CDOC Affidavit of Aurora Andruska

Documents

annexure aa

details of filing document

document number

date of filing

melbourne details meeting

details of filing follow

affidavit form

electronic filing