John Madigan (Victoria, Independent) Share this | Link to this | Hansard source

Yesterday afternoon, I moved a motion for a Senate committee inquiry into Australia's participation in the international sports antidoping framework. My goal was to have this issue—and the numerous and pressing questions that still hang over it—reviewed within an employment framework. The antidoping framework is based on the needs of amateur sport. It began its life in the Olympic movement. A significant number of professional sportspeople, however, are employees.

A recent case proves the point. I refer to the double conviction of the Essendon Football Club and the resulting $200,000 fine in the Melbourne Magistrates' Court. This followed charges brought by WorkSafe Victoria that the club had failed to provide a safe system of work for its employees. The employees were 34 footballers who played for the club under a controversial 'supplements' program during the 2012 AFL season. Clearly, the involvement of WorkSafe Victoria is proof that those players were in fact employees and subject to the direction of, in this case, a culpable employer.

My push for a Senate inquiry into this issue was co-sponsored by all seven of my crossbench colleagues—Senators Leyonhjelm, Lambie, Muir, Wang, Lazarus, Day and Xenophon. It was also supported by the Greens. But the motion was blocked by the government and the ALP, and the question that must be asked is: why? That is a question only the government and the opposition can answer. Clearly, both major parties are in the grip of the mindset that professional sport is exempt from the conventional application of Australian workplace law.

This is something that the WorkSafe Victoria case clarified, quite obviously. When you work for a real boss, in a real job, in private enterprise, your relationship with your employer is one by employment. It is a business relationship. You are party to a contract, either written or unwritten. In entering into such a relationship, under which you undertake to do work in return for wages or salaries, your employer is entitled to give you lawful direction and you are obliged to comply with the lawful directives of your employer or potentially stand accused of workplace insubordination—that is, breaking your employment contract.

In the case of the Bombers, the club as employer created a program for its players as employees. Being employees, they were expected to participate under their contracts of employment. The footballers as loyal employees had to comply with their employer's wishes. The program instigated by their employer included injections. This now apparently ill-considered decision by club management ultimately saw the employer—the club—having to plead guilty to two charges of breaching the Victorian Occupational Health and Safety Act by risking its players' health and failing to provide a safe work environment. Indeed, Magistrate Peter Reardon reportedly said the safety breaches involved the invasion of the players' bodies via injections. He said:

These are serious breaches from a professional sporting club that could have been avoided if the club had acted openly, honestly and professionally …

In a subsequent statement, WorkSafe Victoria said the prosecution and conviction of the Essendon Football Club should serve as a warning to professional sports organisations that they must protect the health and safety of their players, many of whom are young and vulnerable workers.

How, then, did we get into a situation where ASADA was drawn into a workplace disciplinary investigation? ASADA's involvement has ultimately shifted the public's perception of culpability for a management action from management onto the club's frontline workforce—its footballers. Indeed, how did we get into a situation where ASADA managed to do this by means of what many in the legal profession have dubbed a double-jeopardy prosecution? Even then, it was a double-jeopardy prosecution enabled by an inappropriately low standard of proof. I use the phrase 'double-jeopardy prosecution' with the utmost gravity, because all 34 players had initially been cleared of wrongdoing by two retired Victorian County Court judges and an eminent Melbourne barrister. Sitting as the AFL Anti-Doping Tribunal, they cleared the team of any wrongdoing on the basis of a lack of hard evidence.

Under the National Anti-Doping Framework, ASADA CEO Mr Ben McDevitt could have appealed the decision to the AFL anti-doping appeals tribunal, but he did not. Such an appeal would most certainly have been in keeping with ASADA's statutory obligation to act as a model litigant. It would also have certainly demonstrated a willingness on ASADA's part to avoid, prevent and limit the scope of legal proceedings wherever possible. But what we got instead on the part of Mr McDevitt was a vote of no confidence in the very framework that he is responsible for administering. What we got instead was a decision to put the Essendon matter before the grandly-named Court of Arbitration for Sport, or CAS, to secure a result at any cost. The end justified the means, apparently. We unnecessarily contracted out the fates and futures of 34 leading, young Australian sportsmen to a foreign tribunal instead of a competent Australian one.

Evidence given to Senate estimates last June showed that the cost to the Commonwealth of these actions was $100,000. This has resulted in the players having to appeal the CAS decision in the Swiss legal system, in French and German, rather than in any Australian court. How does that fit with ASADA's obligation to behave as a model litigant? How did we get to this point? The answer to this question is can be found in the Howard government's 2004 election policy Building Australian Communities through Sport.

We should remember that 2004 was also the election at which the coalition was returned to introduce its notorious Work Choices legislation. The Tough on Drugs in Sport policy, in effect, was and remains the Work Choices of sport. This was the policy that gave rise to the formation of ASADA in 2006. In doing so, this policy tore down the former ASDA, which was established in 1990 by the Hawke government with express consideration for every athlete's rights, specifically, to privacy and natural justice. This was the policy that committed Australia to membership of WADA. It was under this policy that the AFL was forced to sign onto the WADA code under threat of losing federal government funding for essential purposes such as stadium improvements.

It was because of this policy that former Essendon coach James Hird took matters to the Federal Court. Clearly this saga should have remained within the scope of a football tribunal or Fair Work Australia. Either way, there is clearly a lack of fundamental checks and balances on ASADA. It was under this Howard-era policy that ASADA harassed Olympic swimmer Ian Thorpe for 10 months, even though its own scientists were unable to find any proof of hormone doping on his part. It was because of this policy that the Howard government bound Australia by treaty obligation to the UNESCO International Convention against Doping in Sport instead of looking to Australian courts and tribunals.

The policy provided for the global harmonisation of anti-doping policies and practices and, with this, the loss of Australian legal authority to foreign non-government entities. This imperative for harmonisation has been a Trojan Horse. It has impacted on the conventional understanding of Australian workplace justice. It all started with a Howard government policy. Left unchecked, it resulted in Gillard government ministers Kate Lundy and Jason Clare presiding over the blackest day in sport. It is no wonder that both major parties blocked our motion for a Senate inquiry. Is it any wonder that they want this embarrassing mess swept under the carpet? Here is my response: I am only just beginning. If the majority of senators chose to ignore this sort of grave injustice, they are complicit in something that one day may also affect one or more of their constituents, if not themselves, their friends or even one of their loved ones.

Senate adjourned at 19 : 28