Australian Sports Anti-Doping Authority v Muhlhan [2009] FCA 21 (21 January 2009)

Last Updated: 21 January 2009

FEDERAL COURT OF AUSTRALIA

Australian Sports Anti-Doping Authority v Muhlhan [2009] FCA 21

AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY v ANDREW MUHLHAN
VID 479 of 2008

JESSUP J
21 JANUARY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 479 of 2008

BETWEEN:

AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY Applicant

AND:	ANDREW MUHLHAN Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	21 JANUARY 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal made on 30 May 2008 be set aside.

3. In place of that decision it be ordered that the respondent’s application for review be dismissed.

4. The respondent pay the applicant’s costs of the proceeding.

5. The respondent have leave to file and serve, within 14 days, a written submission seeking the revocation or variation of the previous order; if he does so, the applicant have leave, within 14 days thereafter, to file and serve a response to that submission; and if it does so, the respondent have leave to file and serve, within 7 days thereafter, a reply to that response.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 479 of 2008

BETWEEN:

AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY Applicant

AND:	ANDREW MUHLHAN Respondent

JUDGE:	JESSUP J
DATE:	21 JANUARY 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an appeal on a question of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal made on 30 May 2008, in which the Tribunal set aside the decision of the applicant, Australian Sports Anti-Doping Authority, to enter the name of the respondent, Andrew Muhlhan, and certain particulars about him, on the register maintained by the applicant pursuant to cl 78 of Sch 1 to the Australian Sports Anti-Doping Authority Regulations 2006 (Cth).

2 The Australian Sports Anti-Doping Authority Act 2006 (Cth) ("the Act") is concerned with the municipal implementation of certain international conventions on the problem of doping in sport. It does this by requiring Regulations made thereunder to prescribe a scheme about such matters. Section 13(1) of the Act sets out the matters for which the scheme must provide, which it must contain and with which it must deal in various ways. The scheme must provide that one or more specified classes of athletes and support persons are subject to the scheme; must contain anti-doping rules applicable to those athletes and support persons; must authorise the applicant to request an athlete to provide a sample; must authorise the applicant to test, or to arrange the testing of, samples so provided; must authorise the applicant to investigate possible violations of the anti-doping rules; must authorise the applicant to make findings relating to such investigations; and must require the applicant to establish and maintain a register of such findings.

3 The Regulations do prescribe a scheme, referred to as the "NAD scheme". By cl 21(1) of Schedule 1 to the Regulations, the applicant is authorised to ask an athlete to give it a sample to detect, or to assist in determining, whether the athlete has used a drug or doping method. The Regulations contain detailed provisions for the testing of samples so provided. There are Part A and Part B samples, and in each case, if a test results in what is described as "an adverse analytical finding" (ie what is popularly known as a "positive result"), the athlete concerned is entitled to make a submission to the applicant. Having considered such submission or submissions, the applicant must make a decision whether or not to enter a finding on the register for which cl 78 of the schedule provides. If the applicant decides to enter a finding on the register, it must make the entry immediately.

4 The respondent is an athlete to whom the Regulations, and the NAD scheme, apply. On 9 December 2006, he competed in track events at an athletics carnival at Shepherds Flat in Victoria. After having done so, he was requested to provide, and he did provide, a urine sample for testing. It was the taking of that sample that set in train a course of events which led to the decision by the applicant to enter the respondent’s name on the register. Although there were several grounds upon which the respondent relied in his application to review the action of the applicant, there was only one respect in which the Tribunal held that the applicant ought not to have entered his name on the register. The Tribunal held that, before requesting the respondent to provide a sample, the applicant had not complied with cl 4.6.2 of the International Standard for Testing ("the Standard") made by the World Anti-Doping Agency under the World Anti-Doping Code ("the Code").

5 The Code describes itself as follows:

The Code is the fundamental and universal document upon which the World Anti-Doping Program in sport is based. The purpose of the Code is to advance the anti-doping effort through universal harmonization of core anti-doping elements. It is intended to be specific enough to achieve complete harmonization on issues where uniformity is required, yet general enough in other areas to permit flexibility on how agreed upon anti-doping principles are implemented.

The purposes of the Code are:

To protect the Athletes’ fundamental right to participate in doping-free sport and thus promote health, fairness and equality for Athletes worldwide; and To ensure harmonized, coordinated and effective anti-doping programs at the international and national level with regard to detection, deterrence and prevention of doping.

The Code describes the Standard as follows:

International Standards for different technical and operational areas within the anti-doping program will be developed in consultation with the Signatories and governments and approved by WADA. The purpose of the International Standards is harmonization among Anti-Doping Organizations responsible for specific technical and operational parts of the anti-doping programs. Adherence to the International Standards is mandatory for compliance with the Code. The International Standards may be revised from time to time by the WADA Executive Committee after reasonable consultation with the Signatories and governments. Unless provided otherwise in the Code, International Standards and all revisions shall become effective on the date specified in the International Standard or revision.

6 The Standard describes its main purpose as "to plan for effective testing and to maintain the integrity and identity of the samples, from notifying the athlete to transporting samples for analysis." The Standard is divided into six sections, namely, planning, notification of athletes, preparing for the sample collection session, conducting the sample collection session, security post test administration, and transport of samples and documentation.

7 The present case is concerned with an aspect of the "planning" section of the Standard. The objective of the section is "to plan and implement an effective distribution of athlete tests". The Standard states:

Planning starts with establishing criteria for Athletes to be included in a Registered Testing Pool and ends with selecting Athletes for Sample collection. The main activities are information gathering, risk evaluation, and developing, monitoring, evaluating and modifying the test distribution plan.

The section is then divided up as follows:

• Requirements for establishing the registered testing pool

• Requirements for collecting athlete whereabouts information for the purposes of out of competition testing

• Requirements for test distribution planning

• Requirements for selection of athletes

It is with the final item on this list that the present case is concerned.

8 Sub-section 4.6 of the Standard reads as follows:

4.6.1 In accordance with the number of Sample collections allocated to each sport/discipline in the test distribution plan, the ADO shall select Athletes for Sample collection using Target Testing, Weighted and random selection methods. 4.6.2 As a minimum, the ADO shall consider Target Testing Athletes based on the following information:

a) Injury;

b) Withdrawal or absence from expected Competition;

c) Going into or coming out of retirement;

d) Behaviour indicating doping;

e) Sudden major improvements in performance;

f) Changes in Athlete whereabouts information that can indicate a potential increase in the risk of doping, including moving to a remote location;

g) Athlete sport performance history;

h) Details of past Doping Controls;

i) Athlete reinstatement after a period of Ineligibility; and

j) Reliable information from a third party.

4.6.3 An ADO may select Athletes under their authority for Sample collection who are not included in the Registered Testing Pool defined in 4.3.1 and 4.3.2. 4.6.4 Where the ADO authorises a Doping Control Officer (DCO) to select Athletes for Sample collection, the ADO shall provide selection criteria to the DCO in accordance with the test distribution plan. 4.6.5 Following the selection of an Athlete for Sample collection and prior to notification of the Athlete, the ADO and/or DCO shall ensure Athlete selection decisions are disclosed only to those who need to know in order to ensure the Athlete can be notified and tested on a No Advance Notice basis.

In these provisions (and elsewhere in the Standard), "ADO" means "Anti-Doping Organisation". The applicant is an ADO. The Standard defines the expression "target testing" as follows:

Selection of Athletes for Testing where specific Athletes or groups of Athletes are selected on a non-random basis for Testing at a specified time.

The Standard does not define the term "random selection methods" or the term "non-random basis".

9 In the facts leading to the present case, the respondent was selected specifically for testing. It was common ground that the testing was "target testing" within the meaning of the Standard. However, the basis upon which he was so selected does not, at least expressly, appear in the evidence which was before the Tribunal. The Tribunal found as a fact that, in selecting the respondent for testing, the applicant had not considered any of the items listed as (a)-(j) in cl 4.6.2 of the Standard. In the view which the Tribunal took, that omission invalidated the testing.

10 In taking this view, the Tribunal said:

The International Standard which is to be complied with when requesting a sample permits testing to be either from random selection or be targeted to an individual athlete. Clause 4.6.2 of the International Standard sets out the minimum requirements which would lead to an athlete being target tested.

The Tribunal then dealt with a submission made on behalf of the applicant that "behaviour indicating doping" had been relevant to its selection of the respondent for testing, and rejected it. The applicant then submitted to the Tribunal that whether particular testing was random or targeted was beside the point, since, in either case, the athlete in question was not previously notified. The applicant submitted that in all other respects the Standard had been complied with and, therefore, that there had been "substantial compliance" with the Standard. The Tribunal’s response to that submission was as follows:

The Tribunal is unable to accept the [applicant’s] submission on this point. The point has nothing to do with "substantial compliance". The International Standard establishes minimum considerations which anti-doping testing authorities must address before a targeted test is undertaken. It is a prerequisite that that consideration be given. Otherwise testing must be way of random selection. There is no sufficient evidence to support that the [applicant] gave any consideration to the minimum requirements required for a targeted testing of the [respondent] to be undertaken.

Dealing later with a submission on behalf of the applicant which relied upon the provisions of the Code, the Tribunal made it clear that it regarded the provisions of cl 4.6.2 as "the prerequisites...provided as being the minimum requirements" in the Standard. In concluding its decision, the Tribunal said that it was not satisfied "that the minimum prerequisites required in the International Standard Item 4.6.2 for undertaking a targeted test were complied with as required under International Standard." For that reason, it set aside the decision originally made by the applicant.

11 In holding that the Standard was required to be complied with by the applicant when requesting a sample, the Tribunal referred to cl 20 of Sch 1 to the Regulations. That clause is headed "Code procedures to be followed", and provides as follows:

A request for a sample made under this Division must comply, or substantially comply, with the procedures for the making of a request for a sample mentioned in the International Standard for Testing published by the World Anti-Doping Agency, and available on the following website: http://www.wada-ama.org.

Counsel for the applicant informed me that, in the view taken by their client, there is a question whether cl 20 applies to more than the making of a request as such. On that view, the clause would not apply to the process of selecting athletes for the purposes of making a request. If so, neither would the Standard. However, counsel also informed me that their client had decided not to make a submission along those lines, and to prosecute the present appeal by reference to an assumption that cl 20 required compliance with the Standard in the matter of the selection of athletes for testing.

12 As noted above, the Tribunal construed cl 4.6.2 of the Standard as prescribing "the minimum requirements which would lead to an athlete being target tested" or as prescribing "minimum considerations which anti-doping testing authorities must address before a targeted test is undertaken". According to the Tribunal, that there should be such consideration was a "prerequisite" for the undertaking of a test. Counsel for the respondent supported that construction. He submitted that the expression "as a minimum" conveyed the sense, that in every case, the Tribunal was required to consider the categories on the list, and to satisfy itself that testing was required in the particular case by reference to at least one of those categories. He did later submit that it was open to the applicant in effect to add its own categories to the list, but I did not understand him to submit that this would excuse the applicant from having reference to the list in cl 4.6.2 itself in any particular case.

13 I do not accept these submissions made on behalf of the respondent. Both the Code and the Standard are the work of the World Anti-Doping Agency, and, at least relevantly to the present appeal, are concerned to prescribe requirements to be followed by anti-doping organisations around the world. In many respects, the Standard states what shall be the minimum requirements of selection, sampling and testing procedures by those organisations. For instance, cl 4.3.1 requires an organisation to "define and document the criteria for athletes to be included in a registered testing pool". There are two criteria which must be included "as a minimum". Clause 4.4.1 requires an organisation to "define procedures and/or systems" for collecting, maintaining and monitoring information as to the whereabouts of athletes. Clause 4.4.2 identifies certain specific information which must be collected "as a minimum". Clause 4.5.1 requires an organisation, "as a minimum", to "evaluate the potential risk of doping and possible doping pattern for each sport and/or discipline" based on generically-stated criteria. Clause 4.5.2 requires an organisation to "develop and document a test distribution plan" based on the information determined under cl 4.5.1. These, and many similar provisions of the Standard, show that the kind of obligations which are imposed on anti-doping organisations relate to the establishment and characteristics of methods, systems and the like in particular places around the world. There is no suggestion that the precise format or content of the testing regimes established pursuant to the Standard will be identical in all places. Recognising this, the Standard specifies, in a number of respects, the minimum steps that must be taken.

14 In my view, this is the way that cl 4.6.2 should be interpreted. Clause 4.6.1 requires only that athletes be selected using target testing, weighted and random selection methods. Clause 4.6.2 is concerned with target testing specifically. It directs the Anti-Doping Organisation to consider conducting target tests by reference to the "information" identified in pars (a)-(j). In my view, where the provision uses the expression "as a minimum" it is referring to the matters which, at least, should be included in a particular target testing regime as justifying tests.

15 I do not read cl 4.6.2 of the Standard as in any way limiting the discretion of an anti-doping organisation to conduct target testing only in the circumstances there referred to. Indeed, I read the expression "as a minimum" as conveying the opposite. Further, I take the view that the injunction "shall consider" is addressed to the Anti-Doping Organisation in its development and administration of a regime of testing in its own area or jurisdiction. That is to say, the organisation must consider non-random testing of athletes who have suffered an injury, who have withdrawn from an expected competition, who have come out of retirement, and the like. There is nothing in this provision which would prevent an organisation from administering non-random tests in other circumstances.

16 It follows that, by omitting to consider each of the items in cl 4.6.2 of the Standard before requesting the respondent for a sample, the applicant did not fail to comply with the Standard, either for the purposes of cl 20 of Sch 1 to the Regulations or for any other purpose. The Tribunal was in error to have found otherwise, and its error was one of law.

17 It was common ground that, if I should decide the case the way I have, there was no other basis upon which the setting aside of the applicant’s decision to enter the respondent’s name, and certain particulars, on the register could be justified. In those circumstances, the appropriate order to make is that the respondent’s application for review be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated: 21 January 2009

Counsel for the Applicant:	Mr J E Marshall SC and Ms K Stynes
Solicitor for the Applicant:	Browne & Co
Counsel for the Respondent:	Mr M Purvis
Solicitor for the Respondent:	Gross & Becroft Lawyers

Date of Hearing:	10 December 2008
Date of Judgment:	21 January 2009