- Parliamentary Business
- Senators and Members
- News & Events
- About Parliament
- Visit Parliament
Community Affairs Legislation Committee
Australian Sports Anti-Doping Authority
- Committee Name
Community Affairs Legislation Committee
Madigan, Sen John
Back, Sen Chris
Di Natale, Sen Richard
Peris, Sen Nova
- Sub program
- System Id
Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Table Of ContentsDownload PDF Watch ParlView Video
Content WindowCommunity Affairs Legislation Committee
Australian Sports Anti-Doping Authority
Australian Sports Anti-Doping Authority
CHAIR: I am going to start with Senator Madigan and then go to Senator Back.
Senator MADIGAN: Mr McDevitt, my questions pertain to the AFL Anti-Doping Tribunal and the 34 Essendon footballers. Is it correct that the AFL Anti-Doping Tribunal cleared the 34 Essendon footballers of an alleged violation of the AFL doping code?
Mr McDevitt : Yes, Senator, that is correct.
Senator MADIGAN: Was the AFL Anti-Doping Tribunal chaired by two retired Victorian County Court judges and an eminent barrister?
Mr McDevitt : That is correct, Senator.
Senator MADIGAN: Mr McDevitt, did ASADA believe there was something fundamentally wrong with that decision of those two retired Victorian County Court judges and eminent barrister, who actually convicted and sent people to jail in their professions previously?
Mr McDevitt : Senator, I might make some opening comments. The first one is to say that at no time have I questioned the integrity of the individuals who sit on the AFL Anti-Doping Tribunal. These are people with great integrity and great experience. As you yourself pointed out, their experience basically emanates from the criminal jurisdiction, which is a jurisdiction that looks at issues generally through the lens of beyond a reasonable doubt. I believe and WADA believed that in this case the AFL Anti-Doping Tribunal simply got it wrong, and I believe that for several reasons.
Firstly, I do not believe that due weighting was given to pieces of evidence that were presented to that tribunal. Secondly, I believe that they held the bar of 'comfortable satisfaction' so high that, if allowed to remain, it would have set a precedent which would have made it extremely difficult if not impossible, not only for ASADA, but for any anti-doping organisation in the world to successfully prosecute a matter which did not, as in this case, involve a positive test.
Senator, let me just give you a couple of examples. As you know, I fully supported the WADA appeal and I supported it in kind and financially. The decision to appeal was totally WADA's. Do not overestimate my influence on WADA. They actually undertook their own reviews and made their own decisions to appeal. Let me just give you a couple of examples.
The tribunal itself accepted that Steven Dank made plans to use thymosin beta-4 as part of Essendon's injection program. They also accepted that the players had consented to being injected with thymosin and that injections had occurred. Despite this, they were not comfortably concerned or satisfied that the injections actually contained thymosin beta-4 because there were no adequate records kept and because Essendon failed to carry out lab analysis of the substances. Then you look at a couple of these issues. The CAS panel openly disagreed with the tribunal on several things. Let us talk about the records.
Senator MADIGAN: Just for clarity, Mr McDevitt, CAS is not an Australian body, is it? Just so everybody can be crystal clear.
Mr McDevitt : CAS is the ultimate sports—
Senator MADIGAN: It is not an Australian court, Mr McDevitt, is it? It is not Australian law.
Mr McDevitt : It has an office—
Senator MADIGAN: It is not Australian law, is it, Mr McDevitt? It is not subject to review by the Australian parliament or by Australian politicians, which most Australians expect and, more importantly, deserve, Mr McDevitt, is it? It is not an Australian court. It is a foreign body. It is not an Australian court.
Mr McDevitt : I disagree with you, Senator.
Senator MADIGAN: Let us be crystal clear, Mr McDevitt.
Mr McDevitt : Senator, we have a legislative framework.
Senator MADIGAN: It is not an Australian court, is it, Mr McDevitt? Is not to Australian law.
CHAIR: Senator Madigan, you have put that a number of times.
Senator MADIGAN: Well, he will not answer the question.
CHAIR: Senator Madigan, just one moment. I am giving you a fair go. You have put that several times. Mr McDevitt can come back and answer, and if you are not satisfied with the answer you can ask him further questions, but I will not have you badgering him. I will go to Mr McDevitt.
Mr McDevitt : Senator, can I finish the original question which was about the fact that the decision was so fundamentally flawed. I was talking about the lack of records and the Court of Arbitration for Sport said:
No record was kept within Essendon; indeed, the absence of such record was the subject of forceful criticism by the AFL Tribunal and relied upon by it as a reason to find ASADA's case to be insufficiently substantiated.
CAS, in looking at the lack of records actually said:
However, the very fact that no record was kept is in the Panel's view suggestive again of a desire to shroud the regime in a veil of secrecy.
Secondly, talking about the source of the substance itself, again the CAS panel found in their view that the AFL tribunal had got it wrong and said:
It is not an essential link (or indeed strand) in a case of a violation of Article 2.2 of the WADC that the source of the product used can be identified. It has never been so stated in any of the relevant case law, is not required on the face of the article itself or the commentary, and would be a significant bar to the fight against doping.
Senator, that is why I forgo my opportunity to appeal within the AFL framework. I was extremely confident that WADA would appeal this finding because it was simply untenable.
Senator MADIGAN: You earlier said in your evidence, Mr McDevitt, that WADA appealed, WADA did not appeal. You were not happy with the decision, you have said that the decision was flawed, why did ASADA not avail itself of the appeal process afforded to it under the AFL Anti-Doping Tribunal, which is an Australian body, not a foreign body?
Mr McDevitt : There were a couple of reasons for that. You may recall that, on the day after the tribunal released its decision, I did a press conference, and one of the very first things I said was, 'An appeal option is a very, very live option.' The appeal option had two possible routes for me. One was to appeal to the AFL antidoping appeals tribunal, which would mean that the matters would remain under the umbrella of the AFL's framework, and the second option, which was the one I took, was to forgo my appeal option, refer the matters to WADA and allow them then, if they saw fit, to initiate an appeal to CAS. I did not have a direct opportunity to appeal to CAS.
Quite frankly, this matter was going to end up in CAS anyway. It would have cost the Australian taxpayer approximately a million dollars for me to have fully run an appeal, because the appeals tribunal would have wanted a full de novo hearing, which would have meant that we would have run the whole case again before that appeals tribunal. I can almost guarantee you that, if the result of that appeals tribunal had been the players being found guilty, they would have almost certainly themselves exercised their appeal option, which was open to them, to then go to the CAS. I can tell you also that, if the appeals tribunal had found in favour of the players and applied and accepted the same logic of the lower tribunal in the original decision, then, for the exact same reasons I have just outlined to you, I would have then initiated my right of appeal to CAS. I believe we saved almost a million dollars and we also saved almost 12 months in this process by opting for the option which I did, and that is why I decided not to appeal within the AFL framework.
Senator MADIGAN: Mr McDevitt, given that the Commonwealth through ASADA contributed more than $100,000—I think it is—towards the cost of a WADA case against Essendon, and you are saying in your evidence there that it would have cost somewhere in the vicinity of a million dollars, you are saying there is a price on justice for people—for these 34 individuals, their wives or partners and their children. Is that what you are putting to us?
Mr McDevitt : No, I am not, Senator.
Senator MADIGAN: You have just said we could have spent a million dollars, or we could have spent $100,000. The money is the consideration, not justice for people. We put a price on justice. Is that right?
Mr McDevitt : I think you are putting words in my mouth, with all due respect. I said there was a saving in funding, in taxpayers' money, which I think is a reasonable and fair consideration. I think there was a significant saving in time. We would be before CAS now if we had gone the route that you are saying we probably should have gone.
Senator MADIGAN: A foreign body, not an Australian one.
Mr McDevitt : So we saved money; we saved a hell of a lot of time. I am aware of the stress that these matters have caused for all stakeholders involved here, not just the players, and I think it was a considerable saving there. What we needed was resolution of these matters, and we needed the truth to be revealed.
Senator MADIGAN: Do you believe that ASADA, as a Commonwealth agency, has an obligation to act as a model litigant?
Mr McDevitt : Absolutely, and we do at all times act as a model litigant.
Senator MADIGAN: In section 2(d) of 'The Commonwealth's obligation to act as a model litigant', it says:
… endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate
I go back to the fact that you did have an ability, there was an opportunity there, for ASADA to appeal the decision under the AFL doping tribunal procedures, but you did not take it. That is on Australian soil under Australian law, not a foreign body. You have said that the 34 players can appeal the decision to CAS, but it is on the other side of the world, and these people's livelihood has been taken from them. Do you think it is fair that they have to go to the other side of the world? I think the hearings are in French, aren't they, Mr McDevitt, in CAS?
Mr McDevitt : There are multiple questions there.
Senator MADIGAN: Do you think that is fair?
Mr McDevitt : Absolutely. I think the main thing we have got to do with these matters is get to the truth. We need to expose the facts. I do not think you should be talking about the Court of Arbitration for Sport as if it is some foreign entity that is unknown to us. The Court of Arbitration for Sport hears about 300 matters a year. It has three officers, one in Lausanne, one in New York and one right here in Sydney. It is the most eminent body. It is recognised. For all 85 sports that we deal with in this country, an appeal option to the Court of Arbitration for Sport is built in, in fairness to athletes, to have an appeal option beyond their own tribunals. Are you saying, Senator, in terms of fairness, that you think that that appeal option should be taken away from athletes? They exercise it quite regularly.
Senator MADIGAN: I want them to have an appeal, Mr McDevitt. I want them to have an appeal under Australian law, which Australians expect and, most importantly, deserve, not to be tried by some foreign body. The game of AFL is not an international sport; it is an indigenous sport to Australia. Australians expect and—I repeat again—deserve to be tried under Australian law. I think that there are people quite capable of trying people for alleged breaches of codes in this country—and not for it to be outsourced to a foreign body. ASADA did have an opportunity to avail themselves of an appeals process, and they did not do it. You then outsourced it, and some might say you went verdict shopping, shopping for a verdict, to a foreign body.
Mr McDevitt : Senator, I totally disagree with what you are saying there.
Senator MADIGAN: I am sure you would.
Mr McDevitt : We acted entirely as a model litigant would act, and we took the option of going to the Court of Arbitration for Sport. In the last couple of years, we have had 11 matters before the Court of Arbitration for Sport, not just this one. As I said, it adjudicates in over 300 matters a year, including multiple Australian matters. There are 23 Australians who are arbitrators on the Court of Arbitration for Sport. It is a body which is totally independent of sports, which I think is absolutely critical and is the way that we should globally be. In fact, as you will see today, the International Olympic Committee has now said that any antidoping matters which come out of this year's Olympics or any further Olympics will be immediately referred to the Court of Arbitration for Sport, a totally independent body of eminent experts in sports law.
Senator MADIGAN: Is there a distinct difference, in ASADA's view, between an amateur sportsperson and professional sportsperson? Do you see any difference there?
Mr McDevitt : No, I believe they all should have the rights to appeal any matters that are against them, and one of those critical rights for them is to have an appeal option to the Court of Arbitration for Sport. There is the fallacy out there that it does not apply, for example, to team sports. Of the 85 sports that we have here in Australia, 30 plus of them have a team element, and 18 of them are pure team sports. That includes rugby union, hockey, ice hockey, AFL, soccer—there are 18 sports that are just pure team sports. It is good enough for the English Premier League, Senator, but it is not good enough for the AFL to have an option to go to the Court of Arbitration for Sport?
Senator MADIGAN: Do Australians have a right to be tried, examined, for whatever they may or may not have done, under Australian law?
Mr McDevitt : Let me put it another way. What was conducted here and the processes that were followed here were under the AFL's antidoping policy. So, under the AFL's own rules, we exercised the options to appeal to CAS—under their rules. Does that help you?
Senator MADIGAN: Mr McDevitt, earlier in your evidence you said that, for want of better words, the burden of proof to those two retired Victorian County Court judges and an eminent barrister was here, that ASADA—for want of better words—could not get a conviction at that level, and that the level of CAS was here. There are two different levels there. This is the Australian level that Australians all expect and deserve, and this is the CAS level, in a court. That is what you said.
Mr McDevitt : Senator, this is consistent with your remark that the AFL Essendon players were treated the same as rapists. With all due respect, we are talking about totally, totally different situations. I have worked most of my life in the criminal jurisdiction. I have arrested and charged rapists, multiple times. And I can tell you it is totally, totally different. What we are dealing with here is sports law. The sports law requires a bar, which is called 'comfortable satisfaction', which is movable between 'balance of probabilities' and 'beyond a reasonable doubt'. Both I and WADA believe that in this case the AFL Tribunal held that bar far too close to 'beyond a reasonable doubt'.
Senator MADIGAN: But wasn't the AFL Tribunal WADA compliant? When they set up the AFL doping tribunal, WADA were involved in the setting up of that process, were they not?
Mr McDevitt : Not to my knowledge.
Senator MADIGAN: You are saying that the AFL doping tribunal was not WADA compliant?
Mr McDevitt : No, I am not saying that.
Senator MADIGAN: I am just trying to understand, Mr McDevitt.
Mr McDevitt : There is a framework which starts with the UNESCO convention, as you are aware, of which there are hundreds of countries which are signatories. We then had, as you are aware, the World Anti-Doping Code. WADA does not own the code, and WADA does not impose the code. All that WADA does is monitor compliance with the code. The code itself is developed by countries and sports.
Senator MADIGAN: I understand that. I am just saying: was the AFL doping tribunal, in the way it was set up, compliant with WADA, or was it not? Do you know; yes or no? It is fair enough if you do not know.
Mr McDevitt : It was established under the AFL's antidoping policy, and, yes, the establishment of that tribunal is consistent with the requirements of the World Anti-Doping Code.
Senator MADIGAN: So it was consistent. This is my last question. Australia is a signatory to the International Labour Organization convention on the rights of workers and their conditions of work. This specific treaty was ratified by the Australian government decades before anything was signed against doping in sport. The fact of the matter—what concerns me—is that we have a code that you say the Australian government signed up to under which now a foreign body or entity has affected people's right to work, their ability to work. Can you see my concern here, Mr McDevitt? A foreign body has taken away people's livelihoods.
I might also add that some of these people have business interests outside football, so they are looking to the future, when they retire. I know for a fact that some of these people have interests in business that is involved in other areas, sports promotion for one, where that business has been told, as a result of this foreign body that is not subject to scrutiny by the Australian public and parliament, 'Don't bother applying for work with us to promote our sports thing if you've got such-and-such'—who is one of the 34 Essendon players in that. Can you see the wide-ranging ramifications for individuals, Mr McDevitt, and how this is a very slippery slope to be going on? I have no truck with people who are drug cheats or cheat, but they should be trialled under Australian law, where it is able to be scrutinised by this parliament. Our job here is to protect the right of Australians to a fair and transparent trial.
Mr McDevitt : Let me try to answer this as quickly as I can. Let me read this too you: 'An ineligible player cannot participate in a training camp exhibitional practice. The term activity also includes for example administrative activities such as serving as an official, director, officer, employee or volunteer of the organisation described. Ineligibility imposed in one sport shall also be recognised by other sports.' You probably think I am reading something from Switzerland. I am reading the AFL's rules. What you are seeing in place is the AFL applying its own rules. If people are found to be in breach of the AFL anti-doping policies, there are very strict consequences. It is not forbidding employment in a whole range of other areas but what you are seeing now is that there are very specific AFL rules about where and when somebody who is undertaking a ban can be employed. Those are the AFL's rules.
Senator MADIGAN: The AFL Anti-Doping Tribunal did not find them guilty, did it?
CHAIR: We are going to leave it there. There might be time to come back but I have others waiting to ask questions.
Senator BACK: I also want to ask some questions about Essendon and the Thymosin Beta-4. Were the players advised by the Essendon club of the supplement they were to be given?
Mr McDevitt : I was not there and I cannot put words in anybody's mouth. Suffice to say that 34 players have given statements and evidence to say they attended briefings about the program that they were to enter into and 34 players signed consent forms to be administered a number of substances, one of which was Thymosin.
Senator BACK: Do you know if they were told that that particular product was legal to be used?
Mr McDevitt : There have been various accounts about exactly what players were or were not told. Whilst I appreciate this is a very important point about what information they were given by, for example, support personal, ultimately the onus rests always on the individual. If they were unsure then they should have sought advice from their doctor. Their doctor gave evidence to say that none of them did. They should have gone to the website where you can look up the substances that are banned but we have no evidence that any of them did. They did not make the inquiries.
Senator DI NATALE: That is not true. Sorry. One of the players went and did some research on the product, that is well-documented.
Senator BACK: Can I continue?
Senator DI NATALE: Sorry.
Senator BACK: Thank you, Senator Di Natale, that is fine. The advice to me was that they did receive assurance in writing from the Essendon Football Club that the product they were to be given was legal. Can you respond to that or can you take that on notice and advise the committee whether or not my assumption is accurate?
Mr McDevitt : I am not aware of that. I will take it on notice.
Senator BACK: Again, the advice to me is that not all players were actually given the supplement—that a number were not given the supplement. Is that consistent with your understanding?
Mr McDevitt : That is correct.
Senator BACK: But they are amongst the 34 who have been found guilty although they never were given the supplement.
Mr McDevitt : Sorry, let me just correct that. There are other players beyond the 34 who were not given the injections. Our evidence is that there were two threshold issues applying to the 34 that were quite critical. All 34 said they did receive injections—of the players who we proceeded against—and all 34 did a sign consent form for various substances including thymosin.
Senator BACK: Were they tested?
Mr McDevitt : Yes, I think there were 30 testing missions across the 2012 season.
Senator BACK: Of all 34?
Mr McDevitt : No, the 30 tested missions covered a total of 21 players, and on all 30 testing missions none of those 21 players ever declared receiving an injection from Mr Dank.
Senator BACK: There were 13 then who were never tested—21 out of 34 were, 13 were not?
Mr McDevitt : I am not sure what the double-up was. What I am saying is 21 of the 34 were tested.
Senator BACK: At what point did they identify to somebody that they had been given this supplement? Was it at the point of testing? Was this the scenario: they went in for a test, the person about to test them said, 'Have you been given any supplements?' Is that how it happened?
Mr McDevitt : That is how it happened. They were asked questions around what have you been given in terms of medication, supplements, any substances, vitamins, anything? What have you been given in the previous seven days? What we had is that not one of them declare these injections. As I said earlier, their own doctor gave evidence to say that none of them approached him in relation to these particular injections.
Senator BACK: We know the 21 were tested. We know the 13 were not tested. Is that correct? Am I right in that summary? You mentioned 21 out of 34.
Mr McDevitt : You are arriving at a number of 13, but your number may actually be higher than that. I am not sure exactly how many times players might have doubled up.
Senator BACK: Perhaps you could take it on notice. The point I want to get to is, if there are numbers of players who were never tested and therefore were never asked, then the question to me is: how are they now found guilty in the court when they were not tested? You just mentioned the last seven days. The information available to me is that amongst those who were tested there were people who had not in fact taken the supplement or been given the supplement within that last seven days and yet they are in the 34. My assumption is that we have three groups. Group 1 is those who were tested within the seven days who said they had not been and they are guilty. Group 2 had not been given a supplement within seven days and, therefore, were absolutely honest when they said, 'We haven't been tested in the last seven days,' but they are in the guilty group. Group 3 have not been tested yet and they are in the guilty group. I need to understand where you can have the guilt of 34 people, some of whom have not been tested?
Mr McDevitt : The premise of your question is that the offence itself is failing to declare the test. That is not the case.
Senator BACK: Right, tell me where the offence was then.
Mr McDevitt : The violation was established through numerous pieces of circumstantial evidence, and if we have the time I will step you through that. What the failure to declare was evidence of was not the offence in its own right, but what the CAS found was that the failure to declare on 30 separate missions to 21 players was indicative of the course of conduct and the culture of secrecy around this particular program. To be frank, it was not a supplements program. This is not supplements; this is banned substances. This was an injections regime, not a supplements program.
Senator BACK: I want to get to that. You have again confirmed 21 players, so 13 at the moment who in my mind have been found guilty without having been the subject of testing. How many, if any, positive swabs—I will call them swabs from my experience as an equine veterinarian—were found to be positive?
Mr McDevitt : At this point in time there is no test to detect artificially administered thymosin beta-4. It occurs naturally in all of us.
Senator BACK: That was going to be my next question: what are the blood levels naturally occurring so we can know the levels of artificial injection?
Mr McDevitt : It occurs naturally in all of us to various extents.
Senator BACK: Exactly.
Mr McDevitt : So, much as there are efforts underway, as with a whole range of substances, to develop tests, in 2012 there wasn't a test for detecting artificially administered or exogenous thymosin beta-4—and, to date, there still isn't. So the fact that there was not a positive test is not, of itself, really taking us anywhere. This is why, in this case, the case was established via other circumstantial evidence—because there weren't positive tests.
Senator BACK: Do we know what effect this or other supplements have? Do they have a stimulatory effect on the central nervous system? Is there a metabolic stimulation? Does it enhance the oxygenation of the blood? What do these supplements do? How do we know they were not placebos? How do we know they were not just coloured lolly water?
Mr McDevitt : The question you ask is important. This is why it is so dangerous—because we do not know the effect of these substances. We know that people use TB-4 for things like accelerated recovery, and that is why we find athletes utilising substances like this. But you have hit the point: the scariest thing about all this is that we actually do not know. There have not been human trials on the substances, and that is why it is banned.
Senator BACK: We do not know the naturally occurring level in the blood. Therefore, we do not know the impact on the blood levels of artificially injected materials. As you said, it may have a recovery effect—and I can understand that—
Mr McDevitt : That is what it is touted as having.
Senator BACK: but it does not seem to have any effect on performance on the day. I agree with you about the abuse of drugs, pharmaceuticals, in the body—whether it is an animal or a human being. But the concern I have is this. You mentioned in your response to Senator Madigan that the Court of Arbitration for Sport found that no records had been kept by Essendon. I have no difficulty at all in a circumstance where somebody finds Essendon guilty of a whole range of activities, but I think we have learnt from you that there is not a court of appeal within Australia to which these people can appeal. I understand that there is a Court of Arbitration for Sport in Sydney, but am I correct in that assumption?
Mr McDevitt : All parties would have had an appeal to the AFL anti-doping tribunal.
Senator BACK: Which they did.
Mr McDevitt : Beyond that, the appeal option is to the Court of Arbitration for Sport. Can I just add that that is not unique to the AFL; it is the case for all 85 sports in Australia.
Senator BACK: Presumably the Australian parliament or the government made a decision to allow the circumstance in which an Australian court ceased to be the highest court of appeal and passed it over to Court of Arbitration for Sport? When did that happen and what was the process that allowed it to happen?
Mr McDevitt : I cannot give you the exact date off the top of my head. What I can say to you is that that decision was made in the Australian parliament when Australia committed to becoming one of the hundreds of countries who were signatories to the UNESCO convention on anti-doping. Underneath that, you had a whole series of articles, legislation and regulations to give effect to that commitment by the Australian parliament. So I guess it was when the ASADA Act 2006 was passed through the parliament. That is when this all blew out.
Senator BACK: Team sports in the United States—football, basketball and baseball—are not signatories to this particular contract.
Mr McDevitt : That is correct.
Senator BACK: Do you understand why those team sport codes in the United States are not signatories and do you think that is of any relevance to this country?
Mr McDevitt : That is a really good question. Let me talk about the National Football League for a second. The National Football League, as you said, is not technically a WADA-compliant organisation. The NFL works out its rules between players association and the NFL players themselves. Let me give you an example. Human growth hormone, which has been on the World Anti-Doping Code banned list for multiple years, was not actually banned in the NFL until the end of 2014. Why? Because the NFL players decided that they did not want it to be on the banned list. And when they did actually accept that it was on the banned list they determined their own penalties. The penalty for the use of human growth hormone in the NFL is a four-week ban. The penalty under the World Anti-Doping Code is a four-year ban. So what you have got there is frameworks the sports organise on their own. What you have got is a Clayton's framework when you do not want to sign up to the World Anti-Doping Code.
Senator BACK: I think your advice to be—and I would not want to dispute it—is that there are circumstances not applicable here. But I do want to sum it up this way if I can. It seems to me that there are 34 people who are now found guilty, and the implication of that is that they have been banned from sports promotions et cetera. A number of them—I think it was 13—were never tested. Another group were tested, as I understand it, but outside a seven-day preclusion period and they have been found guilty. A third group would appear to be within the seven days and they are guilty. But we have a circumstance in which the tests are inconclusive because nobody knows the baseline for the chemical occurring naturally in the body. We do not know whether this particular chemicals have a direct effect on performance on the football field. And we are in a circumstance in which, as you said, a football club had no records. It would appear that at least one of the players did avail himself of the opportunity to learn about the pharmacology. But if 18- or 19-year-old kids were told by the club that the product was safe and they were advised by the club in writing that the product was legal to use with or without the consent of their parents or other guardians, then I am at a loss to understand how 34 players are now guilty. I am also at a loss in terms of proportionality. Even if the case can be made—and I do not believe it can—I am concerned about the proportionality. We had a group that said it had been taking it within a seven-day period. We had another group who did not take it within the seven day period and would therefore have been quite honest in saying that they did not take it. And we had a third group who never took it—or were never tested, so we really do not know whether they took it. All three groups have been found equally guilty. As an Australian, I find that unacceptable. I would appreciate it if you could comment.
Mr McDevitt : The members of the club implemented a program to make Essendon players bigger, stronger and able to recover more quickly to gain an advantage over their opposition. In the words of Stephen Dank, thymosin was the vital cornerstone of that team based program. Essendon sports scientist Stephen Dank was shown to have used thymosin beta-4 on other athletes prior to him getting to Essendon. There were over 100 text messages that unveiled a plan to source thymosin beta-4 for the purpose of doping the Essendon team. The 34 players signed consent forms agreeing to thymosin beta-4 injections and each of them admitted to receiving a number of injections. Six players reported being told they were being injected with thymosin. Two players reported seeing vials marked with the word 'thymosin' in the sports scientist's fridge. Two players sent text messages discussing their thymosin injections with Stephen Dank. Analysis of the substance compounded by the pharmacist showed that the substance was no other kind of thymosin—with a 97 to 99 per cent probability—than thymosin beta-4. Frankly, this stuff about thymomodulin—the 'good' thymosin—was shown to be absolute rubbish. That is a very short synopsis of some of the evidence that was presented.
I know you are very focused on the test. Again, I just need to say to you that the CAS did not convicted or find guilty these players purely because they had not declared something on a test. They looked at that aspect simply to say that that was consistent with the other facts that led them to believe that this was a program that the players had agreed to keep secret; a program that the players, as a collective group, agreed was taking them right to the edge.
Senator BACK: One argument could have been it was the code of the team. Another argument has been they are guilty of trying to hide information. Thank you for your information. The proportionality is the thing that really gets to me. The proportionality, I think, is grossly unjust.
Senator DI NATALE: Mr McDevitt, I am not sure which one it is. A moment ago you told us you did not know what this stuff does and now you are saying that it makes the players bigger and stronger. Which one is it?
Mr McDevitt : Don't forget, there were multiple substances here.
Senator DI NATALE: That is irrelevant because they are not found guilty of taking other substances. They are found guilty of Thymosin Beta-4, so what does it do? Does it make people bigger and stronger or do we not know what it does?
Mr McDevitt : As I said earlier, we do not know everything that it does. It is primarily promoted, in my understanding—
Senator DI NATALE: Promoted, yes.
Mr McDevitt : —for recovery. As being an agent for recovery.
Senator DI NATALE: To be clear, you are saying that on one hand it makes the people bigger and stronger, then we are talking about recovery and then we are saying we do not know what it does. Isn't it fair to say there is a good chance this stuff does nothing for performance?
Mr McDevitt : I doubt it. Let me just—
Senator DI NATALE: No. What is the evidence that it does?
Mr McDevitt : If you can recover more quickly you can start pumping iron, you can start running—
Senator DI NATALE: What is the evidence that this improves recovery?
Mr McDevitt : —so the fact that you can train harder and if you recover more quickly then, yes, you can get bigger and stronger.
Senator DI NATALE: What is the evidence that it improves recovery?
Mr McDevitt : I will have to take that on notice. What I can say to you—
Senator DI NATALE: You are making claims about what effect this—
Mr McDevitt : It is promoted globally and it is distributed and trafficked globally because it is believed that it promotes recovery and, as I said to you, if you can recover more quickly you can train harder and you can get bigger and stronger, and that was the aim.
Senator DI NATALE: Go to any health food shop and there are lots of drugs there that are promoted as helping you to lose weight, you lose five kilos in a week. It does not mean that is what they do. I am asking you about the evidence for what this does. The reason I am asking you is that I think you called this the worst case of systematic doping or team doping this country has ever seen. How can you put a substance like this, which some people argue does absolutely nothing, next to a drug like EPO or testosterone or growth hormone, which are all deliberately designed to help people become bigger and stronger?
Mr McDevitt : It is a banned substance—
Senator DI NATALE: I saw Mr Bowles pass you—I am trying to get you on the facts here and the facts are that you are making claims about the drug that are completely unsubstantiated. I accept that it is a banned substance, so let's move on to that issue. What has been the total cost to date of Operation Cobia?
Mr McDevitt : The total cost of the Cobia investigation has been $5.947 million. External legal costs were $4.329 million. Costs arising from the federal court cases and appeals by Mr Hird and Essendon Football Club total $1.86 million. They are all included in the $5.947 million. And $1.26 million of those costs have been recovered from Essendon and Mr Hird, when they had costs orders against them.
Senator DI NATALE: How much did ASADA contribute to WADA's costs for preparing to make the appeal?
Mr McDevitt : For the wider appeal, the costs were in the order of $130,000, and a $10,000 cost for the CAS arbitration fee. Ultimately, the CAS costs themselves were to be paid by Essendon and the AFL, not by ASADA. I hasten to add that the costs of the CAS appeal and the CAS hearing were significantly less than the costs of the original AFL Tribunal hearing.
Senator DI NATALE: Do you have those numbers?
Mr McDevitt : Approximately $950,000.
Senator DI NATALE: Compared to?
Mr McDevitt : $130,000.
Senator DI NATALE: What I am interested in is there was a clear change in response from you, Mr McDevitt. Back in the middle of 2014, the impression was that the players were not at fault. I think it is best if I quote you. In June 2014, during a radio interview you said:
I think what you are looking at here is a case where there would be good opportunity for a player to say no significant fault.
Then, I think in November, you went on and said, 'Based on the information that ASADA has, the maximum reduction of 50 per cent of the applicable period of ineligibility for no significant fault or negligence would be appropriate.' Clearly, you were of that view and then something changed. Then it became, as I said, the worst case of team based doping in the country and the players had a head-in-the-sand approach. What changed?
Mr McDevitt : A number of things. Let me just say that firstly in terms of penalties, it is very important to point out that ASADA does not determine the penalties.
Senator DI NATALE: No, we accept that.
Mr McDevitt : Penalties are determined by the sport itself or, if it goes to a tribunal, by the tribunal. In relation to the Essendon players, discussions on penalties were had with relevant parties in June 2014 and in November 2014. I engaged in those discussions with a view to trying to get some resolution on these matters. That was what I was trying to do. I tried to do that before infraction notices were issued. The reason I did that is that there were opportunities for players—and it is the same for any athlete—to come forward, for example, and claim substantial assistance if they come forward and give assistance or if they decide that they want to mount a defence of no significant fault. In this case, and this is where it becomes important, to actually claim no significant fault—and I did put it out there and said, 'Look, you may be able to try to establish this claim and no significant fault—the players said: 'No, we are not going try that. We are going to fight it. And what we are going to do is deny it.' To get no significant fault, you have to firstly admit that, yes, you had the substance. So once they made that critical choice to go to a hearing, the onus was then on them to prove no significant fault. If they had stayed in a state of denial and hence—
Senator DI NATALE: But maybe they believed they were not taking a substance. That is the whole point of no significant fault. It is a non sequitur.
Mr McDevitt : No significant fault means I had the substance, I drank this glass of water and, yes, there was a banned substance in there but I did not know. It was put in there by someone else or whatever. But I have to first say, 'Yes, I took that water and, yes, I accept—
Senator DI NATALE: So you are saying that they rejected having any substance at all?
Mr McDevitt : They rejected it, Senator.
Senator DI NATALE: Right, okay. Once they had acknowledged that they were injected with the substance but had made it clear that they had no knowledge that this was a banned substance, why was no significant fault still not appropriate in those circumstances?
Mr McDevitt : They said that they were injected with Thymosin.
Senator DI NATALE: But they are not chemists; these are kids. They are 19-year-old kids.
Mr McDevitt : They are not kids. They are not minors. They are not children. They are fully-grown adults.
Senator DI NATALE: Yes.
Mr McDevitt : They are fully-grown adults who receive education on multiple occasions—
Senator DI NATALE: Most doctors do not know what Thymosin is. How do you expect a young footballer to know what it is?
Mr McDevitt : Their education is about personal responsibility for what goes into their bodies.
Senator DI NATALE: I get that. But getting back to the no fault significant fault issue, my issue is this—and it is similar to Senator Back's in a way—these are young players. They do not understand pharmacology and, as I said, a lot of this stuff here is hocus pocus. They are given a reassurance. You were saying early on no significant fault and then something changes where you throw the book at them.
Mr McDevitt : Hang on. When you say I said 'no significant fault', I said to them—
Senator DI NATALE: that it would be appropriate—
Mr McDevitt : No, I said to them: 'If that was the case, come forward and tell us. Tell us fully what did happen, and if you can establish no significant fault then that would lead to a reduction in the penalties.' If they had all the questions—
Senator BACK: They would have been better to have said nothing, wouldn't they?
Mr McDevitt : Why didn't they go to a doctor?
Senator BACK: There are others outside the 34 but they are laughing their heads off.
Senator DI NATALE: What do you mean 'Why didn’t they go to the doctor'?
Mr McDevitt : Why wouldn’t you ask the doctor? You said they do not know about pharmacology, so if they do not know about pharmacology—
Senator DI NATALE: These are young people in a professional sporting environment being given something that they are told is going to help their performance. You quote Stephen Dank as an expert in terms of what this stuff does. They are in a sporting environment with a whole sports science department behind them. They are being given information saying this stuff is legitimate. Why on earth would you go to the doctor? I do not understand. It does not follow.
Mr McDevitt : Sorry, why didn’t they go to the doctor?
Senator DI NATALE: You are saying, 'Why didn’t they go to the doctor?' Why should they?
Mr McDevitt : Senator, would you let someone come up and give you multiple injections and say, 'Don't worry; it's all good'?
Senator DI NATALE: If I were a 20-year-old getting my dream job, with a sports science department behind me and a coach saying, 'Look, this is absolutely fine. It's all legitimate; it's by the book,' why would I go to the doctor? That is a ridiculous proposition. Most people go to the doctor when they have an injury, when they are unwell. We have the sports science department giving them supplements. That is not a trigger to go to the doctor.
Mr McDevitt : The sports science department—Stephen Dank?
Senator BACK: But we did not know about him at the time.
Senator DI NATALE: This is all well and good in retrospect. I know this sounds like it is a personal attack. I get that you have to implement what is a very rigid code. But, again, I am of a similar view to Senator Back's. You say ultimate liability rests with the players. Do you actually think it is fair?
Mr McDevitt : Yes, I do. And the reason I think it is fair is that it is fair to all of those thousands of athletes in hundreds of sports who run onto the field and expect it to be a level playing field, and do not want to run onto the field with somebody else who has got substances pumping around in their body that are promoted for quick recovery but make them bigger and stronger than the rest of us.
Senator DI NATALE: Substances that they do not know are actually prohibited substances. Let's not forget that small detail.
Mr McDevitt : But it is their job as athletes, as professional athletes, to make it their business to know. That is the cornerstone of the code and it is there for good reason. Yes, it might be seen to be strict, but it is strict and absolute. You ask any professional athlete anywhere on the globe. That is why this is so heavily subscribed across the world. Athletes want to be in a fair, square sport. If the athlete gets injections, the athlete must be asking the question 'What is it that you are injecting into me?'
Senator DI NATALE: Let me ask you just a couple more questions. One thing that has again struck me as a gross inconsistency here is that you have got one tribunal that uses a particular standard of evidence and then you have got another tribunal that uses a totally different standard of evidence. I think it was described as chain versus strand, but basically it is a different standard of evidence and proof. Why do we have that? Isn't that a problem with the process?
Mr McDevitt : No. The standard of evidence was the same for the tribunal and for CAS and is the same for all sporting tribunals. The standard is comfortable satisfaction. As I said, the comfortable satisfaction bar can move from—
Senator DI NATALE: Are you saying that you have got the same—
Mr McDevitt : The same standard, yes, but it is up to the panel adjudicating to apply that bar correctly and appropriately in the case. What has happened here is that they have started with the same standard of proof, but WADA and I both felt that it had not been applied correctly by the AFL tribunal, and the Court of Arbitration for Sport also believed it had been—
Senator DI NATALE: That is different to the analysis I have seen. You are saying that the AFL Tribunal got it wrong, but they are using exactly the same process for determining guilt.
Mr McDevitt : You have brought in a couple of different issues. One is the standard of proof to be applied—the lens that the adjudicator should look through, almost. That is the comfortable satisfaction lens, which was applied by both panels but set differently.
Senator DI NATALE: Hang on—applied by both panels but set differently? That is a different process.
Mr McDevitt : This is where it is slightly complicated. Let me try to explain it a little bit. If you were to say, for example, that something is adjudicated beyond a reasonable doubt, it means that you are saying with 95 to 98 per cent certainty that this is probably what happened. If you are saying 'on the balance of probabilities', you are saying that there is about a 60 per cent possibility that this happened. The difficult thing with comfortable satisfaction is it actually moves in between those, depending on several factors, including likely penalties, severity of the offence and so on. That was the level of accountability that both panels were expected to apply in this case.
The other factor that is slightly confusing is the way the evidence is presented. This is the links-in-the-chain approach versus the strands-in-the-cable approach. I do not want to get too bogged down, but I gave an example earlier. The tribunal used the links-in-the-chain approach, and said, 'You must prove where the Thymosin Beta-4 came from.' The Court of Arbitration for Sport said, 'That is wrong; you don't have to prove that at all.' In fact, if you had to prove that in every anti-doping case, it would be almost impossible.
Senator DI NATALE: Why the difference between the two?
Mr McDevitt : The other way of looking at this is that, as you know, Senator, in every walk of life—whether it is a criminal jurisdiction, commercial courts, international courts—quite often you will get different panels looking at the same evidence through presumably the same lens and coming up with very different conclusions.
Senator DI NATALE: Sure, but we are not describing that. You have already said that there were different thresholds applied. We are not talking about that; we are talking about different thresholds.
Mr McDevitt : No, we are talking about comfortable satisfaction.
Senator DI NATALE: You just said one is 60 per cent; the other is 80 or 90 per cent.
Mr McDevitt : They are two other thresholds—balance of probabilities and beyond a reasonable doubt. The criminal jurisdiction uses beyond a reasonable doubt; sports use comfortable satisfaction. I did not invent it, but it moves in between those two.
Senator DI NATALE: I want to ask about the Cronulla players. Why hasn't the NRL issued infraction to those five former Cronulla players who declined to plead guilty in 2014?
Mr McDevitt : I have asked the NRL the same question.
Senator DI NATALE: Okay, so it is a question for the NRL. Why did you take no action against the four Essendon players who signed the consent forms to be administered with Thymosin Beta-4, but then said they did not receive injections from Dank in 2012.
Mr McDevitt : They were not proceeded against.
Senator DI NATALE: Why not?
Mr McDevitt : This was about gathering sufficient evidence to be able to proceed.
Senator DI NATALE: So they were just smart by saying they did not get the injection?
Ms Perdikogiannis : Those players did not disclose that they had had no injections, and there was no evidence to the contrary.
Senator DI NATALE: So they may have had the injections, you just did not have evidence—
Ms Perdikogiannis : Of that fact.
Senator DI NATALE: —to support that, whereas you had evidence that others did?
Ms Perdikogiannis : That is right.
CHAIR: Are you telling us that the people who were found guilty self-incriminated?. I am at a loss to understand the difference between them and the ones who were let off—I think you said they had received injections?
Ms Perdikogiannis : They had signed consent forms, but denied receiving injections. There was no other contemporaneous evidence, either in the text messages or material gathered from Essendon's server, that indicated anything to the contrary.
Senator BACK: So the message for the 34 was, 'They should have gone down the path of their colleagues, shouldn't they?' You would not be here today—and they would not be guilty today—if they had not self-incriminated. Am I correct in that assumption?
Mr McDevitt : I would not assume that, Senator. There are two issues: was there a possible violation and does it warrant action? There was an evidence-gathering exercise which included multiple elements, including player's interviews and also other paths. We proceeded against the 34 where we felt that we had sufficient evidence to proceed. Subsequently, that decision has been confirmed and validated by the Court of Arbitration for Sport.
Senator BACK: I have one last question. I will tell you what I am on. Are you on any pharmaceuticals at all?
Mr McDevitt : No.
Senator BACK: You are not on any?
Mr McDevitt : No.
Senator BACK: I am. I am on ramipril, caduet and cartia. I have to say to you, I am a veterinarian. I am on those pharmaceuticals as a result of advice from my doctor, and the chemist prescribes them. I have never gone to have a look at the pharmacology of those three. I trust the advice of my doctor and my chemist. I am at a loss to understand how you would say that an 18-year-old should. I spoke recently to John Worsfold, who was the Eagles coach—he is now the Essendon coach—and a pharmacist. I put to him the question, 'Would an 18-year-old kid in the Eagles have challenged you, John, if you had said, "This is okay to use" when you are a senior coach and you happen to be a pharmacist?' I am at a loss to understand how you would think that an 18-year-old or 19-year-old would go past the doctor and the pharmacist, having gotten something in writing from his club, presumably signed by the doctor to say it was legal to use. I cannot understand it.
Mr McDevitt : This is the problem, Senator: in your situation those medications were, you just said, given to you by the doctor. That is not the case here. That is not the case at all.
Senator BACK: But the doctor oversaw it, didn't he? The club doctor oversaw it.
Mr McDevitt : No, the club doctor was totally in the dark. That is the difference between your situation and this. Why was the club doctor kept totally in the dark? I know you probably would not take anything that was not given to you, as you just said, by your doctor. In this case, the doctor was kept in the dark. It was not given to them by the doctor.
Senator BACK: So in terms of this particular brew which probably aids to recovery, Gatorade, do you think it shouldn't be used? It helps in recovery or rehydration.
Mr McDevitt : Gatorade is not on the banned list.
Senator BACK: Was this?
Mr McDevitt : This was.
Senator BACK: At the time?
Mr McDevitt : Thymosin beta-4 is on the banned list.
Senator BACK: Was it then?
Mr McDevitt : Yes. You would not believe the level of education that is delivered to these people by the AFL and by us, constantly and regularly, about their personal responsibility. I know people say, 'The club said to do it or someone else said to do it.' You just cannot shift that personal responsibility to anybody, full stop.
Senator BACK: And to finish someone's career is appropriate in terms of a penalty?
Mr McDevitt : That education program tells them very clearly what the penalties are. There are significant consequences for going down this path—and for very good reasons. If you have players running onto the field and playing against 17 other teams, what do you say to the other 17 teams about a team that has embarked on a program designed to make them bigger, stronger and recover more quickly?
Senator BACK: The difference—and you can speak about Olympic sports, et cetera—is that athletes are drug tested and if there is a positive the sample is split to an A and a B sample. If the A sample is found to be positive the due process requires that they are advised. The B sample is either analysed by a separate laboratory or—more likely—they get the chance to nominate someone to oversee it. So in all of those cases you have the due process of the law, haven't you? You have a drug or chemical—call it whatever you like—that is known to have a performance-enhancing effect that has been found to be in the body and nobody can argue the guilt of that person. But this is a totally different circumstance, isn't it?
Mr McDevitt : What you have said—and you have described very well the processes for an adverse analytical finding—
Senator BACK: Correct.
Mr McDevitt : You have described that beautifully; that is exactly what happens when there is a positive test.
Senator BACK: That is right, but we are not dealing with that, anyway.
Mr McDevitt : We have averaged two positive tests per month for roughly the last five years in this country. But what we also have is the fact that in more than 30 per cent of our cases there has not been a positive test. The issue with a lot of these substances now is that there are masking agents. The substances exit the body very, very quickly, and that is why testing needs to be at the forefront.
Senator BACK: We all know the challenges of getting a positive test.
Mr McDevitt : The lack of a positive test in no way shape or form means that an athlete is not cheating. That is what I am saying to you.
Senator BACK: With respect, and I will finish there—I am sounding cynical, but I do have to say it to you—I think the reason you went down the path of WADA rather than an Australian court of appeal, based on many years of experience in this space, is that you realised that an Australian court of appeal would have upheld the AFL decision. You do not have to comment on that. It is just my observation. It might appear cynical, but I think it is the case.
Mr McDevitt : I disagree, but in the interests of time—
CHAIR: Can I ask one quick one? Just for clarification: you said that thymosin beta-4 is on the banned list. Why is it on the banned list? Is it because it has not been tested or because it is known to be performance enhancing and unsafe?
Mr McDevitt : I would have to take it on notice. I suspect it will be a combination of both. I suspect it will be because it has not gone through a clinical trial—so it has not been determined to be fit for human consumption—on the one hand and, on the other, early science has most likely indicated that it does enhance performance. I suspect that for those two reasons it has probably been put on the banned list, but I will come back to you if that is wrong.
CHAIR: What is the tipping point with performance enhancing? There are a lot of things that are performance enhancing, but they are not all on the banned list—natural substances, all sorts of things, which help you perform better and help you recover better. Is it safety or is it how much it helps your performance?
Mr McDevitt : Again, it is a combination of both. My understanding is that the banned list is released annually. It is updated. There is a team of scientific experts who are brought together globally and they assess—because, obviously, hundreds and hundreds of pharmaceuticals and other substances come onto the market each year—and the list is updated. The list is promulgated annually. That is how it works.
Ms Perdikogiannis : If I may elaborate on that: WADA's list committee considers three criteria when deciding whether or not to include a substance on the prohibited list. Those are whether the substance is performance enhancing, whether the substance is dangerous to the health of athletes or whether the substance is against the spirit of sport. If the substance meets two of those three criteria then it is a substance that the list committee might resolve to put on the list. As Mr McDevitt said, substances that have not been approved for human use or veterinary use are prohibited. They are in what is known as the S-0 category. Thymosin beta-4 is a substance that is regarded as being one those peptide hormones and it is said to cause cell regeneration and blood vessel regeneration. But, as Mr McDevitt said, we can give more information on notice.
CHAIR: You said that it needs to meet two of those three criteria. So a substance could be safe, but if it is performance enhancing and it is against the spirit of sport it could be on the banned list. That seems a slightly nebulous term. What does that mean: against the spirit of sport? Gatorade clearly is not against the spirit of sport. It is seen as safe, perhaps slightly performance enhancing. Is it the degree to which it is performance enhancing that determines whether it is against the spirit of sport?
Mr McDevitt : The spirit of sport is about fair play, an equal field, a level playing field, and no athlete having an advantage. To be in breach of the spirit of sport means that somebody has an artificially induced advantage.
Ms Perdikogiannis : Potentially, a masking agent—so a substance that masks the evidence of a performance-enhancing substance in the body—might not of itself be performance enhancing, but it would be against the spirit of sport because it was concealing the use of a performance-enhancing substance.
CHAIR: We are just about out of time. Senator Peris.
Senator PERIS: Mr McDevitt, I want to go back a few steps. On 13 February, was thymosin beta-4 on the ASADA banned list?
Mr McDevitt : It is not the ASADA banned list; it is the WADA banned list.
Senator PERIS: Was it on the ASADA banned list or the WADA banned list?
Mr McDevitt : We do not have our own list. We all use the one list. It is brought together, then experts look at it each year and it is put out each year. All subscribing countries and sports use the one list—other than the NFL, for example, like we discussed before. They make their own list.
Senator PERIS: Did you say that came into play in 2006?
Mr McDevitt : I would have to double-check. The first iteration of the WADA Code came out in 2003. Our legislation was passed in 2006. I would have to take on notice when the list itself was first brought about.
Ms Perdikogiannis : There have been lists around. The IOC, for instance, had a list of prohibited substances and methods. The first WADA list, I believe, was in 2003. We apply the WADA list. That gets published and distributed every year by the World Anti-Doping Agency, and that is the list we apply.
Senator PERIS: A few things have changed. Back in my day as an athlete, I was drug tested by ASADA and WADA, depending on my world ranking. Are you saying that all sports in this country are subject to WADA drug testing?
Mr McDevitt : We have 85 sports. It will not be all sports. I think there are some sports who are not compliant.
Senator PERIS: Who determines the sports that are not compliant to that?
Mr McDevitt : The sports themselves determine whether or not they want to apply to be part of this framework and to have a compliant anti-doping policy. Most sports want their sport to be clean and fair.
Senator PERIS: If it is the World Anti-Doping Agency, do you agree that you should be an international sport to have it apply to you? Or are you saying that we should have a blanket approach for all sports?
Mr McDevitt : I come back to this: it is up to how the sport administrators feel about having a level playing field for their sport.
Senator PERIS: The positive tests that came back—how many of those actually tested positive?
Mr McDevitt : I said earlier that there is no test for detecting artificial thymosin beta-4. There is no test itself at this point in time.
Senator PERIS: But it is a banned substance?
Mr McDevitt : It is on the banned list, yes. Where it gets a little bit confusing is that we all have thymosin beta-4 in our bodies anyway. When I say that there is no test, it is that we cannot at this point in time differentiate between the endogenous TB-4 which we all produce and that additional TB-4 which might be artificially administered. That is the test that is missing at the moment.
Senator PERIS: You are saying that we have that naturally occurring in our body. The point I am making is that there was a lot of commentary about no-one going to the doctor. To me, with my sporting background, I would go to see our team doctor if I was sick, but you have a sports science unit. I know that having ice baths, for example, helps with your recovery. Protein shakes, as we know, can contain amino acids which help with recovery. Athletes are provided protein shakes through their sports science unit. If you are a player excited about playing AFL—it is your dream job—and you are told that to help with your recovery you are going to be taking a substance that occurs naturally in your body anyway, do you not agree that it is a harsh penalty?
Mr McDevitt : Senator, can I ask you: in your career, did you get injections on multiple occasions?
Senator PERIS: We did. When we went to India and we went overseas, we would all have to line up, and the team doctor would come along and give us our flu injections.
Mr McDevitt : It was explained to you that it was a flu injection? Was it administered by a doctor or a trained professional?
Senator PERIS: The flu injection was administered by—yes.
Mr McDevitt : So you would have had the comfort and knowledge, and you would have done the personal research knowing your responsibilities about what was going into your body as a professional athlete. You would have asked the questions. You would have said, 'This is the flu injection?' and presumably it would have said that, and someone would have told you that, and you would have been comfortable that what you were getting was for the flu.
Senator PERIS: That is correct. I guess I am saying they were in an environment where they were told that what they were doing was the right thing to do.
Mr McDevitt : Well, they were told not to tell anybody. When you were an athlete, were you ever told, 'Hey, you know these injections you are going to get; just don't tell anybody about that'? Were you ever told anything like that?
Senator PERIS: No.
Mr McDevitt : Would that have worried you?
Senator PERIS: No.
Mr McDevitt : It would not have worried you?
Senator PERIS: I know who the senator being questioned here is. Does ASADA believe that the current antidoping framework in Australia is working well, enough to cater for the AFL and other team sports?
Mr McDevitt : Absolutely.
Senator MADIGAN: Mr McDevitt, you refer to this WADA list of banned substances. I have been trying to find where this list is. For the benefit of the committee, could you point us to where this list is, because I am having difficulty finding this list that you have referred to tonight.
Mr McDevitt : I will give you the link.
Senator MADIGAN: Also, for the benefit of the committee, is ASADA able to furnish the committee with screen shots of the banned substances over the past five years, between 2010 and the present day?
Mr McDevitt : Essentially that will be copies of the list. Yes, I think we can get that for you.
Senator MADIGAN: And also tell us where we can get those ourselves—
Mr McDevitt : Sorry?
Senator MADIGAN: where the committee can access the lists of the banned substances from 2010 to the present day.
Mr McDevitt : It is on the WADA site, which is all part of the education program that goes to all the athletes. They all get education programs showing them exactly where the list is, but we will make it available to you.
Senator PERIS: Does James Hird have any further appeal rights over the ASADA matter?
Mr McDevitt : James Hird, as you know, initiated action against ASADA to the Federal Court asserting that the investigation was flawed and illegal. The investigation was held by Justice Middleton to be entirely legal, lawful and appropriate. Mr Hird then exercised another appeal opportunity, or right, to go to the full bench of the Federal Court. We then had a unanimous finding by the full bench confirming the earlier finding, so he has exercised a number of appeal rights in this matter already.
Senator PERIS: Does he have any further?
Mr McDevitt : I do not know what you mean. To appeal what? He has not had a violation substantiated—
Senator PERIS: Does he have any further right?
Mr McDevitt : As I say, he has exercised quite a few appeal rights. We talk about how long this thing has gone for. That is one of the contributing factors.
Ms Perdikogiannis : Mr Hird could have sought special leave to appeal to the High Court against the ruling of the full Federal Court, but he elected not to do that.
Senator MADIGAN: Could you show us where TB4 is specifically mentioned on those lists of WADA from 2010 to the present day?
Mr McDevitt : I will take that on notice.
Senator MADIGAN: Thank you.
CHAIR: I just remind senators that written questions on notice should be provided to the secretariat by close of business on Friday, 4 March 2016. Thank you, Minister. Thank you, Mr Bowles, Mr McDevitt and all our officials.
Committee adjourned at 18:24