This is a guest post by Martin Hardie (Deakin University), Dr Kathryn Henne (Australian National University) and Jason Mazanov (University of NSW). It was originally published by Deakin Research Communications.

The Minister for Sport Kate Lundy has recently said that up to 40% of athletes who ASADA seeks to interrogate refuse to answer questions. This has obviously been a source of frustration for ASADA in the wake of the USADA Armstrong investigation.

It may be correct to say that the Armstrong case heralds a new way of anti-doping organisations doing business, relying on its does on witness testimony rather than “positive” scientific test results.

However, what such statements don’t state is that the Armstrong case arose primarily from one former cyclist, Floyd Landis, going public and that it, in the end, relied upon the testimony of Landis and other cyclists who were disaffected with both the manner in which anti-doping had been administered by the UCI and Armstrong himself.

Furthermore, while USADA may have put pressure on some cyclists to tell their stories, it was done in the context of there being some measure of common interest between the witnesses and USADA. For a long time, we as anti-doping academics, have said that the current anti-doping regime will not be successful until and unless it brings athletes into the process, in one-way or another, as equal partners.

Until anti-doping offers athletes something more than being the objects of a global surveillance and policing operation it is unlikely that athletes will feel that they have a stake in the process.

If you treat athletes as the enemy, as potential criminals, as always being stuck somewhere between the Kafkaesque states of apparent acquittal and indefinite postponement, it should not be very surprising that they are not inclined to sit down and tell the policeman everything they know.

Faced with this problem, the Commonwealth attempted earlier this year to legislate its way out of the problem of non-cooperation by athletes. In the original ASADA Amendment Bill 2013 Minister Lundy thought it appropriate to remove for persons called in by ASADA the privilege against self- incrimination.

Faced with opposition from various stake holders and dissenting reports from the Greens and Liberal Party in a Senate Enquiry, the Minister agreed to an amendment proposed by Senator Richard Di Natale, that would require athletes and others to attend interviews with ASADA but that they will not be required to answer questions that may tend to incriminate or expose them to a penalty.

This was a welcome and sensible concession by the Minister as there is no doubt that the privilege against self-incrimination holds a special place in our legal system. In the United Sates the privilege is a constitutional principle – we have all heard of someone “taking the Fifth” and not answering questions put to them by the police. United States jurisprudence acknowledges that their constitutional right is but a statement of a deeply ingrained common law right.

Australian Courts have recognised that the historical basis for the privilege was in large measure a reaction to the unjust methods of interrogation of institutions such the Star Chamber. Courts, including the High Court, have referred to the privilege variously as a human right, aimed at the discouragement of ill-treatment of suspects and the extraction of dubious confessions. This human right is aimed at protecting personal freedom, privacy and human dignity and seeks to maintain a fair state-individual balance.

The Courts have also said that the privilege is fundamental to the adversarial justice in which we live, especially in the manner in which it goes to ensuring the equally fundamental principle that it is for the prosecution to prove its case and that they should not be able to compel the accused to do that for them.

The privilege is so fundamental to our legal system that in the absence of any clear and unequivocal statement of legislative intention to the contrary a person will always be able to rely upon it when facing both criminal and civil penalties. And as our Courts say in cases where the standard of proof is as high as it is in anti-doping cases, they are closer to the criminal case than they are to the civil case.

Thus, the situation is, in so far as Parliament is concerned, that the privilege will not be abrogated by Parliament. That is Parliament has acknowledged that the privilege is a fundamental part of our legal system and should not be interfered with in anti-doping cases. But clearly given her comments the Minister is still not happy, and it appears neither is the AOC.

Earlier this month the AOC published its new Anti-Doping By Law which states in part:

“All Athletes must:

(2) co-operate with and assist ASADA , including by:

(a) attending an interview to fully and truthfully answer questions;

(b) giving information; and

(c) producing documents, in an investigation being conducted by ASADA, even if to do so might tend to incriminate
them or expose them to a penalty, sanction or other disciplinary measure … “

In effect the AOC is seeking to do by contract – remove a fundamental common law privilege and right – what Parliament has decided it will not do. In these circumstances one has to question the validity and legality of the AOC By-Law.

Firstly, the power to make such By-Laws flows from the contractual relationship between an athlete and their sport when they take out membership. From this point on both athlete and sporting association (including the AOC) must strictly comply with the rules upon which they have jointly agreed. The rules will be valid in so far as the contract has been entered into with free and fully informed consent and in so far as they do not offend public policy.

One has to wonder if holding the gun of not competing in the Olympics against an athlete constitutes a contract that has been entered into with the necessary condition of free and full consent. Furthermore, one has to wonder if a contract that seeks to remove a fundamental common law right and privilege, that Parliament has decided that it should not remove, is not provision in a contract which is void as being contrary to public policy and the proper administration of justice.

Courts have for a long time held that there are some things which one cannot consent to or contract for on the grounds of public policy. For example we know that one cannot consent or contract to be assaulted in a way that causes bodily harm – the English case of R v Brown is an example where a group of English sado-masochists argued unsuccessfully in their defence that they had consented to being harmed in such a way.

Similarly there is authority for the proposition that one cannot consent or contract to become a slave. In a similar vein was the argument put to the Courts in relation to the Northern Territory Euthanasia laws – that one cannot consent to be killed.

The precise limits of what one can do and can’t do by contract need to be spelled out in the circumstances of each case.

What seems apparent to us is that the merits of the AOC By-Law require some critical reflection, it requires more than another rash of evangelical cheerleading about catching the cheats.

It also requires us to consider the reasons why anti-doping officials have such a hard time communicating with athletes.

It requires us to ask, well maybe, the problem is one of trust and in the end one of making the athlete’s partners rather than objects in the process.