XZTT Non-Disclosure - Legal Issues for the Forum

[Realist]

In another thread, a poster pasted part of the XZTT judgment:

ANCILLARY MATTERS]

Note this statement:

Counsel for the Respondent advised the Tribunal that, special circumstances aside, an entry in the Register does not become a public document.

Now, this is wrong in fact and in law...

As stated in plain English on the ASADA website, under the ASADA Act and the NAD scheme, ASADA is authorised to publish information once a decision has been handed down by the relevant tribunal with regard to ASADA’s register of findings. Under the WADA code, ASADA is required to place sanction information on the website for at least one year. One can confirm these things by looking at the ASADA regulations, Schedule 1, Division 4.3, and the WADA code. Thus, while the Register itself does not become a public document, its contents do become public (and are required under the code to become public), and it would be a particularly strange and semantic argument to say that the entry in the register does not become a public document. Martin's representation to the tribunal might well, therefore, be considered inaccurate.

Beyond this, Martin has been responsible for shutting down a thread and threatening forumites regarding the disclosure of XZTT's identity. There are issues with Martin's representations on this forum, specifically as to whether the tribunal's decision not to publish constitutes a suppression order. If it truly did, ASADA would be in contempt when it publishes the name. However, note that under the ASADA regulations, schedule 1, 4.22.1(c)(i), ASADA can publish an entry in the register even when an order under s35 exists, provided that "the review process has been fully determined".

I suggest that if Martin is going to threaten people on this site with contempt of court, he tread very carefully. He should be aware as an advocate that bluster is discouraged by Australian courts.

Those of you who want to know the name will know soon. I will not disclose it here for fear of inflaming the mods.

 

[pelodee]

@Realist

Can you provide me with the links to where the following 2 members wrote what you quoted them as saying please?

1) XZTT Judgment:

ANCILLARY MATTERS; IDENTITY OF THE APPLICANT

In earlier interlocutory proceedings in this matter, a differently constituted Tribunal determined that the athlete who filed this application for review was to be referred to by the letters XZTT. The Tribunal’s conclusion that an entry be made in the Register will require that entry to name the athlete.
Counsel for the Respondent advised the Tribunal that, special circumstances aside, an entry in the Register does not become a public document. Continuing the effect of the interlocutory decision would not be a matter of futility. Neither party submitted that the interlocutory order should be discharged, or that it was in the public interest that the name of the athlete be made public as a result of these proceedings.

In those circumstances, the Tribunal is satisfied that the most appropriate reconciliation of the rights of the athlete with the Tribunal’s obligations to give reasons is that the Tribunal will provide its unedited reasons to the parties, but will order that in the version to be published the name of the athlete referred to in paragraphs 44, 47 and 227 be replaced with the letters XZTT and, in compliance with the Tribunal’s identity theft and anonymisation policy, the athlete’s date of birth, wherever referred to, be replaced with the letters dd/mm/yyyy.

2) Martin Hardie:

Counsel for the Respondent advised the Tribunal that, special circumstances aside, an entry in the Register does not become a public document.

 

[Runitout]

In another thread, a poster pasted part of the XZTT judgment:



Note this statement:


Now, this is wrong in fact and in law...

As stated in plain English on the ASADA website, under the ASADA Act and the NAD scheme, ASADA is authorised to publish information once a decision has been handed down by the relevant tribunal with regard to ASADA’s register of findings. Under the WADA code, ASADA is required to place sanction information on the website for at least one year. One can confirm these things by looking at the ASADA regulations, Schedule 1, Division 4.3, and the WADA code. Thus, while the Register itself does not become a public document, its contents do become public (and are required under the code to become public), and it would be a particularly strange and semantic argument to say that the entry in the register does not become a public document. Martin's representation to the tribunal might well, therefore, be considered inaccurate.

Beyond this, Martin has been responsible for shutting down a thread and threatening forumites regarding the disclosure of XZTT's identity. There are issues with Martin's representations on this forum, specifically as to whether the tribunal's decision not to publish constitutes a suppression order. If it truly did, ASADA would be in contempt when it publishes the name. However, note that under the ASADA regulations, schedule 1, 4.22.1(c)(i), ASADA can publish an entry in the register even when an order under s35 exists, provided that "the review process has been fully determined".

I suggest that if Martin is going to threaten people on this site with contempt of court, he tread very carefully. He should be aware as an advocate that bluster is discouraged by Australian courts.

Those of you who want to know the name will know soon. I will not disclose it here for fear of inflaming the mods.

1. I did as you suggested, and looked at the Regs.

4.22 is cumulative; you're only citing one of the hurdles that must be met for publication. 4.22(1)(a) must also be met. [hint - Kerr J mentions the relevant criterion in paragraph 232 - he's paying attention. Were you?]

You're suggesting that Kerr J was misled by Hardie's assertions regarding publication. Yet the public interest criterion addressed by 4.22(1)(a) is directly alluded to by Kerr J. What did he get wrong?

I'm not aware of the exact terms of the interlocutory suppression order they refer to. I wouldn't want to find out by spending a few days in a remand centre, though. Here's a guy who was screwed over by the UCI, and won his day in court. Good for him, but I'm not spending time in gaol because curiosity killed the cat. You can keep that.

 

[Dear Wiggo]

@"Realist": Will it make you feel better?

You have a dig at someone who says they didn't dope, dissing them about talking about it, then get all kinds of desperate to out a low level pro who has already lost his career.

Where's the source of bitterness from mate? Got something you need to get off your chest?

These examples of your angst are indicative of an underlying issue - so what's up? I am sincerely curious where you're coming from and what's eating you.

 

[MarkvW]

In another thread, a poster pasted part of the XZTT judgment:



Note this statement:


Now, this is wrong in fact and in law...

As stated in plain English on the ASADA website, under the ASADA Act and the NAD scheme, ASADA is authorised to publish information once a decision has been handed down by the relevant tribunal with regard to ASADA’s register of findings. Under the WADA code, ASADA is required to place sanction information on the website for at least one year. One can confirm these things by looking at the ASADA regulations, Schedule 1, Division 4.3, and the WADA code. Thus, while the Register itself does not become a public document, its contents do become public (and are required under the code to become public), and it would be a particularly strange and semantic argument to say that the entry in the register does not become a public document. Martin's representation to the tribunal might well, therefore, be considered inaccurate.

Beyond this, Martin has been responsible for shutting down a thread and threatening forumites regarding the disclosure of XZTT's identity. There are issues with Martin's representations on this forum, specifically as to whether the tribunal's decision not to publish constitutes a suppression order. If it truly did, ASADA would be in contempt when it publishes the name. However, note that under the ASADA regulations, schedule 1, 4.22.1(c)(i), ASADA can publish an entry in the register even when an order under s35 exists, provided that "the review process has been fully determined".

I suggest that if Martin is going to threaten people on this site with contempt of court, he tread very carefully. He should be aware as an advocate that bluster is discouraged by Australian courts.

Those of you who want to know the name will know soon. I will not disclose it here for fear of inflaming the mods.

Is there REALLY an Australian order barring all Australians from talking about an alleged doper? Barring all people on Earth?

Confidentiality is one thing. A gag order is another. But a court order suppressing speech . . .

It looks like a lawyer is bullying people on this forum and it's working.

 

[M Sport]

Is there REALLY an Australian order barring all Australians from talking about an alleged doper? Barring all people on Earth?

There is no suppression order as such. There is an order that the respondent is referred to as XZTT in the tribunal's decision, and there is acknowledgement that an entry in the register is not a public document.

That is quite different from a suppression order.

I'm not going to name him though.

 

[rgmerk]

Is there REALLY an Australian order barring all Australians from talking about an alleged doper? Barring all people on Earth?

Confidentiality is one thing. A gag order is another. But a court order suppressing speech . . .

It looks like a lawyer is bullying people on this forum and it's working.

Yes, in Australia court orders can suppress speech, or at least the speech of Australians.

Of course, the idea that such suppression orders made by an Australian court apply in other countries is doubtful to say the least.

But, that said, I have to say I don't get the eagerness to out this individual. Even if what he is alleged to have done is true we're talking about a very low-level pro who snorted a bit of coke long enough before an event that it wouldn't have affected his performance one iota in the race of concern.

FFS, there are much bigger fish to fry.

 

[Dear Wiggo]

But, that said, I have to say I don't get the eagerness to out this individual. Even if what he is alleged to have done is true we're talking about a very low-level pro who snorted a bit of coke long enough before an event that it wouldn't have affected his performance one iota in the race of concern.

FFS, there are much bigger fish to fry.

Agreed. Same attempted outer was all uppity at Greg for talking about doping and why he didn't do it.

Methinks there's some underlying issues.

 

[babastooey]

I have no idea what the case is about, nor do I really care, but I find the choice of the letters XZTT interesting. Do they stand for anything, or are they just random letters? Why were those letters chosen? Why not, for example, ZZYZX? Or, LMNOP?

 

[DirtyWorks]

I have no idea what the case is about, nor do I really care, but I find the choice of the letters XZTT interesting. Do they stand for anything, or are they just random letters? Why were those letters chosen? Why not, for example, ZZYZX? Or, LMNOP?

Random.

A note to the poster throwing his legal weight around suppressing the identity of the rider. No one bothered to ask somene knowledgeable in how search engine works when coming up with the *brilliant* idea of using short, random string as a placeholder. Spend some time and money with a professional who can explain in 10 words or less why your random string is not doing what you think it is. If it p!sses off the dude throwing his legal weight around knowing nothing about search engines to get themselves into more trouble then my job is done.

It is still cached and there's nothing CN can really do about it other than request the cache be eventually deleted which might or might not happen.

I agree though that this one is minor relative to what's going on in Agile. I hope the rider gets his life together because he just screwed up a very, very privileged lifestyle as an athlete.

I'm thinking of changing my forum account name to this rider's name. I haven't violated any rules in my country by doing that.

 

[Dear Wiggo]

Quick question: someone prepared to use cocaine recreationally - what's the likelihood they would dope to further their career?

Does it go like this:

Cocaine: no probs, I do that. Expensive (?) and potentially addictive and illegal in some countries, but yeah, not a problem.

Doping: illegal in some countries, guaranteed training ROI, guaranteed consistency of results, results = money = better contract = more money for life's luxuries... like cocaine. No way mate, that's wrong, wouldn't touch the stuff.

Thoughts?

 

[Realist]

@"Realist": Will it make you feel better?

You have a dig at someone who says they didn't dope, dissing them about talking about it, then get all kinds of desperate to out a low level pro who has already lost his career.

Where's the source of bitterness from mate? Got something you need to get off your chest?

These examples of your angst are indicative of an underlying issue - so what's up? I am sincerely curious where you're coming from and what's eating you.

Look, I didn't out the rider, I'm not desperate to out the pro. Although, If the court wanted it to be more difficult they could have ordered that the entire decision be confidential. The rider made some bad decisions and they have come back to bite him. Maybe I'm a little angsty, but in this instance it relates to the way this lawyer is behaving on here and in other places. At one moment, the self-appointed champion of the underdog. At the next moment, using bluster to stomp out discussion.

Whether it is a good idea to out the rider? I think it is. It is the normal policy under the WADA code, it is the normal policy of ASADA, and I don't see why this rider qualifies for an exemption. It's not normal that this forum is so forgiving of people's bad choices.

With respect to the poster who put a legal argument with regards to the public interest aspect of 4.22: I understand that the section is cumulative. Note that the sections of schedule 1 considered by Kerr J are enumerated at the top of the judgment and 4.22 is not included. The statement about public interest pertains specifically to the courts decision to use a pseudonym and it is very hard to read it as constituting a direction to ASADA regarding the application of 4.22 (my suggestion here is that neither ASADA nor a court would read it as such).

I agree with M sport's interpretation of the judgment, although I'd be convinced that it was incorrect if Martin would post the actual injunction rather than a reference to it from the judgment, and the injunction contained specific language precluding this interpretation. That is the document with legal standing in this matter. The only order in the judgment regarding identity is that the rider be referred to as XZTT in the public version of the judgment. This is not an order in relation to third parties (eg, forumites). Martin: give us the injunction.

For those of you who say this doesn't apply outside Australia, you are mostly correct IMO (you might still be sued - eg, see Gutnick v Dow Jones for case law in a slightly different domain - but obtaining enforcement would be tough if you do not have assets here). Nonetheless, Cyclingnews has a significant presence in Australia so I appreciate that they might be vulnerable and should be cautious.

Whoever queried whether the choice of the letters XZTT has any specific meaning in relation to the case or the rider, the answer is no.

 

[Realist]

Agreed. Same attempted outer was all uppity at Greg for talking about doping and why he didn't do it.

Methinks there's some underlying issues.

Ha. Look, with respect to Greg, good on him for not doping. Good on me, and good on you too. We can all have our opinions about those who did and those who did not dope. I have raced against guys on the gear too, but I would never put myself out there as having incurred a huge cost because of doping. I think there is a price of entry for saying you were robbed of a career. That is being good enough to have a real, profitable, professional career in the first place. I know several guys who were in that position, some of whom have been very vocal. I also know several guys who were in a position more like Greg's. I don't like bullsh*t self-aggrandisement, which is why I took issue with the tone of Greg's writing. He's no martyr, he didn't suffer so much due to the dope. Maybe I got a little carried away. Maybe it's all to do with my "issues". It's cool though. I'm ok with it. It's funny that you call XZTT a low level pro. Have a look at the salary he was getting (its in the judgment). Once his name comes out, look at his best results. We are talking about a real bike rider here. If he is low level (and I can see how you would make that argument)... look... I don't want to diss people (again) unnecessarily when it isn't the topic of the thread, but try to apply a consistent standard to what you think is low-level and what you think is consequential.

 

[Realist]

Quick question: someone prepared to use cocaine recreationally - what's the likelihood they would dope to further their career?

Does it go like this:

Cocaine: no probs, I do that. Expensive (?) and potentially addictive and illegal in some countries, but yeah, not a problem.

Doping: illegal in some countries, guaranteed training ROI, guaranteed consistency of results, results = money = better contract = more money for life's luxuries... like cocaine. No way mate, that's wrong, wouldn't touch the stuff.

Thoughts?

This seems like a fair line of reasoning to pursue (though I might take a different view). But now you do think this positive has consequences for how we see the guy's career and merits discussion? After you criticise me for criticising Martin for suppressing discussion?

My actual view on this is that athletes are under enough pressure as it is without making a bigger issue of recreational drugs out of competition than they need to be. A large proportion of the adult population uses illicit substances on occasion. Athletes aren't gods and are no different. One can believe recreational drug use is not morally wrong and still value fairness in sport, thus using recreational substances but not doping. Whether XZTT took this view is difficult to know.

How might things be changed? I think metabolites of, eg, THC should only be illegal if they are at a sufficient concentration to impair judgment. I also think stimulants are illegal in competition for good reason (both health and performance related) and an athlete must have cleared them from his or her system to race. A third way on this would be to shorten the suspension for stimulant metabolites found at very low levels, indicative of short term recreational use rather than use for performance. I would actually support that.

 

[alanshearer]

Is this the same Martin Hardie that made a complete *** of himself in the Trent Lowe - Garmin dispute?

 

[BroDeal]

Is this the same Martin Hardie that made a complete *** of himself in the Trent Lowe - Garmin dispute?

The one and only, the one who started with a minor salary dispute, tried to blackmail Slipstream with information that Lowe had visited a doping doctor, had suspicion blowback on his own client, and his bungling eventually led to it being revealed that his client was given the chop because he was fat and lazy. These days when people involved in a dispute find out Hardie is the opposing counsel, they figure they won't need attorneys; Hardie will screw over his own client better than hired lawyers ever could.

So now the staunch anti-doping crusader is fighting to keep the names of dopers secret. I wonder if he is hiring. I hear Joe Papp needs work.

 

[MarkvW]

Is this the same Martin Hardie that made a complete *** of himself in the Trent Lowe - Garmin dispute?

Appears to be.

 

[Realist]

Did the main XZTT thread just get deleted in its entirety? Or am I having problems with the search function? If the former, can this be explained by someone please?

I appreciate that a cautious organisation may want to remove XZTT's identity, but that doesn't require that the entire thread be deleted.

 

[BroDeal]

Did the main XZTT thread just get deleted in its entirety? Or am I having problems with the search function? If the former, can this be explained by someone please?

I appreciate that a cautious organisation may want to remove XZTT's identity, but that doesn't require that the entire thread be deleted.

Did Hardie ever show a court order protecting David Kemp's identity?

 

[Realist]

Did Hardie ever show a court order protecting David Kemp's identity?

Ok that's kinda funny. Are you trying to get this thread deleted too?

The orders in the judgment were quoted, but they can be read narrowly to not pertain to third parties, such as ASADA, or people on this forum. Under the ASADA code, if a final determination has been made in a matter by AAT and that has led to an entry being made in the register (as has been ordered by the AAT in this case), confidentiality orders under s35 of the AAT act do not prevent the rider being named. The judgment refers to an earlier interlocutory order but does not give the language of that order. That is what I was hoping Hardie would show, in case it made reference to third parties. Alternatively he could give authorities that justify reading the language in the judgment as broadly as he argues it should be.

Martin: Threatening forum users with jail is pretty ugly behaviour (and does little for your credibility).

 

[Cloxxki]

Cocaine: no probs, I do that. Expensive (?) and potentially addictive and illegal in some countries, but yeah, not a problem.

Doping: illegal in some countries, guaranteed training ROI, guaranteed consistency of results, results = money = better contract = more money for life's luxuries... like cocaine. No way mate, that's wrong, wouldn't touch the stuff.

Thoughts?

If I'd take my first line of coke right here, right now, I only cheat myself. out of money, against my own ethical standards I (try to) hold myself to.
If I shoot up with a hardcore PED, right here, right now, and only this one time, I betray the credibility of all my past accomplishements in sports. I cheat all the participant in next saturday's race, and all races I will enter after it, also after the PED is no longer tracable, and stopped helping me. All I win in prizes, will hereonewards be stolen. The wealth I build on those results, respect I earn from fellow sportsmen and members of the public, will be entirely false.
Coke is OK, if you are so stupid and have no family to breaks hearts in. Doping is not OK if you ever do a single race after, period.

 

[BroDeal]

Did the main XZTT thread just get deleted in its entirety? Or am I having problems with the search function? If the former, can this be explained by someone please?

I appreciate that a cautious organisation may want to remove XZTT's identity, but that doesn't require that the entire thread be deleted.

Why don't you post to the moderator's thread and ask if that cretin Martin Hardie demanded that the thread be deleted?

 

[Dear Wiggo]

If I'd take my first line of coke right here, right now, I only cheat myself. out of money, against my own ethical standards I (try to) hold myself to.
If I shoot up with a hardcore PED, right here, right now, and only this one time, I betray the credibility of all my past accomplishements in sports. I cheat all the participant in next saturday's race, and all races I will enter after it, also after the PED is no longer tracable, and stopped helping me. All I win in prizes, will hereonewards be stolen. The wealth I build on those results, respect I earn from fellow sportsmen and members of the public, will be entirely false.

Coke is OK, if you are so stupid and have no family to breaks hearts in. Doping is not OK if you ever do a single race after, period.

I'm not asking if Coke is ok or if doping is ok.

I'm asking if it's likely someone is prepared to do Coke, but his value system says no to PEDs?