The Australian Sports Anti-Doping Authority (ASADA) knew there were doubts about legality of its joint investigation with the AFL into Essendon's supplements regime, lawyers for the Bombers say.
The Essendon Football Club and suspended coach James Hird today began their Federal Court challenge to ASADA's investigation into the club's 2012 supplements program.
The challenge comes 18 months after the anti-doping authoritylaunched its investigation, in February 2013.
Essendon and Hird argue that ASADA acted outside its legal powers by conducting a joint investigation with the AFL into the Bombers' 2012 supplements program.
ASADA denies it acted outside its legal powers and will allege it was Essendon and Hird who asked the anti-doping authority to investigate the matter.
In opening submissions, lawyers for Essendon told the court ASADA investigators had raised concerns about the joint investigation.
"As early as 8 February, ASADA knew there were doubts as to the legality of the joint investigation," Neil Young QC told the court.
"One of its own legal officers in an email on that day expressed the view that ASADA cannot have other parties such as the AFL present during investigation interviews.
"But that is what happened."
Mr Young QC told the court ASADA tailored its interim report to suit the AFL's disciplinary needs.
"The AFL then used that report to lay charges against the club and James Hird," he said.
"More than that, the AFL released the charge sheet to the media, how could it do that?"
Hird's barrister, Peter Hanks QC, told the court ASADA went beyond its powers and did what it had not been authorised to do.
"The decision to conduct the investigation exceeded the authority given by the (ASADA) Act and the NAD (National Anti-Doping) scheme," he said.
"And the conduct of the investigation also fell outside what the Act authorised and the NAD scheme authorised.
"If that's right, then the decision to conduct the investigation and its conduct were beyond the power contemplated by the Act ... And therefore, they are both nullities."AFL-ASADA probe 'wholly consistent' with anti-doping Act
ASADA's lawyer, Tom Howe QC, told the court there was nothing in the ASADA Act that prohibited a joint investigation.
"Indeed, the conduct of a joint investigation is wholly consistent with and envisaged by the Act and the scheme," he said.
"ASADA's disclosure of information to the AFL as a sporting administration body, for the purpose of enabling it to consider and take the particular disciplinary action in question here, was entirely authorised.
"Participation by ASADA in the so-called joint investigation was simply a means to an overall end. It was not an end in and of itself."
Mr Howe QC said even if parts of the investigation were found to be unlawful, the findings of its investigation would still stand.
"If the joint investigation was, for any reason, contrary to the ASADA Act, that unlawfulness would only permit the court to make orders in relation to the particular identified aspects of the joint investigation which were unlawful," he told the court.
"It would not permit the court to strike down the whole of ASADA's investigation."