David Warner would effectively be placed on “parole” from his lifetime leadership ban under the legal solution being considered by Cricket Australia to amend the code of conduct that currently locks the 36-year-old out of captaincy considerations.
CA’s head of integrity, Jacqui Partridge, and chief executive, Nick Hockley, have been taking high-level legal advice from King’s Counsels among the Melbourne law fraternity around the concept of parole and its key role in the wider justice system.
David Warner’s leadership ban is expected to be put to one side if not entirely extinguished.Credit:Getty
The review of the code, approved by the CA board currently chaired by Lachlan Henderson at its October board meeting, is expected to result in the adding of a parole clause for the reconsideration of serious penalties.
At the same time, individuals seeking to have their sanctions reduced would not be able to see them extinguished entirely, but put to one side on the condition of continued good behaviour, as is the case with prisoners paroled after demonstrating rehabilitation.
Completion of the review and amendments to the code are expected to be completed in time for the start of the men’s Big Bash League in December, meaning there would be time for Warner’s request to have his leadership penalty reduced before he is available to play for the Sydney Thunder in January after the end of the Test series against South Africa.
Senior industry sources have told The Age and The Sydney Morning Herald that the long and convoluted process around amending the CA code of conduct to allow for reassessment of Warner’s penalty has been partly created by the way in which the ban was first handed down.
The CA board, chaired in 2018 by David Peever, had been presented with a set of recommended penalties for Warner, Steve Smith and Cameron Bancroft that suspended the trio from playing for varying lengths of time.
The original investigation by CA’s then head of integrity, Iain Roy, had found that Warner instructed a junior player in Bancroft to try to alter the condition of the ball using sandpaper, then advised him how to do it.
After the plot’s exposure Warner had then, according to CA’s investigation, misled the match officials in Cape Town by not revealing his knowledge or involvement, and then failed to “voluntarily report his knowledge of the plan after the match” when interviewed about it by Roy.
The recommendations were made by Roy in conjunction with then chief executive James Sutherland and head of team performance Pat Howard. All had flown to South Africa to handle the fallout from the Newlands scandal.
But it was only after the board began to debate these recommended penalties – at one point discussing the scenario where all three would be banned from playing for life – that the concept of bans from leadership were discussed.
Given the history of Australian cricket’s balance of power between captains, selectors and the board itself, it was highly debatable whether a formal and public leadership ban needed to be put in place anyway.
That is because the choice of candidates to captain Australia are recommended by the selectors but must always be approved by the board and its chair of the day.
Those sorts of private discussions about suitable candidates for leadership had seen plenty of players ruled out of calculations in the past, most famously Shane Warne after his list of off-field misadventures had grown too lengthy for the board to stomach.
Knowing this, Peever and the board did not have to institute any such ban if the objective had been to remove Warner from captaincy discussions.
As it is, the imposition of a lifetime ban has required a rewrite that must balance the uniqueness of Warner’s case with the challenges of enforcing the code on a more commonplace basis – typically by the imposing of fines or shorter suspensions.
“Currently the code states that once a charge and penalty is accepted, there is no avenue for review. The onus would be on the applicant to prove they had undergone genuine reform relevant to the offence they were sanctioned for,” CA stated in October.
“Any review would not revisit the original sanction, other than suspension of a penalty in recognition of genuine reform. The board has requested that the CA head of integrity propose an amendment to the code for consideration.”
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