Is doping in sport a crime? (doping in sports pt. 5)

Posted 24/04/2013 by Jaan Murphy

The previous FlagPost in this series explored the dual use of evidence in both sports tribunals and criminal proceedings.

Whilst it is commonly understood that doping is prohibited in sport, is it also a criminal offence?



This FlagPost examines the circumstances in which an Anti-Doping Rule Violation (ADRV) is also a crime in Australia and the sanctions imposed by the criminal justice system for those offences.  

The Criminal Justice System

Unlike a number of other countries, Australia does not have any sports-specific legislation creating criminal offences specifically relating to doping in sport. However, the Commonwealth, states and territories have all enacted legislation which criminalises certain actions or conduct which also constitute an ADRV. Primarily these are centred on:
 
  • trafficking of substances that appear on the World Anti-Doping Agency (WADA) World Anti-Doping Code Prohibited List (List)
  • the use or administration of a substance on the List without appropriate medical or therapeutic justification
  • the possession of a substance on the List without lawful justification (e.g. for medical reasons) or
  • aiding, abetting, or concealing any of the above.

 
Selected examples of applicable Australian criminal laws

In Australia, the criminal laws that potentially cover conduct associated with an ADRV commonly relate to trafficking, possession and importation of substances that appear on the List.  

Trafficking, possession and importation offences

By way of example, Part 9.1 of the Commonwealth Criminal Code Act 1995 criminalises both the trafficking and possession of certain prohibited substances, a small number of which are on the List. Depending on the amount of the substance trafficked or possessed, the offence is punishable by up to life imprisonment and a fine of up to 7,500 penalty units ($1,275,000). 
Under Part XIII of the Customs Act 1901, Regulation 5 and Schedule 7A of Customs (Prohibited Imports) Regulations 1956, the importation of a number of substances on the List (including EPO and Human Growth Hormone) is a criminal offence punishable by up to five years imprisonment and a fine of up to 1,000 penalty units ($170,000).
 

Therapeutic goods offences

 
The Therapeutic Goods Act 1989 (TG Act) creates a number of offences relating to therapeutic goods, many of which are on the List. For example, the importation of therapeutic goods into Australia without the appropriate permit is a criminal offence punishable by up to five years imprisonment and a fine of up to 4,000 penalty units ($680,000). A large number of the prohibited substances on the List are classified as therapeutic goods under the TG Act.   
 

State and territory laws

 
The Commonwealth is not the only jurisdiction to criminalise the possession or trafficking of substances and methods on the List. As an example, the table below highlights the relevant penalties for the possession, use, administration or trafficking of steroids and similar substances. 


Jurisdiction
Relevant Act
Notes
Penalties

ACT
Criminalises the possession, trafficking, use and administration of steroids. Schedule 1 lists a large number of Anabolic Steroids, most of which appear on the List.
Imprisonment for 5 years and/or a fine of up to 500 penalty units ($55,000)
NSW
Criminalises the possession and trafficking of steroids.  Links key definitions to the TG Act.
Imprisonment for 2 years and/or a fine of up to 20 penalty units ($2,200)
QLD
Criminalises the possession and trafficking of steroids.  Links key definitions to the Drugs Misuse Regulation 1987 which includes “any other anabolic and androgenic steroidal agent”.
Imprisonment for 20 years for trafficking and possession.
VIC
Criminalises the possession and trafficking of steroids.  Schedule 11 includes a large number of steroids, many of which are on the List.
For trafficking:  imprisonment for 15 years.  For possession: 5 years imprisonment and/or a fine of up to 400 penalty units ($56,336)
SA
Criminalises the trafficking, possession and use of steroids.  Links key definitions to the Uniform Poisons Standard which includes steroids, and incorporates an extensive list of substances, many of which are on the List.
For trafficking: imprisonment for up to 10 years and/or a fine of $50,000.  For possession, administration or supply: 2 years imprisonment and/or a fine of $2,000.
WA
Criminalises the trafficking, possession and use of steroids.  Links key definitions to the Uniform Poisons Standard which includes steroids, and incorporates an extensive list of substances, many of which are on the List.
For trafficking: imprisonment for up to 25 years and/or a fine of $100,000.  For possession: 2 years imprisonment and/or a fine of $2,000
NT
Criminalises the trafficking, possession and use of steroids.  Links key definitions to the Uniform Poisons Standard which includes steroids, and incorporates an extensive list of substances, many of which are on the List.
For trafficking and possession: imprisonment for 5 years and/or a fine of 500 penalty units ($70,500).
For use: imprisonment for 2 years and/or a fine of 500 penalty units ($70,500).
TAS
Criminalises the trafficking, possession, use and administration of steroids.
For trafficking: imprisonment for 21 years.  For possession, use or administration: 2 years imprisonment and/or a fine of 50 penalty units ($6,500).

Other criminal sanctions


It has also been suggested by some commentators that as a professional athlete’s ability to earn a living is based on their physical or athletic ability, the use of performance enhancing drugs (PEDS) may be regarded as a dishonest act. The offence of fraud is commonly defined in various Commonwealth and state and territory laws as where a person a financial advantage, property, services, a benefit, or an advantage, dishonestly or by deceit. Hence it is argued that the use of PEDS by an athlete to secure a scholarship, contract or other benefit could be prosecuted as fraud, attracting terms of imprisonment.

Finally, it has been noted that athletes and teams engaged in the use of prohibited substances have an unfair advantage, which can be exploited on sports betting markets by persons with inside information. A previous FlagPost explored the issues surrounding betting, match fixing and corruption in sport. The next FlagPost in this series looks at countries that have criminalised doping in sport.

 

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