The dual use of evidence in both sporting tribunals and criminal proceedings (doping in sports pt. 4)

Parliament house flag post

The dual use of evidence in both sporting tribunals and criminal proceedings (doping in sports pt. 4)

Posted 11/04/2013 by Jaan Murphy

The previous FlagPost in this series explored what happens once a possible Anti-Doping Rule Violation (ADRV) is detected, and the role of sporting tribunals in determining and sanctioning athletes or support personnel who are found to have committed an ADRV.

As part of that process, ASADA (and also potentially Customs and the AFP) collect a variety of evidence. So when can evidence collected as part of an anti-doping investigation be used in criminal and civil proceedings and vice-versa?

This FlagPost examines the long-standing tradition of the ‘dual use’ of evidence in both civil and criminal proceedings in Australia and the situation with regard to sporting tribunals and criminal proceedings.

Same conduct, two sets of proceedings 

The Australian Institute of Criminology notes ‘Professional behaviour may be investigated by the civil and criminal courts, registration authorities and a variety of consumer-oriented statutory bodies…’. As an example of this, doping may involve:
  • a breach of an anti-doping rule under the relevant Sporting Administration Body (SAB) rules or
  • conduct which constitutes a criminal offence (examples of such criminal offences are examined in the next FlagPost in this series) or
  • a breach of other Commonwealth or state or territory laws (such as the Therapeutic Goods Act 1989 (TGA Act)).
However, it is important to note, that in Australia, the administrative and criminal processes and sanctions related to doping remain separate.
The fact that an athlete is sanctioned by a sporting tribunal for an ADRV does not prevent the commencement of criminal proceedings arising from the evidence used to establish the ADRV (and vice versa). Whilst this might appear unjust, there are many parallels in the Australian legal system.
For example, as R v Peters [2013] VSC 93 demonstrates, medical practitioners can lose their medical licence for misconduct and may also face criminal charges arising from the same incident/conduct which led to:
  • a complaint being lodged, which in turn
  • resulted in a disciplinary tribunal issuing a caution, suspending or deregistering the doctor for professional misconduct.
The same applies to other professions including company directors / office holders, dentists, lawyers, nurses, physiotherapists public servants and teachers.
There are many differences between administrative and criminal proceedings, but an important point is that the sanctions imposed differ substantially between the two systems. Under Australian law, a civil penalty is one imposed by courts or tribunals applying civil rather than criminal court processes. As noted by the Australian Law Reform Commission civil penalty provisions may: similar to a criminal offence (for example, breaches of a director’s duties or publishing misleading material) and may involve the same or similar conduct, and the purpose of imposing a penalty may be to punish the offender, but the procedure by which the offender is sanctioned is based on civil court processes…
The Australian Law Reform Commission also notes that civil penalties can (and frequently do) encompass injunctions, banning orders, licence revocations and orders for reparation and compensation. As such, the penalties imposed by a relevant sporting tribunal for an ADRV (such as suspension from competition, fines etc) are similar in nature to the penalties imposed on members of other professions, and clearly cannot be characterised as criminal.  

The key point here is that for members of the professions discussed above, the same actions or conduct can lead to two proceedings (civil and criminal), and despite possibly sharing evidence, those proceedings remain separate with a different set of penalties, procedures, and most importantly, standards of proof.

Dual use of evidence

ASADA has in place information-sharing relationships with government agencies, law enforcement bodies and sporting administration bodies and can receive information from a variety of sources such as doping control field work, athlete whereabouts, scientific analysis of tests, and tip offs from the general public.

Any evidence uncovered by an ASADA (or police) investigation into doping may be shared and potentially used in sporting tribunal, civil and criminal proceedings, subject to any admissibility rules related to the particular evidence in the relevant proceeding. ASADA conducts investigations into suspected ADRVs in accordance with the Australian Government Investigations Standards (AGIS).

ASADA may choose to refer matters to AFP , which in turn would be responsible for preparing a brief for the Commonwealth Director of Public Prosecutions. Ms Perdikogiannis (the General Manager of Anti-Doping Programs and Legal Services at ASADA) was asked in the recent Senate inquiry into the ASADA Amendment Bill 2013 if ASADA would refer persons suspected of trafficking prohibited substance to a criminal agency. Her response was:
"Where the substances are illicit substances or substances that are covered by the criminal law, then that is something we would do."
This response reflects both the AGIS arrangements discussed above and the powers provided by subparagraphs 71(2)(e), (f), (fc), (fd) and (fe) of the Australian Sports Anti-Doping Authority Act 2006 which allows ASADA to pass information (including personal information as defined in the Privacy Act 1988 collected as part of the anti-doping investigations to various law enforcement agencies. 
However, proposed subsection 13D(2) of the Australian Sports Anti-Doping Authority Amendment Bill 2013 (as amended) proposes to prevent the use of evidence obtained under a disclosure notice issued by ASADA in either criminal proceedings (other than proceedings for providing false or misleading information or documents) or civil proceedings not arising under the Australian Sports Anti-Doping Act 2006 and its regulations.
This protection is narrow in that it only prevents evidence obtained under a disclosure notice from being used in criminal proceedings. Evidence obtained through other investigatory mechanisms would still be able to be used in criminal and civil proceedings. This would arguably provide athletes with a certain (albeit narrow) measure of statutory protection from dual proceedings arising from the same conduct, something that many members of other professions do not currently possess.
In the next FlagPost, we will consider when an ADRV is also a crime in Australia and the sanctions imposed by the criminal justice system for those crimes.

Thank you for your comment. If it does not require moderation, it will appear shortly.
Facebook LinkedIn Twitter Add | Email Print


Flagpost is a blog on current issues of interest to members of the Australian Parliament

Parliamentary Library Logo showing Information Analysis & Advice




refugees asylum immigration parliament climate change Australian foreign policy elections social security welfare reform women welfare policy school education private health insurance Taxation Indigenous Australians Australian Defence Force health financing higher education emissions trading Australian Bureau of Statistics employment people trafficking statistics Middle East illicit drugs gambling health reform federal election 2010 income management Medicare disability Sport United Nations Asia politics criminal law Afghanistan health forced labour transport aid Australian Sports Anti-Doping Agency World Anti-Doping Agency United States federal budget Industrial Relations Carbon Pricing Mechanism dental health OECD Senate Australian Public Service constitution Australian Electoral Commission WADA child protection environment poker machines Australia in the Asian Century steroids National Disability Insurance Scheme detention aged care 43rd Parliament slavery health system multiculturalism ASADA Law Enforcement Australian Federal Police Fair Work Act governance labour force people smuggling debt international relations New Zealand food Australian Crime Commission pharmaceutical benefits scheme leadership electoral reform Census election results UK Parliament Papua New Guinea banking International Women's Day corruption pensions public service reform children's health Aviation federal election 2013 foreign debt gross debt net debt defence capability parliamentary procedure Senators and Members ALP Newstart Parenting Payment Youth Allowance sea farers domestic violence military history by-election political parties High Court skilled migration voting mental health Federal Court terrorist groups science social media Higher Education Loan Program HECS federal state relations accountability youth paid parental leave same sex relationships coal seam gas customs planning doping crime health risks Gonski Review of Funding for Schooling sex slavery Special Rapporteur Northern Territory Emergency Response social policy Productivity United Kingdom firearms public policy Population violence against women China ADRV terrorism transparency research and development welfare ASIO intelligence community Australian Security Intelligence Organisation carbon tax mining employer employee renewable energy regional unemployment fishing European Union family assistance United Nations Security Council Australian economy forestry food labelling vocational education and training Drugs welfare systems Indonesia children Constitutional reform local government codes of conduct terrorist financing homelessness Parliamentary remuneration money laundering Trafficking in Persons Report energy social inclusion human rights paternalism Ireland election timetable citizenship asylum seekers early childhood education Canada Financial sector national security fuel disability employment Tasmania integrity standards NATO Australian Secret Intelligence Service sexual abuse World Trade Organization Australia public health housing affordability bulk billing water health policy Governor-General US economy trade unions export liquefied natural gas foreign bribery question time speaker superannuation public housing expertise climate Intergovernmental Panel on Climate Change Department of Agriculture Fisheries and Forestry regulation Pacific Islands reserved seats new psychoactive substances synthetic drugs UNODC carbon markets animal health middle class welfare Indigenous constitutional recognition of local government referendum consumer laws PISA competition policy royal commission US politics language education baby bonus Leaders of the Opposition citizen engagement policymaking Australia Greens servitude Trafficking Protocol forced marriage rural and regional alcohol entitlements ministries Hung Parliament social citizenship maritime Iran ANZUS regional students school chaplains federal budget 2011-12 salary Medicare Locals primary care Building the Education Revolution family violence government financial advisers financial planners Financial System Inquiry Murray Inquiry China; Economic policy; Southeast Asia; Africa housing Speaker; House of Representatives; Parliament Defence High Court; Indigenous; Indigenous Australians; Native Title ACT Indigenous education Norfolk Island External Territories emissions reduction fund; climate change child care funding refugees immigration asylum procurement Indigenous health e-voting internet voting nsw state elections 44th Parliament 2015 ABS Age Pension Death penalty capital punishment execution Bali nine Bali bombings Trade EU China soft power education Fiji India Disability Support Pension Antarctica Diplomacy by-elections state and territories Bills anti-corruption fraud bribery corporate ownership whistleblower G20 economic reform innovation Members of Parliament Scottish referendum Middle East; national security; terrorism social services Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 online grooming sexual assault of minors ACT Assembly smoking plain packaging tobacco cigarettes Asia; Japan; international relations Work Health and Safety Migration; asylum seekers; regional processing China; United States; international relations fiscal policy Racial Discrimination Act; social policy; human rights; indigenous Australians Foreign policy Southeast Asia Israel Palestine asylum refugees immigration political finance donations foreign aid Economics efficiency human rights; Racial Discrimination Act employment law bullying Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies same-sex marriage disorderly conduct retirement Parliament House standing orders prime ministers sitting days First speech defence budget submarines workers Somalia GDP world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission limitation period universities cancer gene patents genetic testing suspension of standing and sessional orders live exports infant mortality honorary citizen railways disciplinary tribunals standard of proof World Health Organisation arts international students skilled graduate visas temporary employment visas apologies roads Italy national heritage NHMRC nutrition anti-dumping Rent Assistance obesity evidence law sacrament of confession US presidential election international days DFAT UN General Assembly deregulation Regulation Impact Statements administrative law small business Breaker Morant regional engagement social determinants of health abortion Members suspension workplace health and safety marine reserves hearing TAFE Victoria astronomy resources sector YMCA youth parliament Korea rebate Australian Greens presidential nomination Racial Discrimination Act political parties preselection solar hot water Financial Action Taskforce Horn of Africa peacekeeping piracy Great Barrier Reef Stronger futures political financing political education Social Inclusion Board early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin sanctions Norway hospitals republic President Barack Obama Presidential visits qantas counselling Korean peninsula Work Choices biosecurity hendra environmental law federalism federation preselection therapeutic goods Therapeutic Goods Administration plebiscites computer games pests suicide nuclear COAG Ministerial Councils floods ADHD stimulant medication advertising electricity extradition conscience votes poverty preventative health rural health coastal erosion Parliamentary Budget Office work-life balance

Show all
Show less
Back to top