Bills Digest 103 1995-96 Australian Sports Drug Agency Amendment Bill 1996


Numerical Index | Alphabetical Index

WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest was available from 18 June 1996

CONTENTS


Passage History

Date Introduced: 8 May 1996
House: Senate
Portfolio: Sport, Territories and Local Government
Commencement: Sections 1 and 2 commence on Royal Assent. Section 3 and Schedule 1 commence on Proclamation or the first day after 6 months of Royal Assent if the Proclamation is not made within the 6 months.

Purpose

To amend the Australian Sports Drug Agency Act 1990 (Principal Act) to facilitate more effective co-operation between the Australian Sports Drug Agency (ASDA) and international sporting organisations, increase the effectiveness of Australia's anti-doping program and set out clear procedures, rights and obligations to reduce challenges based on legal technicalities in relation to positive tests.

Background

The use of substances to enhance performance in sporting competition was reported as early as the third century BC in the ancient Greek Olympics with athletes using mushrooms or meat. Awareness of drug use in the modern Olympics developed in the 1904 Olympic games in St Louis when a marathon runner had to be revived after winning the marathon. It was subsequently discovered that the athlete had taken strychnine and brandy before the race.

Early international initiatives

The first important anti-doping initiative occurred in 1960 when the Council of Europe (a group of 21 western European countries) passed a resolution against the use of doping substances in sport. Later Olympic Games saw increased drug use and in 1965 the International Olympics Committee (IOC) adopted a resolution IOC Resolution 27 and in 1967 the Medical Commission of the IOC was established. Drug testing was instituted for the first time for the 1968 Olympics in Mexico.(1)

During the 1960s-70s several countries passed national anti-doping legislation and various national sporting bodies undertook domestic anti-doping initiatives. Drug testing programs commenced in Australia in the early 1980s. In June 1988 the First Permanent Conference on Anti-Doping was held in Ottawa. This led to the formation of the International Working Group on Anti-Doping in Sport (now superceded) and the adoption of the International Olympic Charter Against Doping in Sport by the IOC in September 1988 now replaced by the IOC Medical Code. In September 1989 the Council of Europe adopted an Anti-Doping Convention.

ASDA

The Australian Sports Drug Agency (ASDA) was established in 1990 following a recommendation of the Senate Standing Committee on Environment, Recreation and the Arts in its report, Drugs in Sport, May 1990. ASDA's mission is: 'To ensure that Australian athletes are able to compete in sport which is free from banned doping practices'. The vision is: 'To be one of the leading sport agencies in the world and to achieve excellence as a small statutory authority.'

Section 19(1) of the Principal Act specifies the composition of ASDA as a chairperson, deputy chairperson and up to 3 other members appointed on a part-time basis and a chief executive officer as a full-time board member.

In 1993 a report was completed entitled: The Value of Sport, Ethics and the Control of Performance Enhancing Drugs: A Study in the Australian Sports Community and in 1994 ASDA conducted a survey of elite athletes which showed a high level of support for ASDA drug testing programs.

ASDA conducted a review of the Principal Act in July 1994 and in November 1995 a National Drugs in Sport Framework was adopted by Commonwealth, State and Territory Ministers for Sport.

Since its establishment ASDA has conducted 15,000 drug tests. During 1994-95 ASDA conducted drug testing at 22 sporting events and conducted 3,108 tests - 99% of these were drug free and 34 entries were made to the Register of Notifiable Events. Of these tests 2103 were conducted under the Government testing program across 48 sports. The emphasis is on sports considered to be at greater risk of drug use namely - athletics, cycling, powerlifting, rowing, swimming, triathlon and weightlifting. ASDA allocated 10% of Government test funding to international testing activities ie non-Australian athletes competing or training in Australia. There was also an increase in out of competition drug testing and testing on behalf of international sports federations.

ASDA also conducts testing programs with professional sport organisations on a fee basis. These sports include NSW Rugby League, QLD Rugby League, Australian Football League, National Soccer League, National Basketball League and Uncle Toby's Professional Ironman and Ironwomen Super Series.

Samples are analysed by the Australian Sports Drug Testing Laboratory in Sydney which is accredited by the IOC. This Laboratory will analyse drug tests for the Sydney Olympics. ASDA will have a strong role in preparation for and drug testing for the 2000 Olympics and lead up competitions to the Olympics.(2)

ASDA and international initiatives

ASDA may enter into arrangements with foreign anti-doping bodies approved under the Principal Act. ASDA is required to maintain a list of such approved bodies which currently are the:

  • British Council Doping Control Unit (approved 15/7/93)
  • Canadian Centre for Drug-Free Sport (approved 14/12/93)
  • New Zealand Sports Drug Agency (approved 21/1/94)
  • International Doping Tests Management (approved 9/2/96).

Australia is also involved in assisting China develop its drug testing and sports drug agency.

Australia is a party to the following anti-doping agreements:

  • Memorandum of Understanding Between the Governments of Australia, Canada, the United Kingdom, Norway and France Concerning the Reciprocal Development and Enforcement of Measures Against Doping in Sport adopted by the first three Governments on 19 December 1990, by Norway on 15 May 1992 and France on 28 February 1995. This is soon to become known as the International Anti-Doping Arrangement;
  • Memorandum of Understanding Between the Government of Australia and the Government of New Zealand Concerning the Reciprocal Development and Enforcement of Measures Against Doping in Sport signed 17 March 1992;
  • Council of Europe Anti-Doping Convention 1989 ( in October 1994 Australia became its first non-European signatory); and

the following existing and proposed inter-agency agreements:

  • Memorandum of Understanding between the Chinese Olympic Committee Anti-Doping Commission (COCADC) and the Australian Sports Drug Agency (ASDA) 1994; and
  • in progress draft agreement between the Australian Sports Drug Agency (ASDA) and the United States Olympic Committee (USOC).

ASDA advocates an internationally consistent approach to drugs in sport through membership on the IOC/International Federations Prevention and Fight Against Doping Group. In 1995 the IOC Charter Against Doping in Sport was replaced by the IOC Medical Code. ASDA also monitors the activities/decisions of the International Court of Arbitration for Sport which was established in 1983 by the IOC.

Main Provisions

Item 1 inserts definitions of certain terms including 'foreign national sporting organisation' and 'foreign sporting organisation' to facilitate ASDA's increased involvement with such organisation. The term 'national sporting organisation' in relation to a particular sport means an organisation recognised by the International Sporting Federation that has international control over that sport or that is generally recognised as responsible for administering the sport in that other country and in respect of Australia an organisation recognised by the Australian Sports Commission (the Commission) as responsible for administering the sport in Australia.

Definition of competitor

Item 5 inserts a new s.2A defining 'competitor' as:

  • an Australian citizen or permanent resident who competes or has been selected to compete as a representative of Australia in international sporting competition; or who has been assessed by an Australian sporting organisation as having the potential to represent Australia;
  • a person who competes in as a member of a team in sporting competition in or outside Australia at which teams that represent Australia take part or which have members which may represent Australia;
  • a person who competes in international sporting competition held or to be held in Australia or a competition assessed by an Australian national sporting organisation as at being at a certain level;
  • a person who competes in sporting competition and receives or is under an agreement to receive support from the Commonwealth or the Commission;
  • a person assessed by a foreign sporting organisation as having reached a standard of performance to represent the country of his or her citizenship or ordinary residence and in respect of whom ASDA has received a request or is under contract to obtain a sample for testing;
  • persons where an anti-doping agreement requires or permits the obtaining of a sample for testing; and
  • a person whose name is entered on the Register and is ineligible to take part in sporting competition.

Competitors receiving support

Item 6 repeals s.3 and substitutes a new s.3 which defines persons receiving government support for the purposes of the Principal Act. A person receives support if he or she for the purposes sporting or training activities:

  • receives funding from;
  • uses facilities wholly or partly funded by;
  • or is a member or associated with a sporting organisation which receives funding

from a government or government agency. Government is defined as either the Commonwealth government, a State or Territory government and agency means the Commonwealth Sports Commission and any sport academy or institution of a State or Territory.

Objects of ASDA

Item 7 substitutes a new s.8 which refines the objects of ASDA to:

  • deter use of scheduled drugs or doping methods in sport;
  • encourage development of education programs for sport communities about drugs in sport;
  • advocate the international adoption of consistent and effective anti-doping programs; and
  • co-ordinate development of consistent and effective national response to drugs in sport.

Item 8 repeals paragraphs 9(1)(c)-(q) and substitutes new paragraphs 9(1)(c)-(l) to reflect ASDA functions in accord with the refined ASDA objectives and strategy.

Item 10 repeals s.9(3) and substitutes a new ss.9(3) and (3A) to provide that ASDA may maintain a list of competitors containing particulars such as addresses, date of birth, sporting activities, membership of clubs, teams, scholarships, training, professional, amateur or representative status, contacts for overseas competitions and other particulars necessary to enable ASDA to perform its functions.

Item 11 changes the heading of Part 3 from 'Register of Notifiable Events' to - 'Requesting, Collecting and Testing of Samples by Agency'. Item 13 repeals ss.12-17C and substitutes ss.12-17ZB. Proposed s.12 authorises ASDA to request a competitor to provide a sample in accordance with regulations. Proposed s.12(3) allows for the regulations to provide that substantial compliance with a request for a sample is sufficient.

Procedures for provision of sample

Proposed s.13 lists matters which must be provided for in the regulations including:

  • informing the competitor that he or she is entitled to have a representative oversee the collection of the sample, excluding the actual passing except where the competitor has a disability and may require assistance;
  • the collection and testing procedure;
  • the competitor's rights under the regulations;
  • possible consequences of failure to comply with a request to provide a sample;

and of returning a positive result;

  • the classes of persons or organisations which are required to be notified of the particulars of an entry in the Register;
  • the competitor's right to make submissions under proposed ss.17 and 17L; and
  • the classes of persons and organisations to whom a negative test result may be disclosed.

The regulations may provide that strict compliance is not required but substantial compliance is sufficient.

Where ASDA believes a competitor is likely to fail to comply with a request to provide a sample and ASDA thinks that the relevant national sporting organisation should have an opportunity to persuade the competitor to comply ASDA may tell the organisation of the competitor's failure to comply. If the competitor claims to have retired from taking part in sporting competition ASDA must check the date of notification of retirement (proposed s.14).

Notice to Australian citizen/resident who has failed to provide a sample

Where an Australian citizen, permanent resident or temporarily resident non-Australian fails to provide a sample proposed s.17 requires ASDA to give the competitor as soon as practicable a written notice stating non-compliance. The notice must inform the competitor that he or she may, within 7 days of receiving the notice, make a written submission to ASDA that the competitor had reasonable cause for non-compliance; or waive his or her right to make a submission.

If ASDA considers the competitor may compete in an international sporting competition or a selection trial before the expiry of the 7 days ASDA may specify a shorter time for a response from the competitor.

Proposed s.17A requires ASDA to decide whether the competitor had reasonable cause for failing to comply with a request. ASDA must take into account any submission from the competitor. Proposed s.17B requires ASDA to provide the competitor with written notice of the decision and if it decides the competitor did not have reasonable cause must inform the competitor of the reasons for the decision.

Failure to provide sample

Proposed s.17D provides that in the case of a failure by a non Australian citizen (other than a temporarily resident non Australian) to comply with a request to provide a sample ASDA must inform the relevant International Sporting Federation of the failure to comply. If the Federation requests certain action ASDA may comply with the request as far as it is capable.

Return of negative test result

If the competitor is an Australian citizen, a permanent resident or a temporarily resident non-Australian ASDA may disclose a negative test result to:- the competitor, or guardian of the competitor where appropriate, relevant national sporting organisation and International Sporting Federation. If the competitor is a non-Australian it may disclose particulars to the competitor and any appropriate foreign anti-doping body (proposed s.17H).

Return of positive test

Where a positive test is returned by a competitor who is an Australian citizen, permanent resident or temporarily resident non-Australian ASDA must give the competitor written notification of the result. It must also inform the competitor he or she has 7 days (or shorter period where the competitor is likely to compete in international sporting competition or selection trial) to submit relevant information or evidence or notify waiver of the right to make a submission (proposed s.17L).

Determination of validity of test /notification

ASDA must decide whether a positive test is valid, after due regard to a submission made by or on behalf of the competitor. It may decide the test is invalid only if it is satisfied that the:

  • sealing procedures had not been complied with;
  • sample was not tested by an accredited laboratory; or
  • sample was tampered with by an unauthorised person (proposed s.17M).

Proposed s.17N requires ASDA to give the competition written notice after taking a decision on the validity of a written notice. If the decision is that the test is valid ASDA must include in the notice reasons for the decision and inform the competitor that he or she may apply for review of the decision by the AAT subject to the Administrative Appeals Tribunal Act 1975.

In the case of a positive test result for a non-Australian competitor (except a temporarily resident competitor) ASDA must notify the relevant International Sporting Federation. If the Federation requests ASDA to take further action it may as far as possible (proposed s.17Q).

How samples are to be dealt with

If a competitor who is an Australian citizen, permanent resident or temporarily resident non Australian fails to comply with a request to provide a sample and ASDA decides there was no reasonable cause for non compliance ASDA must enter the competitor's name on the Register (proposed s.17R). If the final testing sample returns a positive test and ASDA decides the test is valid ASDA must enter the name of the competitor on the Register (proposed s.17S). ASDA will be required to give notice to the competitor, guardian where appropriate, the Commission or other institution from which the competitor receives support and the relevant national sporting organisations (proposed s.17T).

Review of decision

A competitor may apply to the Administrative Appeals Tribunal (AAT) for review of a reviewable decision. If the AAT sets aside a reviewable decision ASDA must remove any entry made on the Register as a result of the decision (proposed ss. 17V and 17W).

Testing on behalf of a foreign sporting organisation

Proposed s.17X provides that ASDA may enter into contracts with a foreign sporting organisation to request, collect, transport and test samples. ASDA may notify the relevant foreign sporting organisation of any matter including - failure to provide a sample or complete required forms, any misrepresentation or interference with the sample and test results. ASDA may also notify other specified parties.

Testing by a foreign sporting organisation

Proposed s.17ZB provides that if a competitor who is an Australian citizen or permanent resident refuses to provide a sample at the request of a foreign sporting organisation or misrepresents a sample as his or her sample or where a test is positive ASDA may disclose the information to that organisation and persons specified in s.17T(2).

Proposed s.67B provides that if ASDA believes that a person other than the competitor has provided the sample or has interfered with the provision, collection or testing of the sample ASDA may notify the relevant national sporting organisation.

Endnotes

(1) Tricker, R, Cook, DL Athletes At Risk: Drugs and Sport, Wm. C. Brown Publishers, 1990, pp.17-18.

(2) Australian Sports Drug Agency, Annual Report 1994-95.

Contact Officer and Copyright Details

Ian Ireland Ph. 06 277 2438
14 June 1996
Bills Digest Service
Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

PRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1323-9032
© Commonwealth of Australia 1996

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1996.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 24 June 1996

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