WARNING:
This Digest is prepared for debate. It reflects the legislation as
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This Digest was available from 18 June 1996
CONTENTS
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.
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.
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Sport (now superceded) and the adoption of the International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.
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.
(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.
Ian Ireland Ph. 06 277 2438
14 June 1996
Bills Digest Service
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sources should be consulted to determine whether the Bill has been
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ISSN 1323-9032
© Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library,
1996.
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Last updated: 24 June 1996
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