Bills Digest No. 97 2004–05
Australian Sports Commission Amendment Bill
2004
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Australian Sports Commission Amendment Bill
2004
Date Introduced: 8 December 2004
House: The
Senate
Portfolio: Arts and Sport
Commencement: On the day of Royal Assent
Purpose
The Bill proposes to broaden the
circumstances in which the Australian Sports Commission, and
through it, sporting organisations, can obtain personal information
held by the Australian Customs Service.
Background
Basis of
policy commitment
Under the Customs Administration Act 1985, information
obtained or held by the Australian Customs Service (Customs) that
relates to an identifiable individual (known as personal
information) must not be disclosed to others, except under special
circumstances. In 1999, the Australian Sports Commission Act
1989 was amended to provide that such information could be
disclosed by Customs to the Australian Sports Commission (ASC) in
relation to investigations of alleged breaches of anti-doping
rules.(1) The ASC, in turn, may pass the information on
to the sports organisations that administer the sport of the
relevant competitor and are responsible for disciplinary action
over doping breaches. Under this arrangement, the discovery of
drugs and drug paraphernalia by Customs through border screening
and postal deliveries can be used in the campaign to stop the use
of performance-enhancing drugs in sport.
The Minister for Justice and Customs in his Second Reading
Speech, indicated that the impetus for this Bill is a belief that
the 1999 amendments were inadequate.(2) The Minister
told Parliament that legal opinion obtained earlier this year in
the context of doping allegations against a number of cyclists now
indicates that the practical use of these provisions is more
restrictive than first thought .(3)
While the details of that legal advice are not provided, the
Minister suggests that the primary issue has been the restrictive
rules governing the circumstances in which the Executive Director
of the ASC can disclose personal information to sporting
organisations.(4) Currently, before such disclosure, the
Executive Director must be satisfied that the sporting organisation
s anti-doping policy is likely to have been breached and
that the information is likely to assist the organisation
in determining whether to take action. The standard of likelihood
limits the Executive Director s capacity to disclose information
where the information does not suggest a likely breach of itself,
but may only give rise to a strong suspicion of a breach. As the
Minister suggests, this might occur where Customs has intercepted
drugs that have been mailed to a competitor.(5) In
addition, the requirement that the information be given for the
purposes of determining what action to take could preclude the
organisation using the information to conduct further
investigations.
Given these restrictions, it appears that the 1999 amendments
were drafted in expectation that the ASC would conduct
investigations as to possible breaches and then pass the
information to the relevant sporting organisation for disciplinary
action. The changes proposed by the current Bill relax these
restrictions by broadening the circumstances in which information
can be passed from the ASC to sporting organisations. In doing so,
it might be expected that sporting organisations will take more
direct responsibility for investigation as well as enforcement.
However, the Bill goes further than remedying this perceived
problem. It also broadens the circumstances in which Customs can
disclose information to the ASC. This change is detailed in the
Main Provisions section below. The rationale for this change is not
clear and does not seem to have been provided in the Second Reading
Speech.
Main Provisions
Under the Customs Administration Act, personal information held
by Customs may only be disclosed in certain circumstances. The
circumstances include disclosure to the Executive Director of the
ASC, but only for the purpose of determining whether an anti-doping
policy is likely to have been breached .(6) In the terms
of the Customs Administration Act, this is referred to as a
permissible purpose .(7)
Items 1 and 2 propose amendments to alter this
test, so that the Executive Director may receive information if the
information should be disclosed for permitted anti-doping
purposes . Permitted anti-doping purposes would
include:
-
investigating whether an anti-doping policy has been
breached
-
determining whether to take action under an anti-doping
policy
-
determining what action to take under an anti-doping policy,
and
-
taking or participating in any proceedings relating to action
that has been taken under an anti-doping policy [proposed
section 51AA].
[Note: An anti doping policy is defined
in section 51A as any current written policy of the ASC or a
sporting organisation in respect of performance-enhancing drugs or
doping methods, which include methods to conceal the use of
performance-enhancing drugs.]
This change would significantly broaden the purposes for which
personal information can be obtained and used by the ASC. Although
currently it is not necessary to show that there has been a breach
of policy or even that a breach has been likely, the CEO of Customs
(or his or her delegate) must be satisfied that the information
will be used to determine whether or not a breach may have
occurred.
Under the proposed change, the information would not need to be
connected to a breach or suspected breach. It would be enough that
the information is connected to action taken under an anti-doping
policy of a sporting organisation.
After the ASC has received personal information from Customs,
the ASC can pass that information on to a sporting organisation to
enable that organisation to take action, such as disciplinary
action, if a competitor has breached anti-doping rules.
Under the current law, the Executive Director of the ASC may not
pass the information on to sporting organisations, unless he or she
is satisfied that it is likely that an anti-doping policy
of the organisation has been breached and that the information
would assist the sporting organisation in determining what action
it might take (section 51E). The Executive Director must also
receive a written undertaking from the organisation that the
information will only be used to determine whether to take action
in accordance with its anti-doping policy, and that the information
will not be disclosed to any other person.
Item 6 repeals and replaces section
51E. Proposed section 51E would allow the
Executive Director to authorise the disclosure of the information
to sporting organisations when he or she is satisfied that the
information should be disclosed for a permitted anti-doping
purpose, as defined above. Accordingly, the test for
determining whether the information should be disclosed to the
sporting organisation is as broad as that for whether the
information should be disclosed to the ASC by Customs.
Although the broader test means that it would be easier for
sporting organisations to receive personal information, the Bill
also introduces certain protections for the person to whom the
information relates. First, proposed subsection
51E(1) provides that the information can only be disclosed
to the sporting organisation once the organisation has provided a
written undertaking that the information will only be used for the
permitted anti-doping purpose. The undertaking must also include a
commitment to take reasonable steps to ensure that the information
will not be used in a way that would unfairly prejudice the person
to whom it relates.
Second, proposed subsection 51E(2) introduces a
right for the person to whom the information relates to be given
notice of the proposed disclosure. The person would then have
a right to make a written submission to the Executive Director
within a certain period (14 days by default, unless the Executive
Director determines that a shorter period is appropriate). The
information could not be disclosed to the sporting organisation
until after that period has elapsed or the Executive Director has
considered the person s submission.
Item 6 also inserts proposed section
51DA. This section would allow the ASC to disclose
personal information to people who are not ASC officials or
sporting organisations if the disclosure would assist the ASC in
taking action under its anti-doping policy or participating in
court proceedings taken under its anti-doping policy. There is no
current provision that would allow this.
Concluding Comments
The
breadth of the permitted anti-doping purposes
Central to the Bill is the new definition of permitted
anti-doping purposes which would govern all anti-doping related
uses of personal information from Customs. It could be argued that
this definition is broader than necessary to achieve the Bill s
stated rationale.
In particular, the use of the term action in relation to
determining whether to take action, determining what action to take
and participating in proceedings arising from action taken would
seem to cover a very broad range of circumstances. Certainly, the
range of circumstances covered by the Bill is much broader than
that covered by the current requirement that the use of the
information has to have some connection to a (possible) breach of
anti-doping rules. Action could include such things as a decision
to ban a substance. That is, under the proposed Bill, the ASC and a
sporting organisation could potentially learn from Customs which
athletes are importing a certain substance before making a decision
as to whether or not it should be banned from the sport.
Further, as anti-doping policies are developed by the ASC and
sporting organisations, these organisations could theoretically
expand their own permitted purposes for the use of personal
information by simply re-writing their policies. Parliament has no
oversight of these policies.
If the goal of the legislation is to enable the ASC to disclose
information to sporting organisations for the purposes of
investigation, without having to undertake its own preliminary
investigation, this could have been achieved with much less
breadth. For example, existing paragraph 51E(1)(a) could have been
amended to allow the Executive Director to disclose information to
sports organisations where there is a reasonable suspicion (rather
than a likelihood) that an anti-doping policy has been breached.
Along with this, amendments could have been drafted to ensure that
investigation of suspected or alleged breaches was a permitted
purpose for sports organisations.
Parliament might note that in many cases, the relevant personal
information could well relate to the importation of legal
substances. The Customs Administration Act recognises a right to
privacy in relation to the importing of legal substances. The 1999
amendments created an exception to this right, in recognition of
the Government s role in assisting the campaign against drugs in
sport. By removing the need to show that the information would be
used in connection with investigating or taking action against a
possible breach of anti-doping rules, this Bill would significantly
expand this exception.
Given the possible loss of reputation to a competitor who is
wrongly accused of doping, competitors are likely to value highly
the right to privacy in relation to substances and objects that
they might import. Accordingly, Parliament might wish to consider
whether the proposed Bill strikes the right balance between
protecting this right to privacy and helping sports organisations
to police their anti-doping rules.
-
Australian Sports Commission Amendment Act 1999.
-
Senator Ellison, Minister for Justice and Customs, Second
Reading Speech: Australian Sports Commission Amendment Bill 2004 ,
Senate, Debates, 8 December 2004, p. 2.
-
ibid.
-
ibid.
-
ibid.
-
Section 51C, Australian Sports Commission Act. In addition, the
information must relate to the importation or attempted importation
of a sports substance into Australia and at least one of the
following criteria is satisfied: (i) the importation or attempted
importation contravenes a law of the Commonwealth, (ii) there are
reasonable grounds to suspect that a competitor is responsible for
the importation or (iii) there are reasonable grounds to suspect
that the substance is for the use of one or more competitors
(section 51B, Australian Sports Commission Act).
-
Subsection 16(8).
Jacob Varghese
4 February 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
IRS staff are available to discuss the paper's
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ISSN 1328-8091
© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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