Bills Digest no. 79 2005–06
Australian Sports Anti-Doping Authority Bill
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
Contact Officer & Copyright Details
Sports Anti-Doping Authority Bill 2005
Sports Anti-Doping Authority (Consequential and Transitional
Provisions) Bill 2005
House: House of Representatives
Portfolio: Arts and Sport
Sections 3-79 of the
Australian Sports Anti-Doping Authority Bill 2005 (the ASADA
Bill) commence on a day to be fixed by Proclamation or, if this
does not occur within six months of Royal Assent, on the first day
after that period.
Schedules 1 and 2 of
the Australian Sports Anti-Doping Authority (Consequential and
Transitional Provisions Bill 2005 (the Transitional Bill) commence
at the same time section 20 of the ASADA Bill (which establishes
the Australian Sports Anti-Doping Authority) commences.
The purpose of the Australian
Sports Anti-Doping Authority Bill 2005 (the ASADA Bill) is to
establish a new organisation, the Australian Sports Anti-Doping
Authority (the ASADA), to lead the Government s policy measures
against drugs in sport. The creation of the ASADA was a key
recommendation of the 2004 Anderson inquiry into the use of drugs
by Australia s track cycling team (see below).
The ASADA will take over the functions currently performed by
the Australian Sports Drug Agency (the ASDA). The ASADA will also
carry out functions in relation to the investigation of doping
allegations and the presentation of anti-doping violation cases at
hearings before either the Court of Arbitration for
Sport or other sports tribunals.(1)
The ASADA will carry out these functions within the context of
the National Anti-Doping Scheme (or NAD Scheme), which is also
established by the ASADA Bill.
The NAD Scheme implements Australia s international obligations
in relation to anti-doping violations in sport, by setting out the
anti-doping rules applicable to athletes and support persons and
authorising the ASADA to perform sample collection, sample testing,
investigation of anti-doping violations and to present the findings
of those investigations to sporting tribunals.
The Copenhagen Declaration on
Doping in Sport
Concurrently with the release of the Code, 80 States (including
Australia), and a variety of other organisations such as the
International Olympic Committee and the International Paralympic
Committee, signed the Copenhagen
Declaration on Doping in Sport (Copenhagen Declaration).
The Copenhagen Declaration is a non-binding agreement, which by
becoming a signatory to, governments can demonstrate an intention
to recognise, support and implement the Code. The Copenhagen
Declaration also commits signatories to developing a legally
In October 2005 the United Nations Education, Science and
Cultural Organisation (UNESCO) adopted the
International Convention against Doping in Sport (the UNESCO
Convention) a binding agreement to implement the
Code.(8) Australia is a signatory to the UNESCO
Joint Standing Committee on Treaties has recommended that
Australia take binding treaty action in relation to the UNESCO
The Government s 2004 election policy,
Building Australian Communities through Sport, sets out a
continued commitment to drug-free sport, through:
membership on the board, executive and subcommittees of WADA
contribution to the global harmonisation of anti-doping policies
and practices, and
a requirement on sporting organisations to implement anti doping
policies and practices consistent with the Code, as a condition for
Federal Government funding.
Pursuant to this last point, in
July 2005, the Australian Football League (AFL) was the last
major sporting code in Australia to become Code
Following the signing of the Code and the Copenhagen
Declaration, the ASDA Act was amended to allow ASDA to carry out
particular anti-doping functions in order that Australia would
comply with the Code. See the
Explanatory Memorandum and the
Bills Digest for the Australian Sports Drug Agency
Amendment Bill 2004.(11)
However, those amendments did not allow ASDA to examine all
anti-doping rule violations listed in the Code. Specifically, ASDA
has the power to examine anti-doping violations in relation to:
the presence of an prohibited substance or its metabolites or
markers in an athlete s bodily specimen
refusing or failing without compelling justification to
submit to sample collection after notification as authorised in an
applicable anti-doping rule or otherwise evading sample
violation of applicable requirements regarding athlete
availability for out-of-competition testing including failure to
provide required whereabouts information and missed tests which are
declared based on reasonable rules, and
tampering or attempting to tamper with any part of doping
Other anti-doping violations, such as possession of, and
trafficking in a prohibited substance or method, are dealt with on
a case-by-case basis, and normally involve an investigation by an
independent investigator appointed by the sporting organisation
concerned.(12) Therefore, the ASDA s functions are
focussed on the testing, education and advocacy as opposed to the
investigation of violations.
There has been criticism both in
Parliament and the media
over the way in which sports organisations and the Australian
Sports Commission (also known as the ASC) have handled
investigations into allegations of anti-doping
The investigation which led to the Government considering an
independent investigation body (and which received extensive media
coverage in the lead up to the 2004 Athens Olympics) was the
inquiry into alleged anti-doping violations by the Australian
In December 2003 a plastic bucket of syringes, Vitamin B and C
vials, Equigen vials and other injecting material and an empty box
of Testicomp were found in the room of cyclist Mark French at the
Australian Institute of Sport (AIS) facility in Del Monte in South
Australia.(15) Mr French did not dispute that he owned
most of the material in the plastic bucket and the Testicomp
A preliminary internal investigation was conducted by a senior
manager within the Australian Institute of Sport. During the course
of that investigation Mr French made allegations of a clandestine
drug-culture amongst (unnamed) elite cyclists, and Mr French s
father made allegations that the AIS turned a blind eye to the
drugs culture at the AIS facility at Del Monte.
Following this preliminary investigation, the Australian Sports
Commission and Cycling Australia instigated an independent
investigation of the incident by Mr Justin Stanwix on 19 December
2003.(16) Again, Mr French made allegations of drug use
by other unnamed members of the AIS cycling team, and that there
was a culture of permissiveness in respect of doping at the Del
As a result of Mr Stanwix s investigation, the Australian Sports
Commission and Cycling Australia sought a determination from the
Court of Arbitration for Sport as to whether Mr French had violated
the Australian Sports Commission s and Cycling Australia s
anti-doping policies. The proceedings were listed as a non urgent
matter before the Court.
In May 2004, in evidence to the Court, Mr French named 5 other
cyclists who allegedly participated in group injecting sessions at
the Del Monte facility.
The Court found Mr French guilty of anti-doping offences. Mr
French was banned from competition for 2 years and fined $1000.
On 18 June 2004, Senator Faulkner raised the matter in
Parliament criticising the conduct of the investigations and
calling for the establishment of an investigation and determination
process independent of the Australian Sports Commission. Senator
Faulkner also raised concerns that no further investigation had
been carried out in relation to the 5 cyclists named by Mr French,
particularly in light of the fact that 2 of the cyclists named were
considered potential Olympic gold medallists at the upcoming Athens
The Anderson Inquiry
The Australian Sports Commission and Cycling Australia appointed
the Honourable Robert Anderson, QC, to investigate
Mr French s allegations of doping within the AIS track sprint
cycling program and to assess the effectiveness of the actions by
Cycling Australia and the Australian Sports Commission following
the discovery of the injecting material in December 2003.
In his Second Stage
Report, Justice Anderson made the following
I must say that I believe the preliminary [internal]
investigation tried to do too much, having regard for its
objective, which was only to see if there was sufficient credible
evidence to suspend Mr French s AIS scholarship and to warrant a
formal independent investigation
Mr Stanwick conducted his investigation with reasonable
expedition especially bearing in mind that [the Stanwick]
investigation straddled the Christmas New Year period
I do not think it was appropriate to classify the matter [before
the Court of Arbitration for Sport] as not urgent This was a
serious doping case and the suspension of his AIS scholarship
entitlements signified that Mr French had a case to answer;
furthermore there was a least some reason to believe that Mr French
s allegations involving other cyclists might eventually impact on
Olympic selection which was only a few months away and
On balance and with the benefit of hindsight I think Cycling
Australia and the Australian Sports Commission should have
instructed their solicitors to proceed with the case more quickly
or urgently and the solicitors should have done so. Whether the
Court of Arbitration for Sport could have given the case more
urgent treatment I do not know, but the attempt should have been
One of Justice Anderson s key recommendations
with respect to the investigation of doping offences in Australian
that there should be a body which is quite
independent of the AIS and of the Australian Sports Commission and
of the sporting bodies themselves with the power and duty to
investigate suspected infractions such as substance abuse and to
carry the prosecution of persons against whom evidence is
At the time of tabling of the Second Stage Inquiry of the
Anderson Report the Minister for Sport and the Arts announced that
the Government was releasing a
discussion paper for public comment on a new Sports Doping
That discussion paper noted that recent cases had highlighted a
need for an independent and transparent process to investigate
doping in sport .
The paper noted the following problems with the current sport
runs sport model of investigating allegations of anti-doping
violations, and reasons why the Australian Government should be
involved in investigations of anti-doping violations:
some sporting organisations may not be in a position to obtain
legal expertise to assist them investigating and preparing a case
there is a risk that individuals or organisations may be sued by
people being investigated
there is the potential for real or perceived conflicts of
interest where sports organisations investigate possible breaches
of codes and allegations of wrongdoing, and(21)
because of the turnover of office holders in sporting
organisations, it may be difficult for a particular sport to build
up expertise in handling anti-doping violation matters.
The discussion paper proposed a model
where a Sport Doping Investigation Board would investigate those
anti-doping violations which are not covered by the ASDA and also
take the cases to hearing (whether in the Court of Arbitration in
Sport, or other sporting tribunal). The Board would not be
responsible for issuing anti-doping infraction notices or imposing
penalties, but would notify the relevant sporting organisations of
the outcome of its investigations.
The model for the Sport Doping Investigation Board presented in
the discussion paper is in part reflected in the model for the
ASADA proposed by the current Bill. However, it appears that at the
time of the release of the discussion paper, the Government
intended that ASDA would remain in existence performing its current
functions in relation to four of the anti-doping violations listed
in the Code.
The discussion paper posed a series of questions, seeking
responses from sporting organisations and individuals on certain
aspects of the proposed model.
The responses to the discussion paper, while generally in favour
of establishing an independent body to investigate and prosecute
anti-doping violations, also raised the following concerns:
whether the role should be carried out by a body such as the
Board, or whether an individual acting as an Ombudsman was a more
appropriate means of carrying out the role(22)
the involvement of the investigative body in prosecution of
the need for an equivalently funded support/ defence
organisation for athletes facing investigation and prosecution for
the potential overlap in roles between ASDA and the
the level of complexity involved in having a Board cover Olympic
and non-Olympic sports, which have different tribunal
Clause 4 sets out the
definitions to be used in interpreting the ASADA Bill. In addition
to the new definitions of athlete and support person discussed
above, there are other changes in definitions for words which are
currently used in the ASDA Act. These changes include expanded
definitions of doping method and
drug to include methods and substances
prohibited by the Code and the UNESCO Convention (if ratified by
Clause 9 provides that regulations must be made
for a National Anti-Doping Scheme (or NAD Scheme defined in
clause 4). The NAD Scheme must be about the
the Anti-Doping Convention done at Strasbourg on 16 November
the UNESCO Convention (if ratified)
matters ancillary or incidental to those Conventions.
The NAD Scheme can be amended by legislative
instrument, subject to the limitations set out in clause
10. The limitations require that the amended NAD Scheme is
about any of the following matters:
the implementation of the Anti-Doping Convention done at
Strasbourg on 16 November 1989, or
the UNESCO Convention (once ratified).
Proposed amendments to the NAD Scheme are subject
to public consultation (clause 11).
Clause 12 makes provision for
the NAD Scheme to apply or incorporate relevant international
Clause 13 sets out an extensive
list of mandatory content for the NAD Scheme. The NAD Scheme must
set out the classes of athletes and support people subject to the
NAD Scheme and the anti-doping rules applicable to those athletes
and their support persons.
In addition, the NAD Scheme must authorise the
ASADA to perform the following functions:
requesting that an athlete keep the ASADA informed of where the
athlete can be found
requesting athletes to provide samples to ASADA
testing, or arranging testing, of athlete s samples
investigating potential violations of the anti-doping rules
making findings in relation to investigations
establishing and maintaining a register of findings in relation
to investigations (Register)
notifying athletes of findings of investigations and the ASADA s
recommendations of consequences of those findings
presenting the findings of investigations and the ASADA s
recommendations of consequences of those findings to the Court of
Arbitration for Sport and other sporting tribunals
publishing information on the register of findings in relation
Clause 14 deals with the rights
of athletes and support persons in relation to the NAD Scheme.
An athlete has the right to be notified of the
consequences of failing to comply with the ASADA s request either
for the athlete to provide a sample or to keep the ASADA informed
of the athlete s whereabouts.
Where the ASADA proposes to enter an athlete or
support person s name on the Register, the person has the
Athletes and support persons have a right of
appeal to the Administrative Appeals Tribunal for a review of a
decision by the ASADA to enter the person s name onto the
Clause 14(5) allows for the NAD
Scheme to provide that athletes and support persons may waive
rights granted to them under the NAD Scheme. However, athletes and
support persons cannot waive the right to have a decision made
under the NAD Scheme reviewed by a court, tribunal or other
Clause 15 sets out further
mandatory content in relation to the NAD Scheme, namely that the
scheme must contain rules (known as the sporting administration
body rules ) that are:
Examples of sporting administration body rules
rules about promoting the compliance of athletes and support
persons with anti-doping rules
rules about referring potential anti-doping violations to the
rules about providing information and assistance to the ASADA in
relation to investigations of potential anti-doping violations.
The ASADA is authorised to monitor compliance of
sporting administration bodies with the sporting administration
body rules and to report to the Australian Sports Commission (often
referred to as the ASC) on the extent of compliance with those
The content of the NAD Scheme is not limited to
the mandatory content specified in clauses 13 and 15 (see
Clause 20 provides that ASDA will be renamed
the Australian Sports Anti-Doping Authority.
The ASADA s functions are set out in clause
21(1). Many of those functions relate to advising or
promoting education, research or information about sports drug and
safety matters . Sports drug and safety matters are defined in
clause 4 as:
a) a matter relating to drugs and/or doping
methods in one or more sporting activities; or
b) matter relating to the safety of athletes.
ASDA s functions in relation to sports drug and safety matters
advising the Australian Sports Commission on sports drug and
safety matters to be included in funding agreements between the
Australian Sports Commission and sporting organisations
promoting initiatives to educate people involved in sporting
activities about sports drug and safety matters
supporting, encouraging and conducting research on sports drug
and safety matters
collecting, analysing, interpreting and disseminating
information on sports drug and safety matters
providing assistance to States, Territories and sporting
organisations to develop and carry out initiatives about sports
drug and safety matters, and
providing services relating to sports drug and safety matters
under contract on behalf of the Commonwealth.
The ASADA s other functions, include:
functions conferred by the NAD Scheme
advising the Australian Sports Commission about recognising a
sporting organisation as being responsible for administering the
affairs of a sport (or of a substantial part or section of the
providing anti-doping testing services and safety checking
services under contract on behalf of the Commonwealth and
making resources and facilities available for the Australian
Sports Drug Medical Advisory Committee (ASDMAC). ASDMAC is
discussed further below.
Clause 21(2) sets out the
Constitutional limitations on the ASADA s performance of its
functions. These are discussed further below in the Concluding
Clause 22 sets out the ASADA s
powers which are the power to do all things necessary or convenient
to be done for or in connection with the performance of its
functions. The limitations to these powers are that the ASADA
The Minister may give directions to the ASADA in
relation to the performance of its functions or exercise of its
power (clause 24). However, the Minister cannot
make directions with respect to:
a particular athlete or support person who is subject to the NAD
the testing of a particular athlete under an anti-doping testing
service or safety checking service by the ASADA.
The ASADA is to have a Chair, a Deputy Chair and between 1 and 5
other members (clause 26).
Members are appointed to the ASADA by the Minister
(clause 27(1)). The Minister must be satisfied
that appointees to the ASADA have qualifications, experience or an
interest related to the ASADA s functions (clause
The Chair holds his/her position on a full time basis and all
other members hold their positions on a part time basis
(clause 27(3) and (4)).
Members are appointed to the ASADA for a period of not more than
5 years (clause 28).
Clause 29 sets out the procedures and
requirements for appointing acting members to the ASADA.
Clauses 30 38 set out the terms and conditions
of appointment for ASADA members. Importantly, in order to maintain
the ASADA s independence, the ASADA members must disclose:
any interest that may conflict with the duties the member
performs for the ASADA
any participation or involvement in sports administration,
involvement in the affairs of an athlete or support person
subject to the NAD scheme.
The ASADA members are also prohibited from
participating in decisions or deliberations of a sporting
organisation in relation to a matter, where the member has
previously been involved with a decision or deliberation by the
ASADA in relation to the same matter.
Clauses 39 44 set out the procedures for the
Clause 45 makes provision for a decision to be
made by the ASADA without holding a meeting where the majority of
the ASADA members agree with the proposed decision.
Clause 47(1) provides that the ASADA may
delegate its functions and powers to:
an ASADA member
a committee consisting of 2 or more ASADA members
a member of the ASADA staff
a person assisting the ASADA (discussed further in relation to
clause 50), or
a chaperone or drug testing official appointed under the NAD
Subclauses 47(2), (3) and (4)
limit the delegation of the ASADA s functions and powers under the
Clause 48 provides for the ASADA
to establish advisory committees to assist the ASADA in the
performance of its functions. Clause 50 provides
that the ASADA may also be assisted by officers and employees of
Commonwealth Agencies and Authorities.
The ASDMAC is a specialist medical advisory body consisting of
experienced medical professionals established by the ASDA Act
consider, and approve where appropriate, therapeutic use
exemption applications by athletes for the legitimate therapeutic
use of prohibited substances
provide expert medical advice to drug testing laboratories
provide expert medical advice to anti-doping tribunals
provide advice to national federations regarding drugs in sport
issues e.g. athletes use of asthma medications
advise the ASDA and the Australian Sports Commission on matters
relating to drugs in sport, including the safety of athletes,
advise ASDA s clients relating to sports medicine
Under the ASADA Bill (clauses 51-66), the
ASDMAC will continue in existence largely in the same way it
Clause 52 amends the functions of the ASDMAC
reflect that it will perform functions conferred on it by the
NAD Scheme, and
provide for ASDMAC to give advice in relation to sports drug and
safety matters (see discussion above in relation to clause
Similar obligations of disclosure apply to the
ASDMAC members as for the ASADA members (see clauses
58, 59 and 60).
Clauses 67 and 68 deal with
the ASADA s access to, and use of, information held by the
Australian Customs Service. These clauses further develop the
measures put in place in section 67AA of the ASDA Act for the ASDA
to receive and use information held by the Australian Customs
Section 16 of the Customs Administration Act 1985:
(a) prohibits the unauthorised recording and
disclosure of certain information held by the Australian Customs
(b) provides for exceptions in relation to the
(c) makes particular provision in relation to the
authorised disclosure of personal information.
Clause 67 puts in place the necessary
legislative regime so that the exemptions in relation to the
prohibition disclosure apply to the ASADA, including:
designating the ASADA as a Commonwealth agency for the purposes
of section 16 of the Customs Administration Act
setting out the types of protected information which may be held
by the Australian Customs Service which would be used by the ASADA
to perform its functions
expressly providing that the use and further disclosure of
certain information is authorised by law, and
expressly providing that the disclosure by the ASADA to sporting
administration bodies of personal information provided to the ASADA
by the Australian Customs Service is permitted by section 16 of the
Customs Administration Act.
Clause 68 sets out the conditions under which
the ASADA may disclose protected customs information , that is
information provided to the ASADA under section 16 of the Customs
Administration Act, to sporting administration bodies. Those
conditions are that:
ASADA is satisfied that the information should be disclosed for
permitted anti-doping purposes
the sporting administration body has given an undertaking to
only use the information for permitted anti-doping purposes and has
taken reasonable steps to ensure that the information will not be
disclosed in a way to unfairly prejudice the person to whom the
information relates, and
ASADA is satisfied that the disclosure of information will not
contravene the authorisation under which the Australian Customs
Service provided the information.
A permitted anti-doping purpose is:
investigating possible breaches of a current policy of the
sporting administration body about drugs and/or doping methods
determining whether to take action, and what action to take,
under such a policy
taking action under a policy, and
taking, or participating in, proceedings relating to action
taken under the policy.
Prior to any disclosure of protected customs information to a
sporting administration body, the ASADA must inform the person to
whom the information relates and give them the opportunity to
respond to the ASADA about the proposed disclosure.
Clauses 71 and 72 create two
offences in relation to the disclosure of personal information.
Clause 71(1) makes it an offence for an entrusted person
(defined in clause 69) who has obtained personal
information in relation to the NAD Scheme to disclose that personal
information to someone else. The maximum penalty for the offence is
2 years imprisonment.
Exceptions to the offence in clause 71(1) are set out in clause
71(2) and include when the disclosure is:
for the purposes of the ASADA Act
for the purposes of the NAD Scheme
made with the consent of the person to whom the information
to the Australian Federal Police or the Australian
Clause 72(1) makes it an offence for an entrusted
person who has obtained contract services personal information
(defined in clause 4) to disclose that information
to any other person. The maximum penalty for the offence is 2 years
The exceptions to the offence in clause 72(1) are
set out in clause 72(2) and are similar to those listed in clause
Clause 73 provides that both the
ASADA Act and the NAD Scheme are to operate within the limits
imposed by the Privacy Act 1988 in relation to the
handling of personal information.
Part 9 deals with a range of miscellaneous
matters related to the operation of the ASADA, including the
preparation of an annual report and the provision of reports or
information by the ASADA to the Minister.
Clause 78(1) provides for
protection from civil actions for a range of people and
organisations associated with the ASADA for acts or omission done
in the course of performing the ASADA s functions or exercising the
ASADA s powers.
Specifically, the following individuals and
organisations are protected from civil actions under clause
the ASADA members and staff
officers and employees of Commonwealth agencies and authorities
which are assisting the ASADA, and
chaperones and drug testing officials under the NAD Scheme.
Clause 78(2) protects ASDMAC members from
liability for acts or omission done in the course of performing the
ASDMAC s functions or exercising the ASDMAC s powers.
Clause 78(3) provides that the
Commonwealth and the ASADA are exempt from civil actions arising
from a loss, damage or injury to a person caused by a good faith
publication or disclosure in the course of performing the ASADA s
functions or exercising the ASADA s powers.
Clause 78(4) provides protection from civil
actions for people who provide documents or information to the
ASADA or the ASDMAC:
alleging an anti-doping violation
in connection with investigations under the NAD
supporting an allegation of an anti-doping violation
in connection with the ASADA s or the ASDMAC s functions under
the NAD Scheme
Schedule 1 amends the following legislation to
reflect the establishment of the ASADA, the creation of the NAD
Scheme and the abolition of the ASDA:
Administrative Decisions (Judicial Review) Act 1977
Age Discrimination Act 2004
Australian Sports Commission Act 1989
Australian Sports Drug Agency Act
Financial Management and Accountability Regulations
Olympic Insignia Protection Act 1987
The key provision is clause 7 which repeals the
Part 1 sets out the definitions used in the
Transitions Bill. One of the key definitions is transition
time which means the commencement of Schedule 2.
Part 2 provides for the administrative issues
such as how the ASDA s assets, liabilities and legal proceedings
are to be dealt with following the abolition of the ASDA.
Part 3 sets out how references to the ASDA are
to be read in instruments and contracts for services.
Part 4 deals with the appointments for the
officeholders for the ASDA and the ASDMAC under the ASDA Act. The
ASDA officeholders cease to hold their appointments at the
transition time. The Chair of the ASDMAC and other officeholders
cease to hold those appointments at the transition time, but are
automatically reappointed to ASDMAC by way of a notional instrument
of appointment under the ASADA Act.
Part 5 provides for the continued operation of
core operating provisions of the ASDA Act, despite the repeal of
Part 6 provides for the continued operation of
the non-disclosure provisions in Part VIIA of the Australian Sports
Commission Act in relation to protected information disclosed to
the Australian Sports Commission prior to the transition time. Part
6 also deals with the disclosure by the Australian Sports
Commission to the ASADA of certain information received prior to
the transition time.
Part 7 sets out the ASADA s reporting
obligations for the transition time.
While some aspects of the ASADA s proposed functions have raised
concerns by those involved in anti-doping investigations and
tribunal hearings, the establishment of the ASADA goes some way to
addressing concerns raised in relation to current sport runs sport
model of investigation.
The ASDA Act sets out an extensive definition for competitor in
section 2A. That definition makes it clear that the ASDA s
drug-testing and anti-doping functions are aimed at international
or national level athletes, or younger athletes who may become
international or national level athletes.
The ASADA Bill replaces the definition of competitor with
athlete . An athlete is defined as a participant in sporting
activity . Therefore, potentially the ASADA Bill will apply more
broadly across all levels of sport than the ASDA Act currently
The ASDA Act recognises that persons other than competitors may
be involved in anti-doping violations, such as coaches, trainers
and managers. For example section 4A relates to people , and not
only competitors tampering with sports drug matters. However, the
ASADA Bill sets out an express definition of support person as
being a coach, trainer, manager, agent, team staff member,
official, medical practitioner or para-medical practitioner who
works with or treats athletes participating in or preparing for
Support persons may be subject to the NAD Scheme and are
accorded the same rights as athletes in relation to making
submissions in relation to proposed decisions by the ASADA and
seeking administrative review of decisions by the ASADA.
Therefore the ASADA Bill creates a larger pool of people who are
potentially subject to the operations of the NAD Scheme and the
The second reading speech for the ASADA Bill describes the
creation of the ASADA as a tough response to doping in sport and a
response that treats all athletes fairly .(28) In
contrast, on the announcement of the ASADA in July 2005, one sports
commentator stated that Mark French s allegations of group drug
taking had led the AIS to create a Big Brother-style regime for AIS
scholarship holders, and expressed concerns that the ASADA may
continue in the same vein, leaving athletes with very few personal
The ASADA Bill accords the following rights to athletes:
oral or written notification of the possible consequences of
failing to comply with a request by the ASADA to provide a sample
or keep the ASADA informed of the athlete s whereabouts
the right to make submissions on a proposal by the ASADA to
enter the athlete s name onto the register of investigation
findings (this right is also extended to support persons where the
ASADA proposes to enter the support person s name onto the
a right of appeal to the Administrative Appeals Tribunal in
respect of any decision by the ASADA to enter an athlete s (or a
support person s) name onto the register.
Provision is also made for athletes and support
persons to waive rights that they may have under the NAD Scheme.
However, any right to apply to a court or tribunal for review of a
decision cannot be waived.
It is noted that Article 8 of the Code provides that athletes
have the right to be represented by Counsel at any hearing by a
tribunal into anti-doping violations and that this representation
is at the athlete s expense.
It may be appropriate, given the potentially
serious consequences on an athlete s (or support person s) career
of an anti-doping violation, or even the allegation of an
anti-doping violation, to consider whether an advocate (or other
supporter) to advise and counsel athletes and support persons
should be made available in the investigative stages of the
process. This type of safeguard would be particularly important for
younger athletes who may feel overwhelmed by an investigation.
Clause 21(2) of the ASADA Bill sets out in
detail the constitutional underpinnings (and hence limitations) to
the performance of the ASADA s functions. The ASADA Bill is
supported by a diverse range of constitutional heads of power,
the external affairs power (section 51(29) of the
the appropriations powers (sections 81 and 83 of the
the corporations power (section 51(20) of the Constitution)
the trade and commerce power (section 51(1) of the Constitution)
the postal, telegraphic and telephonic power (section 51(5) of
A constitutional corporation is defined in
clause 4 as a corporation to which section 51(20)
of the Constitution applies. Section 51(20) of the Constitution
gives Parliament the power to make laws with respect to foreign
corporations, and trading or financial corporations.
The ASADA can provide an anti-doping testing
service or safety checking service to a constitutional corporation
where (clause 21(2)(i))
the service involves testing one or more employees of the
constitutional corporation, and
the results of the testing are relevant to the relationship between
the constitutional corporation and the employee or employees.
In addition, the ASADA may provide a service to
the constitutional corporation where the service is provided to
protect the corporation s reputation from being damaged by the use
of drugs in sports and/or doping methods in sport (clause
Situations can be envisaged where the ASADA may
provide services to a constitutional corporation under clauses
21(2)(i) or (j), for example commercial football clubs.
However, as currently drafted, clause 21(2)(i)
gives rise to the prospect of the ASADA being used to provide an
employee drug testing service to private enterprise, without any
link between the employee and participation in a sporting activity.
Essentially, the ASADA is not limited to testing athletes ,
regardless of the breath of the definition of that word in the
Section 51(20) of the Constitution provides that
the Federal Government has the power to make laws for the peace,
order and good government of the Commonwealth with respect to
foreign corporations, and trading or financial corporations formed
within the limits of the Commonwealth. Under current High Court
case law, in order to be a trading or financial corporation, a
substantial or significant part of the corporation s
activities must be trade or financial activities.(30) As
noted by (then) Justice Mason, the substantial activity test is
very much a matter of fact and degree as to whether a body engages
in enough trading or financial activity to bring it within federal
control under the corporations power.(31)
With the exception of corporations engaged in
major sporting codes (for example AFL clubs, NRL clubs and A-league
soccer clubs), it might be questioned whether trading would form a
substantial part of the activities of most Australian
sporting bodies. If not, most Australian sporting organisations may
be beyond Commonwealth regulation under the corporations power. The
constitutional legality of the ASADA drug testing regime in
relation to such organisations would then depend on whether the key
provisions of the ASADA Bill were supported by another head of
power in the Constitution, such as the external affairs power.
Parliament may wish to seek further advice on the constitutional
coverage of the ASADA regime. (32)
Clause 21(2)(b) provides that the ASADA may
perform its functions for purposes related to money appropriated
for the purposes of the Commonwealth .
The extent to which Parliament can nominate the purposes for the
expenditure of Commonwealth funds as being for the purposes of the
Commonwealth has been the subject of debate by the High
Court.(33) While it may be that Parliament has the power
to appropriate money for the Government s sports anti-doping
policy, does this allow Parliament to give ASADA any function
relating to expenditure of that money? Can the Commonwealth
legislate for any purpose related to money appropriated for the
purposes of the Commonwealth? The appropriation of Commonwealth
money for a particular purpose may not be sufficient to provide the
Parliament with the power to legislate for any activity in relation
to that purpose rather the activities must be supported by the
legislative, executive or judicial powers in the
When the establishment of the ASADA was initially
announced in July 2005, the Minister stated that the new body would
established from 1 January 2006.
However, in the November 2005 Senate Estimates
hearings, the Minister admitted that the Government s legislative
program meant that the ASADA would not be established until early
A further delay to this timetable means that the
ASADA may not be established in time for the Commonwealth Games in
Melbourne, which commence on 15 March 2006.
While the transition from the ASDA to the ASADA
will not impact on drug testing for the Commonwealth Games, if the
ASADA is not established before the Commonwealth Games the current
arrangements in relation to investigations into anti-doping
violations (that is by independent investigations appointed by
sporting administration bodies) will continue.(36) Given
that it has been over 12 months since Justice Anderson recommended
the establishment of an independent investigative body, and the
Government s release of its discussion paper on the matter, it
would be disappointing if the ASADA were not established in time
for the Commonwealth Games.
The Court of Arbitration for Sport is an international
institution independent of sports organisations which provides
services to facilitate the settlement of sports-related disputes
through arbitration or mediation (see http://www.tas-cas.org/default.htm).
Generally speaking, a dispute may be submitted to the Court of
Arbitration for Sport only if there is an arbitration agreement
between the parties which specifies recourse to the Court. Some
sports, such as the National Rugby League and the Australian
Football League, have established independent tribunal arrangements
separate to the Court of Arbitration for Sport.
Jennifer Norberry, Australian Sports Drug Agency Amendment Bill
Bills Digest, no. 100, Department of the
Parliamentary Library, Canberra 1998-99.
For more information on the Council of Europe s Anti-Doping
Convention see the Explanatory Report to the Convention, available
A copy of the text of the Council of Europe s Anti-Doping
Convention is available at http://conventions.coe.int/Treaty/en/Treaties/Html/135.htm.
The summary in this and the following paragraphs have been
extracted from Joint Standing Committee on Treaties,
Report 70: Treaty tabled 9 November 2005: United Nations
Educational, Scientific and Cultural Organization International
Convention Against Doping in Sport , December 2005, Canberra,
at pp3-6. Further information on WADA is available on the WADA
website at http://www.wada-ama.org/en/.
Information in this and the following paragraphs in relation to
the Code has been extracted from the WADA website at http://www.wada-ama.org/en/dynamic.ch2?pageCategory.id=267.
A copy of the Code is available at http://www.wada-ama.org/rtecontent/document/code_v3.pdf/.
The Australian Sports Commission (also known by the abbreviation
ASC) is the national sports administration and advisory body. More
information about the Australian Sports Commission is available at
A copy of the Copenhagen Declaration is available at http://www.wada-ama.org/en/dynamic.ch2?pageCategory.id=267.
As at 28 October 2005, 182 governments had signed the Copenhagen
For more information on the UNESCO Convention see http://www.wada-ama.org/en/dynamic.ch2?pageCategory.id=273.
A copy of the UNESCO Convention is available at
See Joint Standing Committee on Treaties, op. cit.
See Senator the Hon Rod Kemp, Minister for the Arts and Sport,
AFL to become WADA Code compliant, media release, 19 July
2005, available at
Kim Jackson, Australian Sports Drug Agency Amendment Bill 2004 ,
Bills Digest, no. 97, Parliamentary
Library, Canberra 2003-04
See the discussion in Discussion Paper about proposed
legislation affecting Australian arrangements for the investigation
and hearing of sports doping allegations , p. 2.
See Senator John Faulkner, Adjournment: Sport: Drug Testing ,
Senate, Debates, 18 June 2004, p. 24295; and Quentin
McDermott, Tarnished Gold: Are Australia s sports bosses
surrendering to the drug cheats? , Four Corners, 22 March
2004, transcript available at http://www.abc.net.au/4corners/content/2004/s1072143.htm.
The material for this section was extracted from the various
reports of Robert Anderson SC, available at http://www.dcita.gov.au/sport/publications/anderson_report.
Equigen is equine growth hormone. It is a prohibited substance
for the purposes of the Anti-doping policies of the Australian
Sports Commission, Cycling Australia, the Australian Commonwealth
Games Association and the Australian Olympic Committee By-law.
Testicomp contains corticosteroids, which are prohibited substances
for the purposes of the anti-doping policies noted.
Mr Stanwix is a solicitor with experience in sports doping
Senator John Faulkner, Adjournment: Sport: Drug Testing ,
Senate, Debates, 18 June 2004, p. 24295
See The Honourable Robert Anderson QC, Second Stage Report to
the Australian Sports Commission and to Cycling Australia ,
Canberra, 27 October 2004, pp. 38, 40-41, 46 and 49, available at
ibid., p. 62.
A copy of the discussion paper, Discussion Paper about proposed
legislation affecting Australian arrangements for the investigation
and hearing of sports doping allegations , is available at
An example of such a conflict is the situation prior to the
Athens 2004 Olympics where the Greek sporting organisations were
investigating Greek runners who had evaded a drug test. The
athletes were the drawcard attractions for the sporting
organisation at the Olympics. See R. Masters, New one-roof body to
fix drug problem ,
The Sydney Morning Herald, 24 June 2005, p. 25.
See submissions on the discussion paper by the
Australian Olympic Committee (available at
Court of Arbitration for Sport (available at
See the submission on the discussion paper by the Australian
and New Zealand Sports Law Association (available at http://www.dcita.gov.au/__data/assets/pdf_file/23597/ANZSLA.pdf).
ibid., However, while the Code provides for an athlete or
support person to be represented at any hearing into anti-doping
violations, this representation is to be at the athlete/support
person s own expense.
See the submission on the discussion paper by John Marshall
See the submission on the discussion paper by National Rugby
League Ltd (available at http://www.dcita.gov.au/__data/assets/pdf_file/23611/NRL.pdf).
This list is taken from the ASDMAC website at http://www.asdmac.org.au/role.htm.
Kevin Andrews, MP, Minister for Employment and Workplace
Relations and Minister assisting the Prime Minister for the Public
Service, Second reading speech: The Australian Sports Anti-Doping
Authority Bill 2005 , House of Representatives, Debates, 7 December
2005, p. 9.
J. Magnay, Searching examination: new doping body will have
skeleton key to AIS rooms ,
The Sydney Morning Herald, 14 July 2005, p. 30.
R v Judges of the Federal Court of Australia and Adamson; Ex
parte Western Australian National Football League (Inc)
and West Perth Football Club (1979) 143 CLR 190; State
Superannuation Board of Victoria v Trade Practices Commission
(1982) 150 CLR 282.
ibid., (1979) 143 CLR 190, pp. 233 4.
For a review of who can be regulated under section 51(20) of the
Constitution see Peter Prince and Thomas John, The Constitution and
industrial relations: is a unitary system achievable? ,
Research Brief, no. 8, Parliamentary Library, Canberra,
2005-06, pp 3; 20 3.
See Attorney-General (Vic); Ex rel
Dale v Commonwealth (Pharmaceutical Benefits Case (No.
1)) (1945) 71 CLR 237; and Victoria v
Commonwealth (Australian Assistance Plan Case) (1975) 134 CLR
See Victoria v Commonwealth (Australian Assistance
Plan Case) (1975) 134 CLR 338 at 396 per Mason J.
See discussion in the Environment, Communications, Information
Technology and the Arts Legislation Committee,
Estimates Committee Transcript, 1 November 2005, pp. 37 38.
Mr Richard Ings, Chief Executive of the ASDA, discussed the
issues relating to the transition from the ASDA to the ASADA at
Senate Estimates Hearings on 1 November 2005 (Environment,
Communications, Information Technology and the Arts Legislation
Estimates Committee Transcript, 1 November 2005, pp. 37 38, 41
17 January 2006
Bills Digest Service
Information and Research Services
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© Commonwealth of Australia 2006
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