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Contact Officer & Copyright Details
Date Introduced: 3 December 1998
House: House of Representatives
Portfolio: Sport and Tourism
Commencement: On Proclamation. However, if
the Act has not commenced six months after Royal Assent then it
commences on the first day after the end of that period.
To amend the
Australian Sports Drug Agency Act 1990 (the Principal Act)
to recast operational and other provisions as subordinate
legislation and to establish an Australian Sports Drug Medical
Advisory Committee. The amendments also enable the Australian
Sports Drug Agency to provide services which test for the presence
of substances which may affect competitor's judgment or safety.
Drugs in sport
The use of drugs to enhance sporting performance
is said to be one of the reasons for the dissolution of the ancient
Olympic Games.(1) While doping was known about early in the modern
Olympics and on occasion caused athletes to fall ill and die, the
first drug tests were not conducted until the Mexico Olympics in
1968.(2) In 1967, the International Olympic Committee (IOC)
established a Medical Commission and developed a definition of
doping and a schedule of banned substances. This schedule now
includes stimulants, beta-blockers, narcotic analgesics, diuretics,
anabolic agents and hormones.(3) During the 1960s and 1970s,
governments and sporting organisations continued to implement
anti-doping practices and 'drug testing became a more common
feature of high-level sporting competition.'(4)
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
International Working Group on Anti-Doping in Sport (now
superseded) and the adoption of the International Olympic Charter
Against Doping in Sport by the IOC in September 1988. In September
1989 the Council of Europe adopted an Anti-Doping Convention.
Australian Sports Drug
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. ASDA's mission is 'to provide an
independent, high quality and accessible anti-doping program to
enable Australian sport to deter athletes from banned doping
practices.'(5) ASDA is an independent statutory body.
The major service provided by ASDA is its
sporting event and out-of-competition testing. Testing consists of
a Commonwealth Government-funded testing program and a user-pays
contract testing program involving professional sports leagues and
international sporting organisations. ASDA can collect sample which
are analysed by an accredited laboratory (such as the Australian
Sports Drug Testing Laboratory).(6) ASDA also maintains a Register
of Notifiable Events. The Register records details of positive test
results for the presence of banned substances and details of
refusals to comply with a request for a sample without reasonable
cause. ASDA is obliged under its legislation to notify details of
an entry on the Register to the particular competitor, the relevant
national sporting organisation and others.(7) In 1997-98, there
were 4,313 doping tests conducted and 42 entries were made to the
Register of Notifiable Events.(8)
ASDA's other statutory functions include
maintaining an up-to-date schedule of drugs and doping methods and
permitted levels (if any) and disseminating that information,
encouraging sporting organisations to develop and implement
anti-doping initiatives, providing information and education about
drugs in sport, advocating and supporting research into drugs in
sport and implementing anti-doping arrangements.(9)
1997 Review of the Principal
The Principal Act has been reviewed on a number
of occasions.(10) The most recent review was conducted in 1997 by
an independent consultant. The objectives of that review were
... recommend amendments to the structure and
contents of the ASDA legislation to ensure that:
- the agency has flexibility to respond in a timely manner to the
drug testing, procedural and policy requirements of national and
international sporting organisations and also State and Territory
- any options to be taken up continue to protect athlete rights
to natural justice and privacy.(11)
Following the submission of the report to the
Minister there were consultations with national sports agencies,
State and Territory government agencies and specialist professional
groups. ASDA's 1997-1998 Annual Report records that there
was 'strong and widespread support for the review's
ASDA generally supports the review's
recommendations, particularly those proposing:
- the removal of detailed operational and procedural matters from
the ASDA Act to Regulations and Operational Procedures outside the
legislation so as to allow ASDA to meet the policy needs of IFs(13)
and NSOs(14) in relation to the provision of drug testing
- increasing flexibility with the IOC list of banned substances
to recognise that ASDA conducts its sample collection and screening
according to IF lists;
- streamlining management processes; and
- establishment of a Medical Advisory Committee for the provision
of expert scientific and medical advice in relation to possible
positive test results and further to establish a central approval
system for athletes with a genuine medical need for the therapeutic
use of scheduled substances.(15)
Amendments to the preliminary
provisions of the Principal Act
Item 8 inserts a definition of
the expression 'doping method.' This definition includes the
manipulation or substitution of human biological fluid, biological
tissue or breath in an manner capable of concealing a person's drug
use. It also includes the use of a substance in a way that is
capable of concealing drug use.
Item 12 inserts a definition of
'drug testing service.' This is a service testing sporting
participants for the use of drugs where testing is by means of a
sample provided by the participant.
Item 22 replaces the present
definition of 'sample' in the Principal Act. The existing
definition refers to 'any human biological fluid or tissue.' The
new definition refers to human biological fluid', 'human biological
tissue (whether alive or otherwise)' and 'human breath'.
Item 28 replaces existing
subsection 4(1) of the Principal Act with a new subsection giving
examples of the circumstances in which ASDA may request a person to
provide it with a sample. These include requests made under 'drug
testing schemes', requests made under contracts entered into by
ASDA for the provision of drug testing services and 'safety
checking services' (see below) and requests made under 'anti-doping
ASDA's functions and
ASDA's functions are contained in section 9 of
the Principal Act. Item 32 repeals existing
paragraphs 9(1)(a), (b) and (c) and substitutes replacement
paragraphs stipulating that ASDA has the functions conferred on it
by a 'drug testing scheme' and that ASDA provides drug testing
services. Item 34 adds new paragraph
9(1)(e) which provides that ASDA also provides safety
checking services. Safety checking is testing to determine whether
a person's physiological or psychological state makes it unsafe for
them to participate in a sporting competition - for example,
because of their use of alcohol.(17)
Item 35 adds two further
paragraphs to subsection 9(1) which empower ASDA to undertake
collection, analysis and dissemination of information about the use
of drugs in sport and the safety of competitors. ASDA will also be
empowered to conduct research.
Item 39 repeals existing
subsection 9(2) and replaces it. Under existing subsection 9(2)
ASDA is prohibited from collecting samples from competitors except
in order to analyse those samples for the presence of scheduled
drugs or doping methods. New subsection 9(2)
enables ASDA to collect samples to determine whether a person has
been using 'drugs'.(18) ASDA will also be able to test samples to
determine whether a person's physiological or psychological state
makes it unsafe for them to participate in sporting competitions.
New subsection 9(2A) provides that samples or test
results obtained for the purposes of new subsection 9(2) can be
used by ASDA for research purposes.
Item 41 adds new
paragraph 9(6)(h). Existing subsection 9(6) recites the
constitutional framework in which ASDA operates. Thus, the
subsection refers to heads of Commonwealth power such as the
appropriations power, the executive power and the external affairs
power. New subparagraph 9(6)(h)(i) provides that
ASDA may perform its functions 'by way of the provision of a
service, if the provision of the service (i) utilises the Agency's
spare capacity.' The reference to spare capacity probably derives
from two High Court cases in which the defence power was held to
justify the use of Commonwealth defence factories to supply
Item 47 amends section 10 of
the Principal Act which deals with ASDA's powers. New
paragraph 10(1)(bb) will enable ASDA to form or
participate in the formation of companies.
Item 48 inserts new
sections 10A and 10B into the Principal
Act. New section 10A relates to the formation of
companies by ASDA. ASDA must not form or participate in the
formation of a company without Ministerial approval. The Minister
must also approve the appointment of company directors and changes
to the company's constitution.
New section 10B enables the
Minister to establish a Foundation the purpose of which is to raise
money for research and education/information dissemination on drugs
Conferral of powers and
functions on ASDA by the States and Territories
Item 43 repeals existing
subsection 9A(1) and replaces it with two new subsections. Existing
subsection 9A(1) states that if a State or Territory law providing
for the collection and drug testing of samples from competitors
confers powers or functions on ASDA, then ASDA may exercise those
powers or functions. The amendments provide that the Minister must
give written approval to ASDA before it can exercise powers and
functions conferred on it by a State or Territory law.
Item 49 repeals Part 3 of the
Principal Act and substitutes a new Part entitled 'Drug testing
schemes.' Importantly, new subsection 11(1)
provides that drug testing schemes can be established by
regulation. At present, the Principal Act details how samples are
obtained and tested by ASDA.
New section 11(2) defines 'drug
testing schemes.' These are schemes applying to sporting
competitors which set out schedules of drugs and doping methods.
Additionally, they authorise ASDA to request samples from
competitors, require ASDA to establish and maintain Registers of
Notifiable Events and disseminate information from the Registers to
relevant sporting organisations. Drug testing schemes must comply
with the statement of competitors rights set out in new
The amendments ensure that there can be more
than one 'drug testing scheme' - thus recognising the differences
'between sports in relation to competitors, drugs and doping
methods.'(20) A 'drug testing scheme' can specify how a request to
provide a sample is to be made(21) and what procedures are to be
followed for dealing with a sample.(22) A scheme may also deal with
the disclosure of information to sporting administration
bodies,(23) the removal of competitor's name from the Register of
Notifiable Events,(24) incidental matters,(25) and empower ASDA to
make drug testing orders(26) (see below for further details).
Where a sample from a competitor returns a
positive result, new section 13 gives examples of
the circumstances in which ASDA may require a competitor's name to
be entered on a Register of Notifiable Events. Thus, where tests
conducted by the proposed Australian Sports Drug Medical Advisory
Committee (ASDMAC) or an 'analytical investigatory body'(27) show
that the positive result is not attributable to naturally occurring
levels of the substance, ASDA may require that the competitor's
name be entered on the relevant Register.
New section 14 defines the
expression 'positive test result.' Under new section
14 findings which are defined as 'positive test results'
may be made either by an 'accredited laboratory' or 'using
specified analytical techniques and equipment.' Under new
section 66 an 'accredited laboratory' is a laboratory
recognised by the International Olympic Committee as '...
accredited ... for the purpose of testing for the use of drugs in
sport.' It may also be a laboratory recognised by a prescribed
organisation as complying with International Standards Organisation
requirements or 'the requirements set out in a prescribed
document.' Under present section 66, only laboratories which are
recognised by the IOC as accredited laboratories are defined as
New section 15 contains a
statement of competitors' rights. These rights must be complied
with by a drug testing scheme. In particular, a competitor has the
right to be notified 'orally or in writing' of the consequences of
failure to comply with an ASDA request to provide a sample. A
competitor must be given written notification if an entry is made
on a Register of Notifiable Events. And a competitor has the right
to ask the Administrative Appeals Tribunal to review a decision to
enter their name on the Register. A drug testing scheme may allow a
competitor to waive any of their rights under the scheme.
New section 17B relates to the
disclosure of information to sporting administration bodies. It
provides that a drug testing scheme may require or permit ASDA to
disclose information from the Register of Notifiable Events to
sporting administration bodies.
New section 17G enables drug
testing schemes to empower ASDA to make what are called 'drug
testing orders.' 'Drug testing orders' can cover any matter which
can be provided for by a 'drug testing scheme.' According to the
Explanatory Memorandum, the purpose of 'drug testing orders' is to
'... provide flexibility to ... [ASDA] to make timely variations to
drug testing schemes without the need to amend the
regulations.'(28) Drug testing orders, like the regulations(29)
which prescribe drug testing schemes, must be tabled in Parliament
and may be disallowed by either Chamber.(30)
New section 17J provides that
new Part 3 does not limit ASDA's powers to contract for the
provision of drug testing services or safety checking services,
conduct testing on behalf of foreign sporting organisations or
request other sporting administration organisations to conduct
testing on ASDA's behalf.
Testing by other sporting
New Part 3B deals with testing
by bodies other than ASDA. New section 17ZC
enables ASDA to ask other sporting administration bodies to collect
samples from competitors and have them tested. In these
circumstances, a drug testing scheme may empower ASDA to enter a
competitor's name on a Register of Notifiable Events if the
competitor refuses to comply with a request for a sample or tests
positive. The expression 'sporting administration body' includes
the International Olympic Committee, the Australian Sports
Commission, a 'foreign sporting organisation', a 'national sporting
organisation', or a 'sporting organisation'.(31)
Provisions relating to members
Under the Principal Act, 'the Agency' (ASDA)
consists of a Chairperson, Deputy Chairperson, Chief Executive and
not more than three or fewer than one other members. All members
are appointed by the Minister and must have qualifications or
special experience in a field relevant to ASDA's functions.(32)
Items 64 and
65 amend subsection 28(4) of the Principal Act.
Section 28 deals with disclosures of interest by ASDA members.
Thus, a member will have an interest in a matter 'if the member has
a direct or indirect pecuniary interest in the matter.'(33) As a
result of items 64 and 65 paragraph 28(4)(a), for example, will now
read that a member has an interest in a matter 'if, and only if,
the member has a material personal interest in the matter.'
Section 36 of the Principal Act sets out the
circumstances in which the Minister may terminate an ASDA member's
appointment. These circumstances are misbehaviour, physical or
mental incapacity, failure to disclose an interest, disclosure of
confidential information, absence without leave from 3 consecutive
ASDA meetings, or engaging in outside employment without prior
Item 67 inserts two new
subsections into subsection 36(1). New subsection
36(1A) enables the Minister to terminate a member's
appointment if he or she is of the opinion that the 'member's
performance has been unsatisfactory.' New section
36(1B) adds a general power of termination that enables
the Minister to terminate all ASDA members on the grounds that
ASDA's performance has been unsatisfactory.
ASDA Strategic Plans and
Existing Part 5 of the Principal Act deals with
ASDA's strategic plans and annual operational plans. These plans
must be submitted to and approved by the Minister and be tabled in
Parliament within 15 sitting days of Ministerial approval.
Additionally, ASDA must comply with these plans as far as
practicable and report on compliance in its annual report.
Items 68 and
69 repeal existing subsections 47(4) and 50(2)
respectively. As a result, the requirements for strategic plans and
annual operational plans to be laid before Parliament are removed.
These amendments apply to plans approved by the Minister before the
commencement of item 102.
Australian Sports Drug Medical
Advisory Committee (ASDMAC)
Item 75 inserts new
Part 7A into the Principal Act. New Part 7A provides for a
Australian Sports Drug Medical Advisory Committee.
ASDMAC will consist of a Chairman [sic] and no
fewer than three or more than six other members [new
subsection 65B(1)]. Member's qualifications are set out in
new subsection 65B(2). Members must be registered
medical practitioners and it must appear to the Minister that they
have knowledge of or experience in sports medicine, clinical
pharmacology, endocrinology or a field prescribed by
New section 65C sets out
ASDMAC's functions. These include functions conferred under a drug
testing scheme, advice to ASDA, the Australian Sports Commission
and sporting administration bodies and the provision of services,
information or advice. Examples of ASDMAC functions are set out in
new subsection 65C(2) and include investigating
positive test results, approving the use of prohibited drugs for
therapeutic purposes and providing information to sporting
administration bodies from Registers of Notifiable Events.
Members of ASDMAC are appointed by the Minister
for a specified period, not exceeding five years [new
subsections 65D(1) and (2)].
The Executive Government can, by regulation,
prescribe the way in which ASDMAC is to perform its functions.
ASDMAC's meeting procedures may also be prescribed [new
subsection 65E(1)]. ASDMAC can determine that resolutions
are able to be passed without a meeting occurring [new
subsections 65E(2) & (3)].
New section 65F deals with
disclosure of interests by ASDMAC members. An ASDMAC member is
taken to have an interest in a matter being considered by ASDMAC in
the circumstances set out in new subsection
65F(4). For example, a member will 'have an interest in a
matter' if and only if he or she has a material personal interest
in the matter. If an ASDMAC member has an interest in a matter
being discussed by ASDMAC then the interest must be declared, the
disclosure must be minuted and, unless the Minister or ASDMAC
otherwise determines, the member cannot participate in ASDMAC
deliberations or decisions on the matter.
New section 65G provides that
an ASDMAC member must not participate in decisions of sporting
administration bodies relating to a matter if he or she has been
present when ASDMAC has discussed that matter or taken part in an
ASDMAC decision about the matter.
New section 65L sets out the
circumstances in which an ASDMAC member's appointment can be
terminated by the Minister. Included in the grounds of termination
are a member ceasing to be a registered medical practitioner [a
requirement for appointment to ASDMAC under new subsection
65B(2)], becoming bankrupt or failing to disclose an
interest when required to under new section 65F.
The Minister may terminate a member if he or she is of the opinion
that the member's performance has been unsatisfactory. Similarly,
the entire membership of ASDMAC may be terminated if the Minister
view's ASDMAC's performance as unsatisfactory.
Amendments to Part 8 of the
Principal Act (Miscellaneous provisions)
Members and former members, employees and
consultants of ASDA, among others, are prohibited from disclosing
confidential information by section 67 of the Principal Act.
Item 78 inserts new paragraphs 67(1)(da)
& (db) which extend the confidentiality obligations to
ASDMAC members and consultants.
The Principal Act contains exceptions to the
general prohibition on disclosure. One is contained in paragraph
67(3)(b) which provides that information can be disclosed in
keeping with a function, power or duty under the Principal Act.
Item 79 inserts new subsection
67(3A) which provides that information disclosed by ASDA
to a sporting administration body under a contract for drug testing
services is an example of a disclosure permitted under paragraph
Item 85 adds additional
exceptions to the general prohibition contained in subsection 67(3)
of the Principal Act. These exceptions include disclosures to
sporting administration bodies about an evasion of a request to
provide a sample and disclosures about a person with the consent of
that person. ASDA can also disclosure information that was provided
to it by a sporting administration body about drugs or safety in
sport to another sporting administration body.
Item 89 inserts new
section 67AA which enables the Australian Customs Service
to disclose information to ASDA about the importation of scheduled
drugs into Australia. ASDA may use this information when deciding
who to ask to provide a sample. A scheduled drug is defined in
new subsection 67AA(4) as 'a drug included in a
schedule set out in a drug testing scheme.'
Item 98 inserts new
section 67C. If ASDA is aware that a competitor whose name
appears on a Register of Notifiable Events receives support from a
government or government agency, then ASDA must notify the
government or government agency.
- ASDA, Drugs in Sport, http://www.ausport.gov.au/asda/drugsin.html
- In 1904 a marathon runner died in the Olympics after taking a
mixture of brandy and strychnine. In 1952 amphetamines were used at
the Winter Olympics. In the 1950s Soviet athletes used hormones to
enhance sporting performance ' ... and the Americans developed
steroids as a response.' At the 1960 Rome Olympics, a cyclist
collapsed and died from an amphetamine overdose. See ASDA,
Drugs in Sport, op.cit.
- ASDA, Annual Report 1997-1998, p.6.
- ASDA, Drugs in Sport, op.cit.
- See section 17T of the Principal Act.
- Annual Report, op.cit.
- ASDA conducted a review of the Principal Act in July 1994.
- Annual Report, op.cit, p.53.
- International (Sporting) Federations.
- National sporting organisations.
- ASDA, Drugs in Sport Update, 2(1),
- An anti-doping arrangement is an international arrangement made
under section 66A of the Principal Act.
- The expression 'safety checking service' is inserted by
- A definition of 'drug' is inserted by item 9
and includes any substance whether naturally occurring or
- See Seddon, N & Bottomley, S 'Commonwealth companies and
the Constitution,' Federal Law Review, 26(2), October
1998, pp. 272-307. The authors describe the concept of 'spare
capacity' as unclear and remark that '... it would be a very
dubious proposition to engage in commercial activity not otherwise
referable to a head of power, just because there was supposedly
spare capacity' (at 279). The two cases are Attorney-General
(Victoria) v. Commonwealth (1935) 52 CLR 533 and Re KL
Tractors Ltd (1961) 106 CLR 318.
- Australian Sports Drug Agency Amendment Bill 1998,
Explanatory Memorandum, p.11.
- New section 17.
- New section 17A.
- New section 17B.
- New section 17D.
- New section 17E.
- New section 17G.
- A definition of 'analytical investigatory body' is inserted by
item 2 which states that such a body is 'a body
recognised by the International Sporting Federation as a body that
is qualified to investigate samples.'
- Page 17.
- Regulations must be tabled in Parliament and may be disallowed
by either House of Parliament as a result of section 48 of the
Acts Interpretation Act 1901 (Cwlth).
- New subsection 17G(3).
- See item 24 which amends subsection 2(1) of
the Principal Act.
- See sections 19 and 20 of the Principal Act.
- Paragraph 28(4)(a).
4 February 1999
Bills Digest Service
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