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 contents
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ISSN 1328-8091
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