Bills Digest 103 1995-96
Australian Sports Drug Agency Amendment Bill 1996
WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments.
This Digest was available from 18 June 1996
CONTENTS
Date Introduced: 8 May 1996
House: Senate
Portfolio: Sport, Territories and Local Government
Commencement: Sections 1 and 2 commence on Royal Assent. Section
3 and Schedule 1 commence on Proclamation or the first day after 6 months
of Royal Assent if the Proclamation is not made within the 6 months.
To amend the Australian Sports Drug Agency Act 1990 (Principal
Act) to facilitate more effective co-operation between the Australian
Sports Drug Agency (ASDA) and international sporting organisations, increase
the effectiveness of Australia's anti-doping program and set out clear
procedures, rights and obligations to reduce challenges based on legal
technicalities in relation to positive tests.
The use of substances to enhance performance in sporting competition
was reported as early as the third century BC in the ancient Greek Olympics
with athletes using mushrooms or meat. Awareness of drug use in the modern
Olympics developed in the 1904 Olympic games in St Louis when a marathon
runner had to be revived after winning the marathon. It was subsequently
discovered that the athlete had taken strychnine and brandy before the
race.
Early international initiatives
The first important anti-doping initiative occurred in 1960 when the
Council of Europe (a group of 21 western European countries) passed a
resolution against the use of doping substances in sport. Later Olympic
Games saw increased drug use and in 1965 the International Olympics Committee
(IOC) adopted a resolution IOC Resolution 27 and in 1967 the Medical Commission
of the IOC was established. Drug testing was instituted for the first
time for the 1968 Olympics in Mexico.(1)
During the 1960s-70s several countries passed national anti-doping legislation
and various national sporting bodies undertook domestic anti-doping initiatives.
Drug testing programs commenced in Australia in the early 1980s. In June
1988 the First Permanent Conference on Anti-Doping was held in Ottawa.
This led to the formation of the International Working Group on Anti-Doping
in Sport (now superceded) and the adoption of the International Olympic
Charter Against Doping in Sport by the IOC in September 1988 now replaced
by the IOC Medical Code. In September 1989 the Council of Europe adopted
an Anti-Doping Convention.
ASDA
The Australian Sports Drug Agency (ASDA) was established in 1990 following
a recommendation of the Senate Standing Committee on Environment, Recreation
and the Arts in its report, Drugs in Sport, May 1990. ASDA's mission
is: 'To ensure that Australian athletes are able to compete in sport which
is free from banned doping practices'. The vision is: 'To be one of the
leading sport agencies in the world and to achieve excellence as a small
statutory authority.'
Section 19(1) of the Principal Act specifies the composition of ASDA
as a chairperson, deputy chairperson and up to 3 other members appointed
on a part-time basis and a chief executive officer as a full-time board
member.
In 1993 a report was completed entitled: The Value of Sport, Ethics
and the Control of Performance Enhancing Drugs: A Study in the Australian
Sports Community and in 1994 ASDA conducted a survey of elite athletes
which showed a high level of support for ASDA drug testing programs.
ASDA conducted a review of the Principal Act in July 1994 and in November
1995 a National Drugs in Sport Framework was adopted by Commonwealth,
State and Territory Ministers for Sport.
Since its establishment ASDA has conducted 15,000 drug tests. During
1994-95 ASDA conducted drug testing at 22 sporting events and conducted
3,108 tests - 99% of these were drug free and 34 entries were made to
the Register of Notifiable Events. Of these tests 2103 were conducted
under the Government testing program across 48 sports. The emphasis is
on sports considered to be at greater risk of drug use namely - athletics,
cycling, powerlifting, rowing, swimming, triathlon and weightlifting.
ASDA allocated 10% of Government test funding to international testing
activities ie non-Australian athletes competing or training in Australia.
There was also an increase in out of competition drug testing and testing
on behalf of international sports federations.
ASDA also conducts testing programs with professional sport organisations
on a fee basis. These sports include NSW Rugby League, QLD Rugby League,
Australian Football League, National Soccer League, National Basketball
League and Uncle Toby's Professional Ironman and Ironwomen Super Series.
Samples are analysed by the Australian Sports Drug Testing Laboratory
in Sydney which is accredited by the IOC. This Laboratory will analyse
drug tests for the Sydney Olympics. ASDA will have a strong role in preparation
for and drug testing for the 2000 Olympics and lead up competitions to
the Olympics.(2)
ASDA and international initiatives
ASDA may enter into arrangements with foreign anti-doping bodies approved
under the Principal Act. ASDA is required to maintain a list of such approved
bodies which currently are the:
- British Council Doping Control Unit (approved 15/7/93)
- Canadian Centre for Drug-Free Sport (approved 14/12/93)
- New Zealand Sports Drug Agency (approved 21/1/94)
- International Doping Tests Management (approved 9/2/96).
Australia is also involved in assisting China develop its drug testing
and sports drug agency.
Australia is a party to the following anti-doping agreements:
- Memorandum of Understanding Between the Governments of Australia,
Canada, the United Kingdom, Norway and France Concerning the Reciprocal
Development and Enforcement of Measures Against Doping in Sport adopted
by the first three Governments on 19 December 1990, by Norway on 15
May 1992 and France on 28 February 1995. This is soon to become known
as the International Anti-Doping Arrangement;
- Memorandum of Understanding Between the Government of Australia and
the Government of New Zealand Concerning the Reciprocal Development
and Enforcement of Measures Against Doping in Sport signed 17 March
1992;
- Council of Europe Anti-Doping Convention 1989 ( in October 1994 Australia
became its first non-European signatory); and
the following existing and proposed inter-agency agreements:
- Memorandum of Understanding between the Chinese Olympic Committee
Anti-Doping Commission (COCADC) and the Australian Sports Drug Agency
(ASDA) 1994; and
- in progress draft agreement between the Australian Sports Drug Agency
(ASDA) and the United States Olympic Committee (USOC).
ASDA advocates an internationally consistent approach to drugs in sport
through membership on the IOC/International Federations Prevention and
Fight Against Doping Group. In 1995 the IOC Charter Against Doping in
Sport was replaced by the IOC Medical Code. ASDA also monitors the activities/decisions
of the International Court of Arbitration for Sport which was established
in 1983 by the IOC.
Item 1 inserts definitions of certain terms including 'foreign
national sporting organisation' and 'foreign sporting organisation' to
facilitate ASDA's increased involvement with such organisation. The term
'national sporting organisation' in relation to a particular sport means
an organisation recognised by the International Sporting Federation that
has international control over that sport or that is generally recognised
as responsible for administering the sport in that other country and in
respect of Australia an organisation recognised by the Australian Sports
Commission (the Commission) as responsible for administering the sport
in Australia.
Definition of competitor
Item 5 inserts a new s.2A defining 'competitor' as:
- an Australian citizen or permanent resident who competes or has been
selected to compete as a representative of Australia in international
sporting competition; or who has been assessed by an Australian sporting
organisation as having the potential to represent Australia;
- a person who competes in as a member of a team in sporting competition
in or outside Australia at which teams that represent Australia take
part or which have members which may represent Australia;
- a person who competes in international sporting competition held or
to be held in Australia or a competition assessed by an Australian national
sporting organisation as at being at a certain level;
- a person who competes in sporting competition and receives or is under
an agreement to receive support from the Commonwealth or the Commission;
- a person assessed by a foreign sporting organisation as having reached
a standard of performance to represent the country of his or her citizenship
or ordinary residence and in respect of whom ASDA has received a request
or is under contract to obtain a sample for testing;
- persons where an anti-doping agreement requires or permits the obtaining
of a sample for testing; and
- a person whose name is entered on the Register and is ineligible to
take part in sporting competition.
Competitors receiving support
Item 6 repeals s.3 and substitutes a new s.3 which defines
persons receiving government support for the purposes of the Principal
Act. A person receives support if he or she for the purposes sporting
or training activities:
- receives funding from;
- uses facilities wholly or partly funded by;
- or is a member or associated with a sporting organisation which receives
funding
from a government or government agency. Government is defined as either
the Commonwealth government, a State or Territory government and agency
means the Commonwealth Sports Commission and any sport academy or institution
of a State or Territory.
Objects of ASDA
Item 7 substitutes a new s.8 which refines the objects of ASDA
to:
- deter use of scheduled drugs or doping methods in sport;
- encourage development of education programs for sport communities
about drugs in sport;
- advocate the international adoption of consistent and effective anti-doping
programs; and
- co-ordinate development of consistent and effective national response
to drugs in sport.
Item 8 repeals paragraphs 9(1)(c)-(q) and substitutes new
paragraphs 9(1)(c)-(l) to reflect ASDA functions in accord with the
refined ASDA objectives and strategy.
Item 10 repeals s.9(3) and substitutes a new ss.9(3) and (3A)
to provide that ASDA may maintain a list of competitors containing particulars
such as addresses, date of birth, sporting activities, membership of clubs,
teams, scholarships, training, professional, amateur or representative
status, contacts for overseas competitions and other particulars necessary
to enable ASDA to perform its functions.
Item 11 changes the heading of Part 3 from 'Register of Notifiable
Events' to - 'Requesting, Collecting and Testing of Samples by Agency'.
Item 13 repeals ss.12-17C and substitutes ss.12-17ZB. Proposed
s.12 authorises ASDA to request a competitor to provide a sample in
accordance with regulations. Proposed s.12(3) allows for the regulations
to provide that substantial compliance with a request for a sample is
sufficient.
Procedures for provision of sample
Proposed s.13 lists matters which must be provided for in the
regulations including:
- informing the competitor that he or she is entitled to have a representative
oversee the collection of the sample, excluding the actual passing except
where the competitor has a disability and may require assistance;
- the collection and testing procedure;
- the competitor's rights under the regulations;
- possible consequences of failure to comply with a request to provide
a sample;
and of returning a positive result;
- the classes of persons or organisations which are required to be notified
of the particulars of an entry in the Register;
- the competitor's right to make submissions under proposed ss.17
and 17L; and
- the classes of persons and organisations to whom a negative test result
may be disclosed.
The regulations may provide that strict compliance is not required but
substantial compliance is sufficient.
Where ASDA believes a competitor is likely to fail to comply with a
request to provide a sample and ASDA thinks that the relevant national
sporting organisation should have an opportunity to persuade the competitor
to comply ASDA may tell the organisation of the competitor's failure to
comply. If the competitor claims to have retired from taking part in sporting
competition ASDA must check the date of notification of retirement (proposed
s.14).
Notice to Australian citizen/resident who has failed to provide a
sample
Where an Australian citizen, permanent resident or temporarily resident
non-Australian fails to provide a sample proposed s.17 requires
ASDA to give the competitor as soon as practicable a written notice stating
non-compliance. The notice must inform the competitor that he or she may,
within 7 days of receiving the notice, make a written submission to ASDA
that the competitor had reasonable cause for non-compliance; or waive
his or her right to make a submission.
If ASDA considers the competitor may compete in an international sporting
competition or a selection trial before the expiry of the 7 days ASDA
may specify a shorter time for a response from the competitor.
Proposed s.17A requires ASDA to decide whether the competitor
had reasonable cause for failing to comply with a request. ASDA must take
into account any submission from the competitor. Proposed s.17B
requires ASDA to provide the competitor with written notice of the decision
and if it decides the competitor did not have reasonable cause must inform
the competitor of the reasons for the decision.
Failure to provide sample
Proposed s.17D provides that in the case of a failure by a non
Australian citizen (other than a temporarily resident non Australian)
to comply with a request to provide a sample ASDA must inform the relevant
International Sporting Federation of the failure to comply. If the Federation
requests certain action ASDA may comply with the request as far as it
is capable.
Return of negative test result
If the competitor is an Australian citizen, a permanent resident or
a temporarily resident non-Australian ASDA may disclose a negative test
result to:- the competitor, or guardian of the competitor where appropriate,
relevant national sporting organisation and International Sporting Federation.
If the competitor is a non-Australian it may disclose particulars to the
competitor and any appropriate foreign anti-doping body (proposed s.17H).
Return of positive test
Where a positive test is returned by a competitor who is an Australian
citizen, permanent resident or temporarily resident non-Australian ASDA
must give the competitor written notification of the result. It must also
inform the competitor he or she has 7 days (or shorter period where the
competitor is likely to compete in international sporting competition
or selection trial) to submit relevant information or evidence or notify
waiver of the right to make a submission (proposed s.17L).
Determination of validity of test /notification
ASDA must decide whether a positive test is valid, after due regard
to a submission made by or on behalf of the competitor. It may decide
the test is invalid only if it is satisfied that the:
- sealing procedures had not been complied with;
- sample was not tested by an accredited laboratory; or
- sample was tampered with by an unauthorised person (proposed s.17M).
Proposed s.17N requires ASDA to give the competition written
notice after taking a decision on the validity of a written notice. If
the decision is that the test is valid ASDA must include in the notice
reasons for the decision and inform the competitor that he or she may
apply for review of the decision by the AAT subject to the Administrative
Appeals Tribunal Act 1975.
In the case of a positive test result for a non-Australian competitor
(except a temporarily resident competitor) ASDA must notify the relevant
International Sporting Federation. If the Federation requests ASDA to
take further action it may as far as possible (proposed s.17Q).
How samples are to be dealt with
If a competitor who is an Australian citizen, permanent resident or
temporarily resident non Australian fails to comply with a request to
provide a sample and ASDA decides there was no reasonable cause for non
compliance ASDA must enter the competitor's name on the Register (proposed
s.17R). If the final testing sample returns a positive test and ASDA
decides the test is valid ASDA must enter the name of the competitor on
the Register (proposed s.17S). ASDA will be required to give notice
to the competitor, guardian where appropriate, the Commission or other
institution from which the competitor receives support and the relevant
national sporting organisations (proposed s.17T).
Review of decision
A competitor may apply to the Administrative Appeals Tribunal (AAT)
for review of a reviewable decision. If the AAT sets aside a reviewable
decision ASDA must remove any entry made on the Register as a result of
the decision (proposed ss. 17V and 17W).
Testing on behalf of a foreign sporting organisation
Proposed s.17X provides that ASDA may enter into contracts with
a foreign sporting organisation to request, collect, transport and test
samples. ASDA may notify the relevant foreign sporting organisation of
any matter including - failure to provide a sample or complete required
forms, any misrepresentation or interference with the sample and test
results. ASDA may also notify other specified parties.
Testing by a foreign sporting organisation
Proposed s.17ZB provides that if a competitor who is an Australian
citizen or permanent resident refuses to provide a sample at the request
of a foreign sporting organisation or misrepresents a sample as his or
her sample or where a test is positive ASDA may disclose the information
to that organisation and persons specified in s.17T(2).
Proposed s.67B provides that if ASDA believes that a person other
than the competitor has provided the sample or has interfered with the
provision, collection or testing of the sample ASDA may notify the relevant
national sporting organisation.
(1) Tricker, R, Cook, DL Athletes At Risk: Drugs and Sport, Wm.
C. Brown Publishers, 1990, pp.17-18.
(2) Australian Sports Drug Agency, Annual Report 1994-95.
Ian Ireland Ph. 06 277 2438
14 June 1996
Bills Digest Service
Parliamentary Research Service
This Digest does not have any official legal status. Other sources should
be consulted to determine whether the Bill has been enacted and, if so,
whether the subsequent Act reflects further amendments.
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ISSN 1323-9032
© Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library, 1996.
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Last updated: 24 June 1996
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