BILLS DIGEST NO. 61, 2019–20              29 November 2019

Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019

Karen Elphick
Law and Bills Digest Section 

Date introduced: 17 October 2019

House: House of Representatives

Portfolio: Youth and Sport

Commencement: The substantive provisions commence on the later of the day after Royal Assent or 1 July 2020.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2019.

Glossary

Abbreviation

Definition

ASADA

Australian Sports Anti-Doping Authority

ASADA Act

Australian Sports Anti-Doping Authority Act 2006

ASC

Australian Sports Commission—known as ‘Sport Australia’

ASDMAC

Australian Sports Drug Medical Advisory Committee

ASWS

Australian Sports Wagering Scheme

CEO

Chief Executive Officer of Sport Integrity Australia

CEO ASADA

Chief Executive Officer of ASADA

the Code

World Anti-Doping Authority Code/WADA Code

Government Response

Safeguarding the Integrity of Sport—the Government Response to the Wood Review

ICCPR

International Covenant on Civil and Political Rights. Australia ratified the ICCPR in 1980 and it is in force for Australia but not fully implemented domestically.[1]

Macolin Convention

Council of Europe Convention on the Manipulation of Sports Competitions. Australia signed the convention on 1 February 2019 but has not yet ratified it.[2]

NADO

National Anti-Doping Organisation

NAD scheme

National anti-doping scheme. Authorised by the ASADA Act, the scheme is contained in Part 2 of the Australian Sports Anti-Doping Authority Regulations 2006.

NISU

National Integrity of Sport Unit. A unit within the Department of Health formed as a key outcome of a 2011 agreement to combat match fixing.

NSIC

National Sports Integrity Commission—a generic name for the body recommended by the Wood Review. The Bill establishes an NSIC and names it ‘Sport Integrity Australia’.

NSO

National Sporting Organisation—a generic name for the peak governing body of a sport

SIA

Sport Integrity Australia

WADA

World Anti-Doping Authority

Wood Review

Report of the Review of Australia’s Sports Integrity Arrangements

Purpose and history of the Bill

The purpose of the Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019 (the Bill) is to amend the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act) to establish a single point of responsibility to address all sport integrity matters.

It will unite all the existing nationally focussed sport integrity functions into a single entity, Sport Integrity Australia (SIA). The Bill renames the ASADA Act as the proposed ‘Sport Integrity Australia Act 2019’. The extended jurisdiction over sport integrity is described in the Explanatory Memorandum:

Sport Integrity Australia will implement Australia’s international obligations both under the UNESCO International Convention against Doping in Sport and, once in force and binding on Australia, the Council of Europe Convention on the Manipulation of Sports Competitions (Macolin Convention). In order to do this, Sport Integrity Australia will bring together the functions of the Australian Sports Anti-Doping Authority, the National Integrity of Sport Unit, and the sports integrity functions of Sport Australia.

Once established and operating, it is anticipated Sport Integrity Australia will expand to include enhanced match-fixing detection and suspicious wagering alert capabilities, a whistle-blower scheme, and promote national collaboration on sports wagering-related integrity frameworks.[3] 

A substantially similar Bill, the Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019 (the first Bill) was introduced into the House of Representatives on 4 April 2019. Debate on the second reading was adjourned and the Bill lapsed when the House was dissolved on 11 April 2019.

Structure of the Bill

The Bill has some standard technical provisions and then four schedules which make the amendments.

Schedule 1—Main amendments

A large number of the proposed amendments to the ASADA Act delete references to the Australian Sports Anti-Doping Authority (ASADA) and substitute SIA. The main substantive changes to the ASADA Act proposed by the Bill are:

•       items 1-2 rename the ASADA Act as the Sport Integrity Australia Act 2019 (SIA Act)

•       items 4 and 12 provide for the object of the Sport Integrity Australia Act which centres on addressing threats to sports integrity

•       item 19 omits Part 3 of the ASADA Act and substitutes proposed Part 3—Sport Integrity Australia’s establishment and function

•       items 20–36 amend Part 3A—Chief Executive Officer

•       item 37 inserts proposed Part 4—Sport Integrity Australia Advisory Council.

Schedule 2—Consequential amendments

Items 5–6 make substantive amendments to the Australian Sports Commission Act 1989 to ensure that the functions of Sport Australia do not overlap with those of the CEO of SIA.[4]

Item 23 defines SIA as an ‘enforcement body’ for the purposes of the Privacy Act 1988.

The remaining provisions amend a number of Acts to delete references to ASADA and substitute SIA.

Schedule 3—Contingent amendments

The provisions of Schedule 3 make consequential amendments which are contingent on Part 1 of Schedule 1 of Australian Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping Capability) Bill 2019 commencing before Schedule 1 of the Bill.

Schedule 4—Savings and transitional provisions.

These proposed provisions ensure that the privacy of existing records and documents, and current legal proceedings and protections are maintained as ASADA transitions to become SIA.

Background

In 2018 the Report of the Review of Australia’s Sports Integrity Arrangements (Wood Review) recommended a range of reforms aimed at enhancing Australia’s capability to address such threats to sports integrity as doping, match fixing, corruption in sports administration, exploitation by organised crime and bullying and abuse of participants. The Wood Review identified three main areas of challenge to adequately protecting the integrity of sport:

•       deficiencies in the ability to collect, analyse and disseminate information and intelligence hinder effective stakeholder coordination and increase the risk of compromise of sport and sporting competitions

•       different government agencies have varying responsibilities across the sports integrity continuum and there are gaps, duplication and other inefficiencies and

•       sports integrity resourcing and capability varies across national sporting organisations (NSOs) and diminishes quickly beyond elite levels and professional sports.[5]

The centrepiece of the Wood Review recommendations is the formation of a National Sports Integrity Commission (NSIC) to manage sports integrity matters at a national level.[6] The Wood Review proposed that some responsibilities remain with ASADA and that the NSIC be a separate agency. A list of all the Wood Review recommendations relating to the NSIC is included at Appendix A.

In Safeguarding the Integrity of Sport—the Government Response to the Wood Review (Government Response), the Government agreed or agreed in principle with most of the recommendations. However, the Government decided that it would be more effective to merge ASADA into the proposed NSIC as the sole entity with responsibility for all sports integrity matters:

The Government notes the importance of effective anti-doping measures to protect the integrity of Australian sport and agrees with the Wood Review recommendations to enhance the national anti-doping capability.

However, the Government is of the view that this would best be achieved by combining the current operations of ASADA into the NSIC, as this will provide a single sports integrity body to ensure an effective response across the full range of integrity threats and a single point of contact for all sports integrity stakeholders. It will reduce duplication of effort and realise significant administrative efficiencies.[7]

The Government Response noted the complexity of establishing the NSIC and proposed it be established in a phased approach. Stage One would unite the current sports integrity functions of ASADA, the NISU and SportAus and develop further viable options for Government consideration for the implementation of Stage Two. Stage Two would consider whether to implement capabilities relating to the oversight of sports wagering as well as intelligence collection, identification and analysis (including intelligence related to suspicious betting activity and other sports integrity issues).[8] Implementation of Stage Two would be dependent on industry support and availability of funding.

The Government Response contains a table setting out the specific response to each recommendation of the Wood Review.[9] This Bill is one of an initial package of four pieces of legislation that was prepared to implement most of Stage One of the Government Response.[10] The other three are the:

•       Australian Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping Capability) Bill 2019

•       National Sports Tribunal Act 2019 (received Royal Assent on 19 September 2019) and

•       National Sports Tribunal (Consequential Amendments and Transitional Provisions) Act 2019 (received Royal Assent on 19 September 2019).

This Bill aims to complete Stage One by establishing the recommended NSIC named ‘Sport Integrity Australia’ (SIA). Once SIA is established, the Government intends integrating the existing national sport integrity functions of the NISU and Sport Australia.

The Macolin Convention

The purpose of the Council of Europe Convention on the Manipulation of Sports Competitions (Macolin Convention)[11] is to combat the manipulation of sports competitions in order to protect the integrity of sport and sports ethics in accordance with the principle of the autonomy of sport. The main objectives of the Macolin Convention are:

•       to prevent, detect and sanction national or transnational manipulation of national and international sports competitions

•       to promote national and international co-operation against manipulation of sports competitions between the public authorities concerned, as well as with organisations involved in sports and in sports betting.[12]

The Macolin Convention recommends the criminalisation of the manipulation of sporting competitions;[13] however, Article 2 provides that the fight against the manipulation of sports competitions shall ensure respect, for the following principles:

•       human rights

•       legality

•       proportionality

•       protection of private life and personal data.

The Sports Conventions Division of the Council of Europe has explained that the Macolin Convention inspires policies which include:

·       Agreement to pursue nationally consistent legislative arrangements.

·       Structured co-operation (notably via the establishment of national platforms within article 13) processes at national level, thus facilitating trans-national co-operation. This should be put in place and facilitated by the Parties.

·       Legal arrangements for regular co-operation between law enforcement authorities and private stakeholders (sport movement, betting operators, etc.) to enhance co-operation in detection and investigations. 

·       Legal arrangements and integrity agreements between sports and betting companies which include requirements to share information, provide sports with a right to veto bet types and provide a financial return from sports betting to sports.

·       The adoption of codes of conduct by sports which include safeguards against manipulations of sports competitions and protection for whistle-blowers.

·       Forewarning that government funding to sports on which there is betting will be contingent on those sports implementing appropriate anti-match fixing and anti-corruption policies and practices.[14]

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) reported two scrutiny concerns in Scrutiny Digest 8 of 2019.[15]

Immunity from civil liability

Proposed subsection 78(1A) (at item 53 of Schedule 1) provides that no civil liability will arise from any action taken by an Advisory Council member in good faith in the performance or purported performance of any functions of the Advisory Council. The Scrutiny of Bills Committee considered the Explanatory Memorandum did not sufficiently justify that provision of immunity. It requested further advice from the Minister on why it is considered appropriate to provide members of the Advisory Council with civil immunity so that affected persons have their right to bring an action to enforce their legal rights limited to situations where lack of good faith is shown.[16]

Privacy

Item 23 of Schedule 2 to the Bill makes SIA an enforcement body for the purposes of the Privacy Act. The Scrutiny of Bills Committee requested the Minister provide a fuller explanation as to:

•       why it is considered necessary and appropriate for SIA to be an enforcement body for the purpose of the Privacy Act and

•       how SIA’s enforcement related activities will be undertaken in practice, including the nature of the enforcement powers and who will be exercising the enforcement powers.

At the time of publication the Minister’s response was not yet available.

Policy position of non-government parties/independents

On 1 August 2018, Senator Don Farrell, Shadow Minister for Sport, issued a media release stating that the Australian Labor Party (Labor) welcomed the release of the Wood Review and urged the Government to consult with national sporting organisations and other key stakeholders.[17] In addition the Labor Party National Platform states:

Labor will ensure Australia is at the forefront of efforts against doping and match fixing in sport and, in partnership with sports, will provide leadership in the international effort to protect the integrity of sport.[18]

The policy of The Australian Greens on Sport and Physical Recreation includes support for:

•       a drug free sporting environment

•       governance structures and financial structures in sporting organisations and associations to ensure integrity in all sporting codes

•       reduced influence of gambling on sport through:

–      more tightly regulated sports betting

–      education about the risks and harms of gambling on sport and

–      restricted advertising of gambling on sports.[19]

As at the date of writing this Bills Digest, it appears that no non-government parties or independents have indicated a position on the Bill.

Position of major interest groups

While there have been no statements from major interest groups on the Bill as drafted, there was extensive consultation during the Wood Review and some groups have issued statements about the Government Response. The Wood Review reported:

A majority of stakeholders indicated support for a central sports integrity ‘clearing house’ which, at a high level, would be responsible for cohesively drawing together existing sports integrity capabilities, knowledge and experience; and coordinating, nationally, all elements of the integrity threat response continuum: prevention, monitoring and detection, investigation, and enforcement.[20]

Australian Olympic Committee

The Australian Olympic Committee (AOC) supports all 52 recommendations of the Wood Review, noting the thoroughness of Justice Wood and his Panel members and commending the Government Response:

The establishment of the National Sport Integrity Commission (NSIC) will provide a cohesive, well-resourced national level capability. This is required now more than ever if Australia is to effectively respond to escalating integrity risks … [which are] beyond the control of any single stakeholder and require a robust and nationally coordinated response across sports, governments, regulators, the wagering industry and law enforcement.[21]

The AOC questioned in February 2019 whether the Government had committed sufficient funding for implementation.[22] The Government expects to redirect $22 million per annum of funding with an additional $7.7m in 2020–21 offset by residual savings.[23]

Commonwealth Games Australia

Commonwealth Games Australia (CGA) supports the consolidation of existing Federal Government functions in sports integrity under a new agency – Sport Integrity Australia – and the conduct of a two-year pilot of a new National Sports Tribunal. CGA also supports the signing of the Macolin Convention.[24]

Coalition of Major Professional and Participation Sports

The Coalition of Major Professional and Participation Sports (COMPPS) represents the major participation sports in Australia including Australian football, rugby, football, cricket, rugby league, netball and tennis. COMPPS indicated strong support for national regulation or coordination of sports integrity issues. However, COMPPS felt that a national commission constituted as a government agency would have limited effectiveness, submitting that the practical delivery of enhanced integrity outcomes must come from industry cooperation.[25] It noted that its members have well-established tribunals to hear integrity related matters at first instance and on appeal.[26]

The Wood Review specifically considered this submission but preferred the proposed NSIC.[27]

Exercise and Sports Science Australia

Exercise and Sports Science Australia (ESSA) is an accrediting body for professional support personnel and sports scientists. ESSA strongly supports the proposed NSIC and a proposed whistle-blower scheme to be administered by the NSIC.[28]

Financial implications

According to the Explanatory Memorandum, the Bill will have no net financial cost to the Commonwealth. The Government intends to support SIA by approximately $22m per annum from existing ongoing appropriations with an additional $7.7m in 2020–21 offset by residual savings from within the broader Health Portfolio 2018–19 MYEFO context.[29]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[30]

The Government acknowledges that the Bill engages the right to privacy and reputation expressed in Article 17 of the International Covenant on Civil and Political Rights (ICCPR).[31] The impact of the Bill on this right is discussed in detail in the Statement of Compatibility with Human Rights at pages 2–4.

The Bill proposes to declare SIA as a law enforcement body for the purposes of the Privacy Act and to exempt certain information provided to SIA from freedom of information legislation.

The Government considers that the proposed interference with privacy is proportionate, is not arbitrary, has a legitimate objective and is therefore compatible with human rights.[32]

Parliamentary Joint Committee on Human Rights

At the time of writing this Bills Digest, the Parliamentary Joint Committee on Human Rights had not yet reported on this Bill.

Key issues and provisions

Constitutional basis for legislation

There is no express Commonwealth constitutional power to legislate in the subject areas of sport, sports integrity or crime. Section 3 of the ASADA Act identifies implementing Australia’s international anti-doping obligations as the foundation for the Act. The Wood Review noted:

The anti-doping framework, both domestically and internationally, is highly complex; it involves national and international governance, private corporations and NGOs in a complicated web of contractual agreements, private arbitration and government regulation which operates both coercively and by way of moral imperative and reputational protectionism.[33]

Australia is a party to several international conventions which provide a basis in the external affairs power of the Constitution (section 51(xxix)) for Parliament to legislate: the ASADA Act and the Australian Sports Anti-Doping Authority Regulations 2006 implement the Council of Europe Anti-Doping Convention 1989,[34] the UNESCO International Convention against Doping in Sport,[35] and the World Anti-Doping Authority Code (the Code).[36] The Bill also relies on these conventions in transferring anti-doping functions to the SIA.

The broader sport integrity functions being transferred to SIA rely in part on the Macolin Convention. Australia has signed the Macolin Convention, but until it is ratified it will not be capable of activating the Commonwealth’s external affairs power to give constitutional authority to general federal regulation of sports integrity matters. Some of the CEO’s broader sports integrity functions will, until ratification, be limited by subsection 21(2) of the ASADA Act (which will become the SIA Act on commencement of the Bill).

Limits of CEO powers

Subsection 21(2) of the ASADA Act sets out the constitutional limits within which the CEO ASADA must perform his or her functions. The Bill has the effect that these limits will still apply to the CEO. To be certain that an intended action is supported by the Bill, the CEO will need to identify whether:

•       an intended action or decision is in performance of a function conferred by subsection 21(1)

•       the function comes within the limits of powers described in subsection 21(2) and

•       the function is being exercised for the purposes of the Act.

Objects clause

Item 4 of Schedule 1 inserts proposed section 3A which defines the objects, or purposes, of the Act.

The existing ASADA Act does not have an objects clause. It should be noted that even in the absence of an objects clause, the CEO has a statutory duty to govern ASADA in a way that promotes achievement of ASADA’s purposes.[37] The incorporation of an objects clause positively contributes to good governance by making those purposes express.

In summary, the overall purpose of the SIA is to coordinate a national approach to matters relating to sports integrity in Australia, including preventing and addressing threats to sports integrity.

Proposed definitions of ‘matter’, ‘sports integrity’ and ‘threats’ are included in the Bill (see discussion below).

Definition of sports integrity

Item 11 of Schedule 1 inserts a proposed definition of ‘sports integrity’ in section 4; ‘sports integrity’ means ‘the manifestation of the ethics and values that promote community confidence in sport’.

The Explanatory Memorandum does not explain the origin and intended meaning of this critical term. The definition is not intuitive and a fuller explanation of the term would have assisted Parliament in understanding the policy of the Bill.

Some content is given to the term by the non-exhaustive proposed definition of ‘threats’ to sports integrity:

•       threats to sports integrity include:

a)      the manipulation of sporting competitions

b)      the use of drugs or doping methods in sport

c)      the abuse of children and other persons in a sporting environment

d)      the failure to protect members of sporting organisations, and other persons in a sporting environment, from bullying, intimidation, discrimination or harassment (item 12).

Expansion of CEO’s powers and functions

The proposed key office holder, repository of statutory powers, and accountable authority of SIA is the CEO of SIA (CEO).

CEO ASADA currently has powers and functions in relation to ‘sports doping and safety matters’ as defined in section 4 of the ASADA Act:

sports doping and safety matter means:

              (a)              a matter relating to drugs and/or doping methods in one or more sporting activities; or

              (b)              a matter relating to the safety of athletes.

Items 23–25 of Schedule 1 repeal references in the CEO’s functions to ‘sports doping and safety matters’ and substitute the broader term: ‘matters relating to sports integrity.’ The broader term relies on the proposed definitions in section 4 inserted by items 9, 11 and 12.

These proposed definitions:

•       ensure the CEO retains all the functions and powers currently exercised by the CEO ASADA and

•       expand the CEO’s functions and powers over further matters relating to sports integrity.

The narrower description of ‘sports doping and safety matters’ will still apply in relation to the powers and functions of the Australian Sports Drug Medical Advisory Committee (ASDMAC), leaving the scope of ASDMAC’s powers and functions unchanged.[38]

Amendments to Part 3A—Chief Executive Officer.

Proposed section 20D establishes the statutory office of CEO of SIA (item 22).

Proposed paragraph 21(1)(c) expands the function of the CEO by referring to ‘matters relating to sports integrity’ when advising the Australian Sports Commission (ASC) about matters that should be included in the contractual agreements with NSOs (item 23).

CEO’s functions

The functions of the CEO are expanded in proposed paragraphs 21(1)(d) to (jae) to encompass new responsibilities for sports integrity (item 24). The expanded functions include:

•       coordinating a national approach

•       strengthening relationships between stakeholders

•       working with domestic and overseas stakeholders to confront match-fixing and fraud

•       advising Australian governments on policy and recommending legislative change

•       providing assistance and advice to sporting bodies on threats to sports integrity

•       advancing programs and education initiatives, including by provision of resources, analysis and research to confront threats to sports integrity.

An amendment to subparagraph 21(2)(a)(iii) (at item 26 of Schedule 1) clarifies the exercise of functions by the CEO for purposes related to external affairs. The amendment clarifies that the CEO may perform functions in or outside Australia in relation to persons, places, matters or things outside Australia.[39]

Appointment, Terms and Conditions

Division 2 of Part 3A deals with the appointment of the CEO and Division 3 deals with the terms and conditions of the CEO. These are not substantively amended by this Bill, and accordingly remain the same as those for the CEO ASADA.

Termination

Proposed subsection 24J(1) updates the phrasing of the termination clause. It is clearly not intended to be a substantive change and accords with the provisions usually made for statutory officers (item 29).

Proposed Part 3—Sport Integrity Australia’s establishment

Part 3 of the ASADA Act establishes ASADA and describes its functions. Item 19 omits Part 3 and substitutes proposed Part 3—Sport Integrity Australia’s establishment and function. Proposed Part 3 (proposed sections 20—20CAA) establishes SIA and describes its functions.

The note to proposed section 20B, ‘Sport Integrity Australia does not have a legal identity separate from the Commonwealth’, draws attention to proposed section 20CAA which provides that SIA has the privileges and immunities of the Crown. SIA will therefore be a non-corporate Commonwealth entity for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act). The PGPA Act requires Commonwealth entities to comply with accountability measures including providing reports to Parliament.[40] Importantly, non-corporate Commonwealth entities are also given certain powers under the PGPA Act, including with respect to expenditure of monies:

The accountable authorities of non-corporate Commonwealth entities have power to enter into arrangements, and approve commitments of relevant money, on behalf of the Commonwealth (see section 23).[41]

Officers of non-corporate Commonwealth entities also have certain duties under Part 2–2 Division 3 of the PGPA Act, including a duty to act honestly, in good faith and for a proper purpose.[42]

Proposed Part 4—Sport Integrity Advisory Council

Item 37 inserts proposed Part 4 (proposed sections 25–37) which establishes a new body, the Sport Integrity Australia Advisory Council (SIAAC) and provides for its functions.

An Advisory Group of ASADA was previously established by Part 4 of the ASADA Act, however Part 4 of the Act was repealed and the Advisory Group abolished by the Statute Update (Smaller Government) Act 2018. The Bills Digest prepared for that Act said:

The Explanatory Memorandum does not provide a detailed policy justification for the abolition of the ASADA Advisory Group beyond the general statement of policy intention in relation to all of the proposed amendments in the Bill. However, it indicates that the advisory group “is not active and has no current members” and further states that, despite the repeal of a legislatively mandated advisory group, “the ASADA Chief Executive Officer will still be able to seek advice as and when required”.[43]

SIAAC differs from the previous Advisory Group in a number of significant ways, so its role and function should be considered afresh.

Proposed subsection 27(1) empowers the SIAAC to provide advice on its own initiative to the CEO, but only on request to the Minister. The advice is not intended to be binding on the CEO in any way.[44] Proposed subsection 27(2) places limits on SIAAC advice:

•       it must be strategic advice only and

•       it must not relate to a particular individual or particular investigation.

The Explanatory Memorandum explains these limitations are World Anti-Doping Authority (WADA) requirements necessary to respect the autonomy of the National Anti-Doping Organisation (NADO).[45]

Ministerial directions

Proposed section 37 requires the SIAAC to comply with written directions from the Minister. These written directions are not legislative instruments and are not required to be registered on the Federal Register of Legislation or be subject to disallowance. This procedure might be considered appropriate for directions to an advisory council or committee (item 37).[46]

Composition of SIAAC

SIAAC is to have a chair and between six and ten other members (proposed paragraph 28(a)). Each is appointed by the Minister on a part-time basis for a period not exceeding three years, but may be reappointed (proposed subsections 29(1) and (2)). The CEO cannot be the chair, a member or an acting member of the SIAAC (proposed subsections 29(4), 30(1) and 30(2)).

The members (and any acting members) are required to have substantial knowledge or experience in a relevant field listed in proposed subsection 29(3):

•       sports administration and participation

•       sports law

•       intelligence and information gathering

•       law enforcement

•       anti-doping

•       high performance sport

•       athlete physical or mental health or well-being

•       harassment and discrimination prevention

•       child protection

•       formulation of government policy and public administration

•       education and learning

•       arbitration, mediation or other dispute resolution and

•       any other appropriate field of expertise.

Remuneration and allowances for members will be determined by the Remuneration Tribunal, but in the absence of a determination, may be prescribed by the Minister (proposed section 31). This is a usual provision which allows remuneration to be paid until the Remuneration Tribunal can consider the matter.

The provisions for leave (proposed section 32), disclosure of interests (proposed section 33), resignation (proposed section 34) and termination (proposed section 35) accord with the usual provisions applied to statutory appointments.

Proposed subsection 78(1A) provides protection from civil action to SIAAC members acting in good faith in the performance of their duties (item 53).

Schedule 2—Consequential amendments

Secrecy provisions protecting documents

Two provisions in Schedule 2 propose substantive changes to other Acts intended to establish the status of SIA as a law enforcement body. Establishing that status is important to facilitating the flow of information necessary for enforcement related activity between SIA and other agencies.[47]

Freedom of Information Act 1982

Section 38 and Schedule 3 of the Freedom of Information Act 1982 (FOI Act) identify documents that are exempt from disclosure under the FOI Act because there are secrecy provisions in an Act. Section 67 of the ASADA Act is a secrecy provision which provides that protected information may only be disclosed under certain conditions. No provisions of the ASADA Act are currently listed in Schedule 3 of the FOI Act. At item 13 of Schedule 2, the Bill proposes to add Sport Integrity Australia Act 2019, section 67’ to Schedule 3 of the FOI Act. This would have the effect of protected information under the Sport Integrity Australia Act being treated as an ‘exempt document’ under the FOI Act regime.

Privacy Act 1988

Section 6 of the Privacy Act defines ‘enforcement body’. There are currently 14 named bodies and several provisions that more generally describe such bodies. ASADA is not listed, nor is the NISU. It is arguable that both those bodies and SIA may be defined as enforcement bodies by one of the paragraphs generally describing enforcement bodies; for example:

enforcement body means: ...

(f) another agency, to the extent that it is responsible for administering, or performing a function under, a law that imposes a penalty or sanction or a prescribed law.

However, it may still be desirable for SIA to be listed as an ‘enforcement body’ to avoid unnecessary uncertainty or litigation as a result of SIA exercising its functions.

Item 23 of Schedule 2 adds SIA to the definition of ‘enforcement body’. The Government intends that by listing SIA as an ‘enforcement body’:

… the investigation of possible breaches of the anti-doping rules by the CEO of Sport Integrity Australia is considered to be an ‘enforcement related activity’ and is integral to the efficient and effective exercising of the CEO’s functions.[48]

The other provisions in Schedule 2 are simple consequential amendments removing references to ASADA and the ASADA Act in other Acts and substituting SIA and the Sport Integrity Australia Act.

Schedule 3—Contingent Amendments

The provisions of Part 1 of Schedule 3 will not commence at all if Part 1 of Schedule 1 of the Australian Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping Capability) Bill 2019 commences before Schedule 1 to the Bill commences. If the provisions of the other Bill do not commence on or before Schedule 1 of the Bill, Part 1 of Schedule 3 will commence at the same time as Schedules 1 and 2.

The provisions of Part 2 of Schedule 3 will only commence if Part 1 of Schedule 1 of the Australian Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping Capability) Bill 2019 commences before Schedule 1 of the Bill. If the provisions of the other Bill commence on or before Schedule 1 of the Bill, Part 2 of Schedule 3 will commence at the same time as Schedules 1 and 2.

Other provisions

Readability of the Bill and Explanatory Memorandum could have been improved for users if all the substitutions of ‘Sport Integrity Australia’ for ‘ASADA’ were set out in a table.

Possible correction for Section 3—Simplified outline of this Act

Proposed section 3 is a useful sketch of the scope of the Bill. Unfortunately it contains a syntax error in the second sentence which makes the meaning slightly ambiguous. The subject of the first sentence is ‘This Act’ and the object is SIA. The second sentence begins with ‘It’, which would normally refer to the subject of the previous sentence, ‘This Act’. However, the context suggests that ‘It’ is intended to refer to the SIA.

Appendix A—Selected recommendations of the Wood Review[49]

Those Wood Review recommendations relating to the NSIC that the Government has identified for implementation in Stage 1 are printed in normal black font.

Those nominated in the Government Response to be considered in Stage 2 are marked with * and are printed in bold blue.

Bold italic red indicates a point where the Government Response diverges from the Wood Review recommendation. (Most of the red marks simply indicate that the Government will be implementing the recommendation for or through SIA rather than ASADA).

MANIPULATION OF SPORTING COMPETITIONS

1. That Australia become a party to the Council of Europe Convention on the Manipulation of Sports Competitions (Macolin Convention), allowing the enactment of national match-fixing criminal legislation, supporting an effective global response to international sports integrity matters, acknowledging the transnational nature of match-fixing and related corruption in sport, and recognising the global quality of threats to the integrity of Australian-based competitions.

A NATIONAL PLATFORM

11. That, whether or not Australia becomes a party to the Macolin Convention, and initially independent, if necessary, of the establishment of the proposed National Sports Integrity Commission, the Australian Government, as a matter of urgency, formalise and expand the work of the Sports Betting Integrity Unit by establishing a ‘National Platform’ type entity with the powers and capabilities required to address the threat of match-fixing as outlined in Article 13 of the Macolin Convention (including the national regulation of sports wagering, administering the Australian Sports Wagering Scheme, and for information and data sharing).

12. That, on the establishment of the proposed National Sports Integrity Commission (NSIC), the functions, powers and capabilities of the National Platform be subsumed within the NSIC, as part of the its broader regulatory and law-enforcement function. The NSIC will then be identified as Australia’s ‘National Platform’ for the purposes of satisfying Article 13 of the Macolin Convention.

*13. That the National Platform facilitate a Suspicious Activity Alert System (SAAS), enabling real-time receipt and dissemination of alerts, collection of responses and assessment of integrity risk, to allow timely and decisive action. Participation in the SAAS is to become a condition of Sports Wagering Service Provider status, with the National Platform to have the authority to nationally suspend wagering markets where significant risk of match-fixing is identified.

*14. That a central clearinghouse function be established within the National Platform to receive, assess and disseminate data, information and intelligence from Sports Wagering Service Providers (SWSPs) and Sports Controlling Bodies (SCBs), including:

•       line-by-line transaction data and account information from SWSPs (including for sports wagering and racing)

•       all relevant player, support personnel and other sport integrity related data (including as might be deemed relevant from time to time) from SCBs.

*15. That provision of relevant sports integrity related data, information and intelligence (including the reporting of any suspicious activity in a timely manner) be a condition of SCB and SWSP status.

16. That the National Platform have status as a law-enforcement agency to receive, deal with and disseminate law enforcement and private information.

ANTI-DOPING – REGULATION

17. That the Australian Sports Anti-Doping Authority be retained as Australia’s National Anti-Doping Organisation and that the current requirement for all National Sporting Organisations (including sports with competitions only up to the national level) to have anti-doping rules and policies that comply with the World Anti-Doping Code also be retained.[50]

18. That the Australian Sports Anti-Doping Authority’s regulatory role and engagement with sports in relation to the audit and enforcement of sport’s compliance with anti-doping rules and approved policies be enhanced by establishing regulatory compliance powers exercisable by the proposed National Sports Integrity Commission in collaboration with (and at the request of) the Australian Sports Anti-Doping Authority CEO.

19. That the introduction of regulatory amendments to the Australian Sports Anti-Doping Authority Act 2006 (Cth) (ASADA Act) be considered to provide for:

•       extending statutory protection against civil actions to cover National Sports Organisations (NSOs) in their exercise of Anti-Doping Rule Violation (ADRV) functions

•       facilitating better information sharing between ASADA and NSOs through enhancing statutory protections over information provided to an NSO by ASADA

•       empowering the ASADA CEO to comment on current cases under broader circumstances than currently permissible under s 68E of the ASADA Act, including where misinformation has been published

•       empowering the ASADA CEO to exercise discretion in respect of lower level athletes to apply more flexible rules in accordance with guidelines to be developed but maintaining compliance with the Code.

ANTI-DOPING EDUCATION AND OUTREACH

20. That the Australian Sports Anti-Doping Authority and the sports sector should increase their respective investments in anti-doping education, collaborating to deliver more effective education and training packages with greater reach below national-level athletes (with the benefit of the example provided by United Kingdom’s Anti-Doping Education Delivery Network, World Anti-Doping Agency (WADA) and other education programs established by other National Anti-Doping Organisations). Education and training programs to focus on:

•       information on the testing process and allied rights of athletes

•       the need for values-based education.

ANTI-DOPING TESTING AND INVESTIGATIONS

21. That the Australian Government ensure that the Australian Sports Anti-Doping Authority is adequately resourced and financially sustainable, enhancing its capacity to engage with sports and be an effective and responsive regulator and National Anti-Doping Organisation.

23. That the Australian Sports Anti-Doping Authority’s investigative capability be enhanced by:

•       establishing, through collaboration with the sporting sector, guidelines for the conduct of anti-doping investigations which clearly define the roles and responsibilities of government agencies (including the Australian Sports Anti-Doping Authority (ASADA) and the sporting sector (subject to the Australian Government Investigations Standards)

•       establishing strong information and intelligence sharing links with law-enforcement agencies and regulatory agencies, including with and through the proposed National Sports Integrity Commission (NSIC) (with consideration being given to the application of the Privacy Act 1988 (Cth) and any need for amendment, including conferring law-enforcement status on ASADA and the NSIC)

•       strengthening ASADA’s disclosure notice regime by:

–      excluding the right to claim privilege against self-incrimination when answering a question or providing information to ASADA, while providing, where an objection or privileged is raised, appropriate protections against non-direct or derivative use in any criminal prosecution

–      ensuring that sanctions for non-compliance with disclosure notices are appropriate

•       establishing whistleblower protections.

A NATIONAL SPORTS INTEGRITY COMMISSION

38. That the Australian Government establish a National Sports Integrity Commission to cohesively draw together and develop existing sports integrity capabilities, knowledge and expertise, and to nationally coordinate all elements of the sports integrity threat response including prevention, monitoring and detection, investigation and enforcement.

39. That the National Sports Integrity Commission be identified as Australia’s National Platform for the purposes of the Macolin Convention.

40. That the National Sports Integrity Commission have three primary areas of focus:

•       regulation

•       monitoring, intelligence and investigations

•       policy and program delivery (including education, outreach and development).

NATIONAL SPORTS INTEGRITY COMMISSION – REGULATION

*41. That the National Sports Integrity Commission be responsible for overseeing and coordinating the regulation of sports wagering in Australia, working in close collaboration with state and territory gambling regulators, sports controlling bodies and wagering service providers, as part of the proposed Australian Sports Wagering Scheme.

42. That the National Sports Integrity Commission (NSIC) be authorised to deal with information captured by the Privacy Act 1988 (Cth), and have the ability to collect and use ‘sensitive information’ about a person without consent. The NSIC be designated as a law-enforcement agency to have the confidence of international and Australian law-enforcement agencies as both a receiver and provider of personal information, and material alleging criminality.

NATIONAL SPORTS INTEGRITY COMMISSION – MONITORING, INTELLIGENCE AND INVESTIGATIONS

*43. That a formal, ongoing Sports Betting Integrity Unit (SBIU) be established within the National Sports Integrity Commission (with functions transferred from the SBIU recently established within the ACIC) to allow for the systematic receipt, assessment and dissemination of information relating to suspicious betting activity, and undertake an ongoing regulatory monitoring, compliance and enforcement function.

*44. That a Joint Intelligence and Investigations Unit (JIIU) be established in the National Sports Integrity Commission, with dedicated representatives of state and territory law-enforcement agencies, as well as relevant Commonwealth agencies including the Australian Criminal Intelligence Commission, Australian Federal Police, Australian Sports Anti-Doping Authority, and the Department of Home Affairs. The JIIU is to be responsible for: intelligence collection and analysis for a broad range of sports integrity issues; liaison with domestic and international law-enforcement agencies and criminal intelligence commissions; and referral services – to law enforcement in criminal matters, and to sporting organisations for code of conduct issues.

*45. That a Strategic Analysis Unit be established as part of the National Sports Integrity Commission, and be responsible for conducting open-source threat identification and analysis including: monitoring of illegal offshore wagering market framing; conducting strategic and threat analyses and providing advice (including in relation to sports integrity threat overviews); and determining a schedule of authorised wagering contingencies.

46. That the National Sports Integrity Commission (NSIC) work closely with the Australian Criminal Intelligence Commission (ACIC) and that the ACIC be resourced to maintain a standing, advanced sports criminal intelligence capability to: enable enhanced analysis and exploitation of NSIC data and intelligence products; support the NSIC through advanced intelligence capabilities; and proactively develop intelligence on serious organised criminality linked to sport but outside the remit of the NSIC (e.g. money laundering through Wagering Service Providers).

*47. That a whistleblower scheme encompassing all sports integrity issues, and a related source protection framework, be administered by the National Sports Integrity Commission.

*48. That the National Sports Integrity Commission work with major professional sports regarding illicit drugs policies with a view to seeking access to results of sample analysis for the purposes of integrating with intelligence and analysis capabilities.

NATIONAL SPORTS INTEGRITY COMMISSION – POLICY AND PROGRAM DELIVERY

49. That consideration be given to the National Sports Integrity Commission becoming responsible for centrally coordinating sports integrity policy functions previously executed by a number of different organisations including the Australian Sports Commission, Good Sports Program (through the Alcohol and Drug Foundation) and National Integrity of Sport Unit.

50. That the National Sports Integrity Commission be a single point of contact for athletes, sporting organisations, Sports Wagering Service Providers, and other stakeholders for matters relating to sports integrity.

51. That the National Sports Integrity Commission provide direct assistance to small and emerging sports in Australia that lack capacity to deal with integrity issues.

52. That a single, easily identifiable education and outreach platform be established within the National Sports Integrity Commission (NSIC), dedicated to developing and coordinating education, training and outreach resources and programs in collaboration with the Australian Sports Anti-Doping Authority, Australian Sports Commission, sports (particularly Coalition of Major Professional and Participation Sports integrity units) and athletes, including athletes’ associations. Administration of existing initiatives and forums, including the Australian Sports Integrity Network, Jurisdictional Sports Integrity Network, Betting Regulators forum and Play by the Rules, should be incorporated into the NSIC education and outreach platform.

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[1].              International Covenant on Civil and Political Rights, done in New York on 16 December 1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13 November 1980; Art. 41 came into force for Australia on 28 January 1993). See also comments of Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT), Legal foundations of religious freedom in Australia: interim report, Chapter 6, JSCFADT, Canberra, 2017.

[2].              Council of Europe Convention on the Manipulation of Sports Competitions, (Macolin Convention), opened for signature 18 September 2014, CETS No. 215, entered into force 1 September 2019 (but not yet in force for Australia); Council of Europe, ‘Chart of signatures and ratifications of Treaty 215’, Council of Europe Treaty Office website.

[3].              Explanatory Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019, p. 1.

[4].              Sport Australia is the operating brand name of the Australian Sport Commission.

[5].              J Wood, D Howman and R Murrihy, Report of the Review of Australia’s Sports Integrity Arrangements (Wood Review), report prepared for the Department of Health (DoH), Canberra, 2018, p. 174.

[6].              The main discussion of the proposed body is in Chapter 6 of the Wood Review, beginning at page 168.

[7].              DoH, Safeguarding the Integrity of Sport—the Government Response to the Wood Review (Government Response), DoH, Canberra, 11 September 2018, p. 8.

[8].              Ibid., pp. 19, 24.

[9].              Ibid., pp. 10–25.

[10].              Ibid., pp. 10–20.

[11].              Macolin Convention, op. cit.; Council of Europe, ‘Chart of signatures and ratifications of Treaty 215’, op. cit.

[12].              Macolin Convention, op. cit., Preamble and Article 1.

[13].              Sports Conventions Division, Panorama—Convention on the Manipulation of Sports Competitions – Macolin Convention (CETS n°215), Directorate General of Democracy, Council of Europe, 23 October 2018, p. 11.

[14].              Sports Conventions Division, Panorama, op. cit., p. 19.

[15].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 8, 2019, The Senate, 13 November 2019, pp. 10–11.

[16].              Ibid., p. 10.

[17].              D Farrell (Shadow Minister for Sport), Sports game plan a start but proof is in performance, media release, 1 August 2018, p. 2.

[18].              Australian Labor Party, A fair go for Australia, Australian Labor Party National Platform, 1 July 2018, p. 196, [354].

[19].              Australian Greens, ‘Sport and Physical Recreation’, Australian Greens website, policy endorsed November 2017.

[20].              Wood et al, Wood Review, op. cit., p. 174.

[21].              Australian Olympic Committee (AOC), AOC commends government response to the Wood Review, media release, 12 February 2019.

[22].              Ibid.

[23].              Explanatory Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019, p. 1.

[24].              Commonwealth Games Australia, Integrity initiatives welcomed by Commonwealth Games Australia, media release, 12 February 2019.

[25].              M Speed, Submission to Review Panel on Australia’s Sports Integrity Arrangements, The Coalition of Major Professional and Participation Sports Inc. (COMPPS), 2 October 2017, p. 27.

[26].              Ibid., p. 11; P Sakkal, ‘Sports spurn new national integrity body’, The Age, 16 February 2019, p. 2.

[27].              Wood et al, Wood Review, op. cit., p. 175.

[28].              Exercise and Sports Science Australia (ESSA), ‘Submission to Review of Australia's Sports Integrity Arrangements - Developing a Government response’, 30 August 2018, p. 3.

[29].              Explanatory Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019, p. 1.

[30].              The Statement of Compatibility with Human Rights can be found at pages 2–4 of the Explanatory Memorandum to the Bill.

[31].              Explanatory Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019, p. 2.

[32].              Ibid., p. 4.

[33].              Wood et al, Wood Review, op. cit., p. 104.

[34].              Anti-Doping Convention, done in Strasbourg, 16 November 1989, [1994] ATS 33 (entered into force for Australia 1 December 1994).

[35].              International Convention Against Doping in Sport, done at Paris 19 October 2005, [2007] ATS 10 (entered into force generally and for Australia 1 February 2007).

[36].              World Anti-Doping Code 2015 with 2019 amendments.

[37].              See paragraph 15(1)(b) of the Public Governance, Performance and Accountability Act 2013.

[38].              Australian Sports Anti-Doping Authority Act 2006 (ASADA Act), Part 7.

[39].              Explanatory Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019, p. 9.

[40].              The Annual Report is also mentioned at section 74 of the ASADA Act.

[41].              Public Governance, Performance and Accountability Act 2013, section 14.

[42].              Ibid., section 26.

[43].              C Raymond, Statute Update (Smaller Government) Bill 2017, Bills digest, 35, 2017–18, Parliamentary Library, Canberra, 12 October 2017, p. 18.

[44].              Explanatory Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019, p. 10.

[45].              Ibid.

[46].              See, for example: sections 56CI and 56CM of the Competition and Consumer Act 2010.

[47].              Explanatory Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019, p. 14.

[48].              Ibid.

[49].              Relevant information excerpted from: Wood et al, Wood Review, op. cit.; DoH, Government Response, op. cit.

[50].              The Government agrees that all NSOs should have compliant anti-doping policies, however it is of the view that the current functions of ASADA should be incorporated into the NSIC to provide for a single, effective national body responsible for all sports integrity matters and to provide a single point of consultation and outreach for all stakeholders on sports integrity matters (see Government Response op. cit., p. 12).