Bills Digest No. 17, 2020–21
PDF version [620KB]
Law and Bills Digest Section
Purpose of the Bill
Structure of the Bill
Policy position of non-government
Position of major interest groups
Statement of Compatibility with Human
Key issues and provisions
Appendix 1 – Summary of some of
the significant changes implemented by the 2021 Code
Date introduced: 26
months after Royal Assent unless an earlier date is fixed by proclamation.
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
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
All hyperlinks in this Bills Digest are correct as
at October 2020.
Anti-Doping Code 2021 (approved but not yet in force)—also
known as the revised WADA Code.
||The eight mandatory International
Standards issued by WADA which harmonise specific technical and
operational parts of anti-doping programs.
||‘Adverse Analytical Finding’, defined at p.
164 of the 2021 Code. A report from an accredited or approved laboratory
that establishes in a sample the presence of a prohibited substance or its metabolites
or markers or evidence of the use of a prohibited method.
||An Anti-Doping Organisation given responsibilities under
||Anti-doping rule violation.
||Australian Sports Anti-Doping Authority (integrated into
Sport Integrity Australia in 2020).
||Australian Sports Commission—established by the Australian Sports
Commission Act 1989 and known by the brand name ‘Sport
Australia’ or ‘SportAus’.
||Australian Sports Drug Medical Advisory Committee.
||‘Atypical Finding’, defined at p. 166 of the 2021
Code: A report from an accredited or approved laboratory which requires
further investigation prior to the determination of an AAF.
||Court of Arbitration for Sport.
||Chief Executive Officer of Sport Integrity Australia.
Anti-Doping Code 2015 with 2019 amendments (as in force)—also
known as the WADA Code.
||A multi-year process of review by WADA of the current Code
begun in November 2017. The process is explained at ‘2021
Convention Against Doping in Sport (as amended from time to time), done
at Paris 19 October 2005,  ATS 10 (ratified for Australia 17
January 2006; entry into force generally and for Australia 1 February 2007).
||European Court of Human Rights.
|Guide for Stakeholders
||World Anti-Doping Agency (WADA), 2021
World Anti-Doping Code and International Standard Framework Development and
Implementation Guide for Stakeholders, 18 October 2019, WADA.
Covenant on Civil and Political Rights—Australia ratified the ICCPR
in 1980 and it is in force for Australia but not fully implemented
of Europe Convention on the Manipulation of Sports Competitions—Australia
signed the convention on 1 February 2019 but has not yet ratified it.
||National Anti-Doping Scheme—prescribed by section 9
of the Sport
Integrity Australia Act 2020, the NAD scheme is contained in Schedule
1 of the Sport
Integrity Australia Regulations 2020.
||National anti-doping organisation—Sport Integrity
Australia is Australia’s designated NADO.
||National Sporting Organisation—a generic name for
the peak governing body of a sport.
Sports Tribunal Act 2019
||Sport Integrity Australia.
||World Anti-Doping Agency.
The purpose of the Sport Integrity Australia Amendment
(World Anti-Doping Code Review) Bill 2020 (the Bill) is to amend the Sport Integrity
Australia Act 2020 (the Act) by expanding the operation of some provisions
to include non-participants in sport, to amend the definition of
an athlete, and other minor amendments. The expansion to cover
non-participants is intended to align Australia’s anti‑doping
legislation with the new World Anti‑Doping
Code 2021 (2021 Code) and accompanying International
Standards (2021 Standards) issued by the World Anti-Doping Agency (WADA).
This Bill has one Schedule divided into two parts. Part 1
makes amendments to the Act. Two key amendments in Part 1 broaden the
application of the national anti-doping scheme (NAD scheme) by:
the definition of athlete to include persons who have competed in
sport within the past six months and
a new definition of non-participant.
Part 1 also expands the circumstances in which an
anti-doping organisation may respond to published misinformation about an
ongoing anti-doping rule violation (ADRV).
Part 2 makes consequential amendments to the National Sports
Tribunal Act 2019 (NST Act) to ensure that arbitration is
available for any person who is subject to a sporting administration
body’s anti-doping policy, including athletes, support persons, and
Sport Integrity Australia (SIA) was established in
2020 to unite all the existing nationally focussed sport integrity functions
into a single entity. It brought together the functions of the Australian Sports
Anti‑Doping Authority, the National Integrity of Sport Unit, and the
sports integrity functions of the Australian Sports Commission.
Requirement to implement the 2021
The World Anti-Doping Code (Code) and the
associated International Standards are the core documents that harmonise
anti-doping policies, rules and regulations within sport organisations and
among public authorities around the world.
The signatories to the Code are sporting organisations that belong to the
Olympic Movement, National Anti-Doping Organisations (NADOs), and
national and international sporting federations outside the Olympic Movement.
Sport Integrity Australia is Australia’s designated NADO and is a
signatory to the Code.
States, including Australia, who have ratified the UNESCO
International Convention against Doping in Sport (Convention) have agreed
to implement arrangements that are consistent with the principles of the Code
as it is in force from time to time.
Article 4 – Relationship of the Convention to the
order to coordinate the implementation, at the national and international
level, of the fight against doping in sport, the States Parties commit
themselves to the principles of the Code, as the basis for the measures
provided for in Article 5 of this Convention. Nothing in this Convention
prevents the States Parties from adopting additional measures complementary to
Article 5 – Measures to achieve the objectives of
In abiding by the obligations contained in this Convention, each
State Party undertakes to adopt appropriate measures. Such measures may include
legislation, regulation, policies or administrative practices.
WADA has been conducting a staged review of the current Code,
Anti-Doping Code 2015 with 2019 amendments, since 2017 (Code Review).
The history and progress of the review is explained in WADA’s Guide
The final stage of the review is now complete and the 2021 Code and
accompanying 2021 Standards were approved at the World Conference on Doping in
Sport in Katowice, Poland on 6 November 2019.
Signatories to the Code, including SIA, must modify their rules to incorporate
the 2021 Code on or before 1 January 2021.
International Standards for different technical and
operational areas within the anti-doping program are developed in consultation
with governments and approved by WADA.
The International Standards contain much of the technical detail necessary for
implementing the Code and adherence to the International Standards is mandatory
for compliance with the Code.
The 2021 Standards comprise revised versions of the six
existing International Standards:
Standard for Code Compliance by Signatories (ISCCS)
Standard for the Prohibited List (The List)
Standard for the Protection of Privacy and Personal Information (ISPPPI)
Standard for Therapeutic Use Exemptions (ISTUE)
Standard for Testing and Investigations (ISTI)
Standard for Laboratories (ISL)
and two new standards:
Standard for Education (ISR)
Standard for Results Management (ISRM).
The significant changes between the current International
Standards and the 2021 Standards are discussed in the Guide for Stakeholders
at pages 20–35.
Significant changes in the 2021 Code
The Guide for Stakeholders identifies 51 significant
changes between the current Code and the 2021 Code.
Some of the notable changes identified in the Guide for Stakeholders are
outlined in Appendix 1 to this Digest. Most of the changes will be implemented
through changes to the Sport Integrity
Australia Regulations 2020 (Regulations), the National Anti-Doping
Scheme (NAD scheme) at Schedule 1 of the Regulations, and by changes to
the anti-doping policies of National Sporting Organisations (NSOs).
However, some amendments to the Act and the NST Act are required to give
effect to the 2021 Code.
Senate Standing Committee for the Selection
The Senate Standing Committee for the Selection of Bills
has twice deferred consideration of whether to refer the Bill to a committee
for inquiry and report.
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills had
no comment on the Bill.
of non-government parties/independents
At the time of writing, no comments on the Bill from non-government
parties/independents could be located.
major interest groups
At the time of writing, no comments on the Bill from major
interest groups could be located.
The Explanatory Memorandum states that the Bill has no
financial impact on the Commonwealth.
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.
Compatibility of the 2021 Code with international
human rights norms is discussed below under the heading ‘Key issues and
Parliamentary Joint Committee on
The Parliamentary Joint Committee on Human Rights (PJCHR)
noted that the Bill would expand the circumstances in which the Chief Executive
Officer of Sport Integrity Australia (CEO) can publicly disclose
protected information, which may potentially reveal highly personal information
about a person (such as their use of medication, or intersex status if relevant
to a sports doping allegation) and has sought the Minister’s advice in
relation to whether the measure: is aimed at a legitimate objective, is a
proportionate limitation on the right to privacy, and what type of information
is likely to be disclosed.
At the time of writing, the Minister’s response had
been received, but not yet published, by the PJCHR.
Expanded definition of athlete
Item 1 repeals the definition of athlete
in section 4 of the Act and substitutes a definition which includes persons who
competed in sport within the last six months. The purpose of the proposed
definition is to remove doubt that athlete could be interpreted
narrowly to only include those persons who currently compete in sport.
The proposed definition will ensure that ‘an
anti-doping organisation can continue to investigate a possible ADRV against an
athlete for a limited period after the athlete has stopped competing’.
As the Explanatory Memorandum acknowledges, this change is
not required by the Code revisions.
Expansion of the NAD scheme to
Obligations under the 2021 Code
The Code Review identified a gap in anti-doping
arrangements when a systemic, state-sponsored, doping program was uncovered in
Russia where many of the individuals who facilitated the scheme were outside
the jurisdiction of the Code. It recognised that persons such as board members,
directors, officers, and specified employees of anti-doping organisations, as
well as delegated third-party testing agencies, who are outside the definition
of ‘Athlete’ and ‘Support person’ in the
current Code may play pivotal roles in facilitating doping in sport.
The term non-participant is not defined or used in the 2021
Code. ‘Participant’ is defined in the 2021 Code
as any ‘Athlete’ or ‘Athlete Support Person’.
The 2021 Code generally refers to ‘athlete or other person’
where a provision is designed to also cover non-participants. While ‘Person’
is used in the current Code, the 2021 Code uses the term more often and
provides more detail through the addition of examples:
Anti-doping rules, like competition rules, are sport rules
governing the conditions under which sport is played. Athletes, Athlete Support
Personnel or other Persons (including board members, directors, officers,
and specified employees, and Delegated Third Parties and their employees)
accept these rules as a condition of participation or involvement in sport and
shall be bound by these rules.
Each Signatory shall establish rules and procedures to ensure that all
Athletes, Athlete Support Personnel or other Persons under the authority of the
Signatory and its member organizations are informed of and agree to be bound by
anti-doping rules in force of the relevant Anti-Doping Organizations.)
The 2021 Code extends the operation of anti-doping
rule violations to other persons in Article 10.2.3. Article 21.3 of the 2021
Code also imposes specific roles and responsibilities on other persons
subject to the Code:
be knowledgeable of and comply with all anti-doping policies and rules adopted
pursuant to the Code and which are applicable to them.
disclose to their National Anti-Doping Organization and International
Federation any decision by a non-Signatory finding that they committed an
anti-doping rule violation within the previous ten (10) years.
cooperate with Anti-Doping Organizations investigating anti-doping rule
The 2021 Code includes a variety of obligations on
different stakeholders in relation to non-participants:
International Olympic Committee (Article 20.1.7), the International Paralympic
Committee (Article 20.2.7), each international federation (Article 20.3.4), each
National Olympic Committee and National Paralympic Committee (Article 20.4.8),
each NADO (Article 20.5.10), and major event organisation (Article 20.6.5), and
WADA itself (Article 20.7.12) must require all of its board members, directors,
officers and other employees involved in anti-doping activity to be bound by
the 2021 Code as ‘Persons’
are obliged to create rules, regulations or policies for persons bound by the
Code by virtue of being involved in ‘Doping Control’ (Article
22.3). There are particular obligations to prevent involvement of persons
serving periods of ineligibility, or who would have been disqualified if
Code-compliant rules had been applicable to those persons (Article 22.4).
Aligning the NAD scheme to the 2021
Section 2.04 of the NAD scheme requires a sporting
to have in place an anti-doping policy, approved by the CEO, that complies with
the mandatory provisions of the Code.
Division 2 of Part 2 of the Act identifies what must be in
the NAD Scheme. Subsection 13(1) lists matters the NAD scheme must deal with. Item
6 adds proposed paragraph 13(1)(ab) which requires that the NAD scheme
provide that all non‑participants, or that one or more specified classes
of non‑participants, are subject to the NAD scheme.
Item 2 inserts a new definition of non‑participant
in section 4 of the Act:
non‑participant means a person:
is neither an athlete nor a support person; and
is bound by a sporting administration body’s anti‑doping policy.
The CEO is authorised by section 10 of the Act to amend
the NAD scheme. Item 4 inserts proposed subparagraph 10(1)(a)(iia)
which will allow the CEO to extend the NAD scheme to any non-participant:
The CEO may, by legislative instrument, amend the NAD scheme, so long as:
amendment relates to any or all of the following matters: …
classes of non‑participants who are subject to the NAD scheme;
The Explanatory Memorandum suggests that the ‘classes
of non-participant’ which the CEO may prescribe may include board
members, directors, officers, and specified employees of sporting
administration bodies, as well as delegated third-party testing agencies.
This is consistent with the obligations of different stakeholders under the 2021
Code. However, the Bill does not limit the class or type of non‑participant
to those examples. Any class of person who is bound by a sporting
administration body’s anti‑doping policy, but is neither an athlete
nor an athlete support person, could be made subject to the NAD scheme.
It will be possible for the CEO to define the classes of
non-participant, more broadly than required by the 2021 Code and apply
the anti-doping rules to those classes of non-participant. However, there are
some limits to the CEO’s discretion:
person must be bound by a sporting organisation’s anti-doping policy and
provisions could not authorise the NAD scheme being extended beyond the area of
operation of the object of the Act at section 3A:
The object of this Act is to establish Sport Integrity
Australia to prevent and address threats to sports integrity and to coordinate
a national approach to matters relating to sports integrity in Australia, with
a view to:
fair and honest sporting performances and outcomes; and
positive conduct by athletes, administrators, officials, supporters and other
stakeholders, on and off the sporting arena; and
a safe, fair and inclusive sporting environment at all levels; and
the reputation and standing of sporting contests and of sport overall.
The Explanatory Memorandum notes that the obligation to
require an employee of a sporting administration body to be bound by an
anti-doping policy is subordinate to other applicable laws that may preclude
such a requirement.
It does not give any examples of laws which might have that effect.
The CEO already has power to define the classes of
athletes and support persons subject to the NAD scheme and has done so in the Sport Integrity
Australia Regulations 2020:
1.06 Classes of athletes
subject to the NAD scheme
who compete in sport are subject to the NAD scheme if the sport has an anti‑doping
A person who competes in sport and who is subject to the NAD scheme is an athlete (see
section 4 of the Act).
anti‑doping rules apply to all athletes.
following classes of athletes may be tested by the CEO under the NAD scheme:
athletes in the CEO’s registered testing pool;
in the CEO’s domestic testing pool;
who compete in international events;
who compete in national events;
for whom the CEO is required or permitted to test under a contract or an anti‑doping
in the registered testing pool of an International Sporting Federation, or a
national anti‑doping organisation or regional anti‑doping
who are present in Australia at the time of the testing;
serving a period of ineligibility.
Classes of support persons subject to the NAD scheme
Support persons involved in a sport with an anti‑doping policy are
subject to the NAD scheme.
anti‑doping rules apply to all support persons subject to the NAD scheme.
Compatibility of the 2021 Code with
international human rights norms
WADA asked an international legal expert, Jean-Paul Costa,
a former President of the European Court of Human Rights (ECHR), to
comment on the compatibility of the proposed 2021 Code with
international human rights norms. Costa’s expert legal conclusion was that
the 2021 Code, now that modifications had been made to address some
points he had previously raised, did not create any serious human rights issues.
Costa noted that the body of sport law (the lex
sportiva) has been in somewhat of a vacuum in relation to human rights in
the past. However, he went on to observe that the current Code has now been recognised
by the ECHR as a real source of law and the Court of Arbitration for Sport (CAS)
has been subject to the judicial supervision of the ECHR with generally
positive conclusions, so sport law has now intersected with human rights law.
[T]his development is and will be irreversible. The fight
against doping and fundamental rights is reconcilable and must and can be
reconciled. The draft 2021 Code is now standing on safer legal ground …
In an ideal world, one can always improve certain drafting of
articles and add certain comments specifically for the purpose of enlightening
the stakeholders but also the lawyers, the disciplinary bodies and obviously
the Courts, beginning with the CAS. However, subject to these few reservations,
my conclusion is that the provisions of the draft Code examined here are, as a
whole in compliance with fundamental rights.
Consequential amendments to NST Act
The classes of persons who can apply to the National Sports
Tribunal for arbitration of a dispute under an anti-doping policy are currently
limited to an athlete or support person. The consequential amendments in Part 2
of Schedule 1 ensure that non-participants who are subject to an anti-doping
policy will also be permitted to apply for arbitration in the National Sports
Appendix 1 – Summary of some of the significant changes
implemented by the 2021 Code
Increased emphasis on health and
fundamental rationale for the Code has been amended to reflect an increased
emphasis on the importance of athlete health and to provide a better statement
of the ethical foundation of the Code:
Anti-doping programs are founded on the intrinsic value of
sport. This intrinsic value is often referred to as “the spirit of
sport”: the ethical pursuit of human excellence through the dedicated
perfection of each Athlete’s natural talents.
Anti-doping programs seek to protect the health of Athletes
and to provide the opportunity for Athletes to pursue human excellence without
the Use of Prohibited Substances and Prohibited Methods. Anti-doping programs
seek to maintain the integrity of sport in terms of respect for rules, other
competitors, fair competition, a level playing field, and the value of clean
sport to the world.
The spirit of sport is the celebration of the human spirit,
body and mind… The spirit of sport is expressed in how we play true.
Doping is fundamentally contrary to the spirit of sport.
identification of athletes’ rights in the Code has been specifically
included as part of the fundamental rationale for the Code. The 2021 Code
also continues to provide in Article 20.7.7 that one of WADA’s
responsibilities will be, in coordination with WADA’s Athlete Committee,
to approve a document that compiles in one place those athletes’ rights
that are specifically identified in the Code and also identifies any other
agreed upon principles of best practice with respect to the overall protection
of athletes’ rights in the context of anti-doping.
Elevated importance of technical
Documents have been enumerated as one of the main elements of the World
Anti-Doping Program. Technical Documents relate to mandatory technical
requirements for implementation of 2021 Standards. Technical Documents are
mandatory and become effective immediately upon publication by WADA.
New and amended ADRVs and
2.11 creates a new ADRV of threatening another person to discourage that person
from the good faith reporting to authorities of information relating to an
ADRV, non-compliance with the Code or other doping activity, or to retaliate
against another person for doing so.
have been a number of changes related to acts of tampering with samples.
‘Tampering’ is now a defined term.
The acts of falsifying documents submitted to an ADO and procuring false
testimony from witnesses have been moved up from the comment and specifically
included in the definition of ‘Tampering’.
The sanction provided in the 2015 Code for Refusal and Tampering
Violations was four years ineligibility; however, there may be exceptional
circumstances where a lesser sanction is justified. Article 10.3.1 has been
amended to provide that, in exceptional circumstances, the period of
ineligibility shall be in a range of two to four years.
2.10 prohibiting association in a sport-related capacity with an athlete
support person who is serving a period of ineligibility, has been amended to eliminate
the advance notice requirement and instead, place the burden on the ADO to
demonstrate that the athlete knew that the athlete support person was
10.2.3 clarifies the definition of ‘Intentional’ so it is
consistent with CAS decisions. ‘Intentional’ means that the person
intended to commit the act which forms the basis of an ADRV regardless of
whether the person knew that such act constituted a violation of the Code.
10.4 reintroduces the concept of ‘Aggravating Circumstances’ to deal
with special or exceptional circumstances where an additional period of
ineligibility from zero to two years is appropriate.
rules for dealing with multiple violations have been changed to better deal
with a prior undiscovered ADRV. If the ADO can establish that a prior
undiscovered ADRV occurred more than 12 months before the first sanctioned
violation, then the later-discovered violation shall be punished as a first
violation and run separately following the period of ineligibility for the
previously discovered violation. This preserves the principle that a person
does not get a second strike until he or she has been notified of the first
strike, but maintains additional consequences for separate violations. In
Article 10.9.1, the formula for calculating the period of ineligibility for a
second ADRV has been modified to make the result more proportionate and not so
dependent on the order in which the two violations occurred.
Treatment of street drugs
for street drugs remain a significant problem under the Code. Cocaine is a
particular problem. WADA’s List Expert Group will identify those
substances on the Prohibited List which are often abused in society outside of
sport as ‘Substances of Abuse’. Article 10.2.4.2 provides that,
where the athlete can establish that in-competition use of a substance of abuse
was unrelated to sport performance, then the use shall not be considered ‘intentional’
for purposes of the four-year period of ineligibility for intentional use
provided in Article 10.2.1.
Trace amounts of prohibited
ability of WADA-accredited laboratories to detect miniscule quantities of
prohibited substances in athlete samples has, in some cases, improved one
hundred to one thousand fold over the last decade. This increased analytical
sensitivity has made it easier to detect the tail end of the excretion curve
from the intentional use of a prohibited substance. However, it has also
increased the likelihood that an Adverse Analytical Finding (AAF) may
result from contamination of a supplement or other product. The 2021 Code
implements several measures to deal with the increasing capacity of
laboratories to find very small traces of prohibited substances:
- It permits
WADA to develop a list of prohibited substances, other than endogenous
substances, which may be reported as an Atypical Finding (ATF) and
trigger an investigation. This permits a more nuanced treatment of findings
when trace elements are found of substances that are known to occur as
environmental contaminants; for example, meat contamination in Mexico and China
can cause trace levels of clenbuterol to appear in an athlete's urine.
has always been the case under the Code that some substances are prohibited at
all times, and other substances are only prohibited in-competition. The general
rule has been that if a substance appears in an athlete's sample in an
in-competition test, it is an AAF; it does not matter when the substance was
taken. The consequences of this approach have become increasingly problematic
as WADA-accredited laboratories have developed the ability to detect ever more
minute quantities of prohibited substances in an athlete's urine in
in-competition samples. In some cases, these substances were obviously used
out-of-competition and could not possibly have had an in-competition effect. To
address this problem, a special working group appointed by WADA is considering
reporting thresholds for certain substances which are not prohibited
out-of-competition but which may appear in trace amounts in in-competition
current Code provides that in order for an athlete to receive a reduced
sanction on account of product contamination, the athlete must be able to
identify the contaminated product which he or she consumed which caused the AAF
(current Code, Article 10.5.1.2 in combination with the definition of ‘No
Significant Fault or Negligence’). However, there are cases where the AAF
involves a very low level of a prohibited substance which is known to occur in
contaminated products, but the athlete is not able to specifically identify the
product which caused the AAF. In some of these cases, the AAF is much more
likely the result of product contamination than the tail end of an excretion
curve, but under the current rule no reduction of sanction is permitted. Rather
than modify the rule in the current Code related to contaminated products, a
better approach is to consider raising the reporting limits for those
prohibited substances which are known contaminants. A special WADA working group
is working on an approach to do this.
of the detail currently found in Article 7 has been moved into the new
International Standard for Results Management.
Important principles of results management have been retained in Article 7. Currently,
some ADOs limit their decisions to a particular geographic area so that other
organizations must initiate their own proceedings to declare a person
ineligible to participate in their events. Article 7.5.1 has been added to make
clear that Article 7, together with new Article 15, gives the imposition of
consequences by a Signatory worldwide effect in all sports without further
10.6.3 (Prompt Admission) and Article 10.11.2 (Timely Admission) have been
eliminated and replaced with a new Article 10.8. Article 10.8.1 provides that
where an athlete or other person who is facing an asserted period of
ineligibility of four or more years admits the violation and accepts the
asserted period of ineligibility within 20 days of notice of the ADRV charge,
then there will be a reduction of one year from the otherwise applicable period
of Ineligibility. This provides some incentive for the individual to admit the ADRV
and saves the ADO the cost of a hearing without being too lenient. Article
10.8.2 provides an opportunity for the ADO, the athlete or other person and
WADA to enter into a Case Resolution Agreement in which the applicable period
of ineligibility can be agreed upon based on the facts of the case. The
reduction possibilities permitted in a Case Resolution Agreement are not
something that a hearing body is permitted to impose or review. Case Resolution
Agreements are not appealable by anyone. As in the case of ‘Substantial
Assistance’, an athlete who is negotiating a Case Resolution Agreement is
entitled to tell his or her story under a ‘Without Prejudice Agreement’.
More rigorous standards for fair hearings
8 now requires that the hearing panel be ‘Operationally Independent’
from the investigation, the decision to change and the prosecution of the case.
‘Operational Independence’ has been made a defined term. This
change was made in response to significant concern that the ‘impartial
hearing panel’ requirement in Article 8.1 was not being followed by all
Signatories where, for example in some cases, the same individual is involved
in the investigation, the decision to charge an ADRV and the hearing on whether
a violation has been committed.
13.2.2 makes clear that where the structure of the national level appellate
body is not fair, impartial, and operationally and institutionally independent,
the athlete or other person shall have the right of appeal to CAS. ‘Institutional
Independence’ is a defined term.
13.1.1 makes clear that any party to an appeal may submit evidence, legal
arguments and claims which were not raised in the first hearing so long as they
arose from the same cause of action or same general facts or circumstances
raised in the first instance hearing. An example has been added in the comment
to this Article to further clarify the point that a different ADRV charge may
be asserted on appeal based on the same underlying facts.
Public disclosure of ADRVs
comment to Article 14.3.2 has been added to make clear that failure to make a
public disclosure under 14.3.2 will not be considered a Code Compliance
Violation where it is prohibited by national law. A new provision, Article
14.3.3, has been added which provides that, after the initial hearing has been
completed or waived, the ADO conducting results management may make public its
determination or the hearing panel decision and may comment publicly on the
matter. This has always been the case, but the right to do so has not been
clearly spelled out in the Code.
Protected persons and minors
the current Code, more flexible sanctioning rules are applied to minors. The 2021
Code makes two important changes. First, these more flexible sanctioning
rules are applied to an expanded class of athletes described as ‘Protected
Persons’ which also includes individuals who, for reasons other than age,
have been determined to lack legal capacity under applicable national
legislation. Second, elite 16 and 17 year old athletes are not included in the
definition of ‘Protected Persons’ because, considering their sport
experience necessary to achieve that level of performance, they should receive
the same treatment as the other elite athletes against whom they are competing.
These elite 16 and 17 year old athletes would not benefit from the special
flexible sanctioning rules; however, as minors, Article 14.3.7 would excuse
them from the mandatory Public Disclosure rule in Article 14.3.2.
new category of ‘Recreational Athletes’ benefits from more
flexibility in the imposition of consequences. The determination of who is a
recreational athlete is left to the NADO of the athlete’s country, but
must not include any athlete who, in the prior five years has been: an
international-level or national-level athlete; representing a country in an
international event in an open category; or been in a Registered Testing Pool
or other whereabouts pool of an International Federation or NADO. ‘Recreational
Athletes’ benefit from the same flexibility in sanctioning as protected
Covenant on Civil and Political Rights, done in New York on 16 December
1966,  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, November 2017.
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. Australia signed the Convention
on 1 February 2019 but, as at 7 September 2020, it is not yet in
force for Australia: Council of Europe, ‘Chart
of signatures and ratifications of Treaty 215’, Council of Europe
Treaty Office website.
Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019,
Bills digest, 61, 2019–20, Parliamentary Library, Canberra, 29 November
2019. pp. 4, 6.
Anti-Doping Agency (WADA), ‘The Code’,
Anti-Doping Agency (WADA), ‘Code signatories’,
have particular roles and responsibilities under the Code, see Article 20.5 of
the 2021 Code at pp. 129–131.
4 and 5 of the International
Convention Against Doping in Sport (as amended from time to time), done
at Paris 19 October 2005,  ATS 10 (entered into force
generally and for Australia 1 February 2007).
2021 Code Review Process is explained at ‘2021
Code Review’ on the WADA website.
World Anti-Doping Code and International Standard Framework Development and
Implementation Guide for Stakeholders, (Guide for stakeholders),
WADA, 18 October 2019, pp. 1–3.
Memorandum, Sport Integrity Australia Amendment (World Anti-Doping Code
Review) Bill 2020, p. 2.
25.1.4 of the 2021
existing standards can be found on the WADA website at ‘International
to the 2021 Code at page 10.
anti-doping code international standard: Code compliance by signatories 2021,
Montreal, WADA, .
anti-doping code international standard: prohibited list, January 2020,
Montreal, WADA, .
anti-doping code international standard: protection of privacy and personal
information 2021, Montreal, WADA, .
anti-doping code international standard: therapeutic use exemptions 2021,
Montreal, WADA, .
anti-doping code international standard: testing and investigations 2021,
Montreal, WADA, .
anti-doping code international standard: laboratories 2021, Montreal,
anti-doping code international standard: education 2021, Montreal,
anti-doping code international standard: results management 2021,
Montreal, WADA, .
Guide for stakeholders, op. cit., pp. 20–35.
Memorandum, op. cit., p. 2.
Standing Committee for the Selection of Bills, Report,
7, 2020, The Senate Canberra, 27 August 2020; Senate Standing Committee for the
Selection of Bills, Report,
8, 2020, The Senate Canberra, 3 September 2020.
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 11, 2020, The Senate, Canberra, 2 September 2020, p. 16.
Memorandum, op. cit., p. 2.
Statement of Compatibility with Human Rights can be found at pages 3–5 of
the Explanatory Memorandum to the Bill.
Joint Committee on Human Rights, Human
rights scrutiny report, 11, 2020, 24 September 2020,
Joint Committee on Human Rights, ‘Ministerial
responses’, Australian Parliament website.
Memorandum, op. cit., pp. 2, 7.
Memorandum, op. cit., p. 7.
Memorandum, op. cit., p. 4.
Memorandum, op. cit., pp. 7–8.
expansion of the Code to cover ‘other persons’ can be seen in the
‘redline version’ of the 2021 Code which marks the changes
from the current Code: WADA, World
Anti-Doping Code 2021 (redline comparison to 2015 Code as amended in 2018),
6 from 2021 Code: Where the Code requires a Person other than an Athlete
or Athlete Support Person to be bound by the Code, such Person would of course
not be subject to Sample collection or Testing, and would not be subject to an
anti-doping rule violation under the Code for Use or Possession of a Prohibited
Substance or Prohibited Method. Rather, such Person would only be subject to
discipline for a violation of Code Articles 2.5 (Tampering), 2.7 (Trafficking),
2.8 (Administration), 2.9 (Complicity), 2.10 (Prohibited Association) and
2.11 (Retaliation). Furthermore, such Person would be subject to the additional
roles and responsibilities according to Article 21.3. Also, the obligation to
require an employee to be bound by the Code is subject to applicable law.
2021 Code, p. 17.
4 of the Act defines sporting administration body very broadly.
funding for sporting organisations may be linked to having an approved
anti-doping policy. See SportAUS, ‘Recognition
of National Sporting Organisations’, SportAUS website, n.d.
Memorandum, op. cit., p. 8.
3A of the Sport Integrity Australia Act 2020.
Memorandum, op. cit., p. 8.
opinion 2019 (expert opinion) on the World Anti-Doping Code, WADA, 26
rationale for the world anti-doping code’, preamble to the 2021 Code
at p. 13.
Guide for stakeholders, op. cit., p. 5.
documents’, preamble to the 2021 Code, p. 11.
Guide for stakeholders, op. cit., p. 7; Article 2.11 of the 2021 Code,
pp. 6–7; Appendix 1 ‘Definitions’, 2021 Code, p. 176.
p. 11; Article 10.3.1 of the 2021 Code, p. 67.
p. 10. Article 10.2.3 of the 2021 Code, p. 65.
Guide for stakeholders, op cit., p. 12.
anti-doping code international standard: results management 2021,
Montreal, WADA, .
Guide for stakeholders, op cit., pp. 9–10.
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