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This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details

Passage History

Australian Sports Commission Amendment Bill 1999

Date Introduced: 2 June 1999

House: House of Representatives

Portfolio: Industry, Science and Resources

Commencement: 28 days after Royal Assent, or immediately after the Customs Legislation Amendment Act 1999 commences, whichever is later.

Purpose

To provide for the exchange of information between the Australian Sports Commission and the Australian Customs Service in relation to the importation or attempted importation of substances that can be used to:

• enhance sporting performance, or
• conceal the use of performance enhancing drugs.

Background

The Government's 1998 election policy on sport and recreation undertook to 'ensure an increased role by the Australian Customs Service in the detection of importations of prohibited substances.(1) On 13 May 1999 the Minister for Sport and Tourism, the Hon. Jackie Kelly MP, released a new national strategy on drugs in sport which noted that amendments to the legislation covering the Australian Customs Service (ACS) would enable the agency to more readily exchange information with the Australian Sports Commission (Sports CommissionASC) and the Australian Sports Drug Agency (ASDA).(2) The proposed amendments in relation to the ACS are contained in the Customs Legislation Amendment Bill (No. 1) 1998. Their stated purpose is to improve the exchange of intelligence about illicit drugs between agencies.(3) The Customs Legislation Amendment Bill was examined by the Senate Legal and Constitutional Legislation Committee which reported in March 1999. In relation to information disclosure, the Committee cited evidence given by the Law Council regarding its concerns about the Bill's provisions in respect of various disclosures:

The Committee recommended that the Bill pass without amendment, stating that these matters should be addressed through appropriate privacy legislation.(5) The Senate has not yet considered the Bill.

Amendments in relation to the ASDA's powers in respect of drug use and importation are contained in the Australian Sports Drug Agency Amendment Act 1999.

Problems and Issues

Under the terms of the Australian Sports Commission Amendment Bill, the CEO of Customs can authorise the disclosure of information to the Sports CommissionASC if:

• the CEO is satisfied that the information relates to the importation or attempted importation of a 'sports substance', and
• at least one of the following three conditions is satisfied:

A 'competitor' is defined by reference to the definition employed in section 2A of the Australian Sports Drug Agency Act 1990. This definition essentially encompasses any person who competes, or who has the potential to compete in international sporting competitions. 'Sports substance' is defined in the Bill as a performance enhancing drug or a substance capable of concealing the use of a performance enhancing drug.

The Bill appears to assume that it is self-evident as to what constitutes a 'performance enhancing drug', as it contains no definition of this term. There are a number of possible difficulties with this approach. For example:

• it cannot be assumed that because a sporting organisation proscribes a substance then it is a 'performance enhancing drug'. Some sports prohibit the use of social drugs that do not enhance performance (cannabis, cocaine etc) and not all sports proscribe the same drugs
• some legal substances are said to enhance performance if consumed in certain quantities (eg. caffeine), but the dividing line between acceptable and non-acceptable usage is necessarily arbitrary
• some drugs will enhance performance in some sports, but not in others. For example, anabolic steroids could improve performance in weightlifting, but not shooting.

The broad definition of 'competitor', together with the lack of precision regarding the definitions of performance enhancing drugs, could lead to infringements of an individual's rights to privacy and the presumption of innocence. For example, an Australian sportsperson returning from a private overseas holiday could be reported to the ASCSports Commission for possessing a legal substance for perfectly legitimate purposes (eg. Sudafed or Demazin tablets). It is not necessary for the person to have a contractual relationship with the ASCSports Commission, or to be participating in a sporting event, or to have received Commonwealth assistance. If a national sporting organisation has informed ASDA that the person has the potential to represent Australia in international sporting competition, then they are defined as a 'competitor' and are subject to the provisions of this Bill.

The ASCSports Commission is responsible for administering the Commonwealth's programs of assistance for elite sport, and thus has considerable influence over the development of young athletes and their career prospects. Under the provisions of this Bill it will become a conduit of information between the Customs Service and national sporting organisations. The information it handles will not deal with confirmed drug cheating, but with the possibility of such offences being committed by individual sports persons. The Sports Commission is an administrative body with no investigative or judicial functions or experience. It might be argued that the ASCSports Commission is not the most appropriate body to deal with such presumptive information because of the possibility of an athlete acquiring an unjustified reputation as a drug cheat within the ASCSports Commission and within sporting organisations to the detriment of their future career.

On this view, it is arguable that ASDA would be a more appropriate body for the functions provided for in this Bill.

Main Provisions

Clause 2 provides that the Bill commences 28 days after it receives Royal Assent, or immediately after the commencement of the Customs Legislation Amendment Act 1999. The Bill is dependent on the enactment of the Customs Legislation Amendment Bill (No. 1) 1998 [1999] which proposes to amend the official secrecy and disclosure provisions in the Customs Administration Act 1985 to allow intelligence sharing in relation to drug trafficking.

Schedule 1-Australian Sports Commission Act 1989

Item 1 amends the Australian Sports Commission Act 1989 so that the ASCSports Commission's functions include co-operating with national and international sporting organisations to foster a sporting environment free from the unsanctioned use of performance enhancing drugs and doping methods.

Item 2 inserts a new Part VIIA in the Australian Sports Commission Act, to regulate the disclosure and use of 'protected information', which is defined in proposed section 51A as 'information disclosed to the Commission under section 16 of the Customs Administration Act 1985'.

New section 51A defines various terms.

New section 51A defines 'anti-doping policy' as any current written policy of the Commission or a sporting organisation in respect of performance enhancing drugs (not defined) or doping methods. There are no criteria specified in relation to the content of anti-doping policies.

New section 51A defines 'Commission official' to include a consultant engaged by the ASCSports Commission, so that consultants will be subject to new section 51D.

New section 51A defines 'doping method' to include the manipulation or substitution of any human biological fluid or tissue, or any human breath, in a manner capable of concealing the use of a performance enhancing drug by the person concerned. It also includes the use of a substance in a manner that is capable of concealing the use of a performance enhancing drug by the person concerned.

New section 51A defines 'protected information' as information disclosed to the ASCSports Commission under section 16 of the Customs Administration Act 1985. If the amendments to that Act discussed above are passed, then 'protected information' will be defined in new section 16(1A) as information which directly or indirectly comes to the knowledge or into the possession of an 'authorised officer' during the performance of his or her duties.(6) The proposed amendments would allow disclosures of this information to be made where authorised by the Chief Executive Officer of Customs.(7) New subsection 16(3F) would have the effect that 'a person can make a record of or disclose protected information if he or she believes on reasonable grounds that it is necessary to do so to avert or reduce a threat to health or life'(8).

New section 51A defines 'sporting organisation' as an organisation of a particular country, or part of a country, or an international organisation that controls sports or sporting events; organises or administers sports or sporting events; accredits people to take part in sporting competition; provides teams to compete in sporting competition; or trains, or provides finance for people to take part in sporting competition. The definition appears wide enough to encompass virtually any professional or amateur sporting body. In contrast, the definition of 'competitor' adopted in the Bill looks to whether a person competes or has potential to compete in international sporting competitions.

Protected information that can be disclosed

New section 51B ensures that the Customs CEO does not authorise the disclosure of protected information to the ASCSports Commission unless satisfied that:

• the information relates to the importation or attempted importation of a sports substance, and at least one of the following is the case:

New section 51C provides that for the purposes of subsection 16(9) of the Customs Administration Act 1985 (as it will stand if the Customs Legislation Amendment Bill is enacted), the determining by the Executive Director of the ASCSports Commission of whether an anti-doping policy is likely to have been breached is taken to be a permissible purpose. It is not clear whether new section 51C is intended to operate as a deeming provision, or whether the Executive Director's purposes are considered to relate to a particular permissible purpose, for example the 'protection of public health' under proposed paragraph 16(9)(e) of the Customs Administration Act. In the absence of new section 51C of the Australian Sports Commission Act, the permissible purposes in proposed subsection 16(9) of the Customs Administration Act might not be wide enough to encompass legal drugs which enhance performance but do not pose a risk to a person's health.

New section 51D provides that a ASCSports Commission official must not disclose 'protected information' to a person who is not a ASCSports Commission official without authorisation. It clarifies that a ASCSports Commission official is a Commonwealth officer for the purposes of section 70 of the Crimes Act 1914, which imposes secrecy obligations on Commonwealth officers.

New section 51E covers disclosure and use of protected information by the ASCSports Commission. If the Executive Director is satisfied that an anti-doping policy of a sporting organisation is likely to have been breached and protected information is likely to assist the organisation to determine whether to take action in accordance with its anti-doping policy, the Executive Director may authorise disclosure of the protected information on the condition that the organisation has provided written undertakings that:

• they will only use the information to determine whether action should be taken in accordance with their anti-doping policies; and
• they will not disclose the information to any person who is not a party (or acting on behalf of a party) to the undertaking.

The Executive Director must be satisfied that disclosing the information would not contravene any terms of the authorisation under which the protected information was disclosed to the ASCSports Commission. New subsection 51E(3) allows the Executive Director to specify the manner in which or the conditions under which the disclosure is to be made.

This provision is quite broad in its scope, in particular as the definition of 'sporting organisation' in the Bill is reasonably wide, and appears to apply to voluntary sporting organisations.

New section 51F sets out the circumstances in which the Executive Director of the ASCSports Commission may authorise the disclosure of information to the Australian Customs Service. The Executive Director must be satisfied that an anti-doping policy is likely to have been breached and information about the sporting person is likely to assist the Customs CEO to determine if the importation or attempted importation is illegal and a competitor is responsible for it, and the substance is for use by competitors.

Endnotes

2. 'A Winning Advantage', p.5. This election policy document is available from http://liberal.org.au/ARCHIVES/election98/policy/sport/sport.html.

3. Tough on Drugs in Sport Australia's Anti-Drugs in Sport Strategy 1999-2000 and beyond, p.9. This document is available at http://www.isr.gov.au/sport/tough_on_drugs_in_sport/.

4. Second Reading Speech, Customs Legislation Amendment Bill (No.1) 1998, Current Senate Hansard, 25 November 1998, p.384.

5. Senate Legal and Constitutional Legislation Committee, Consideration of legislation referred to the Committee, Customs Legislation Amendment Bill (No. 1) 1998, March 1999, p. 9, citing the Transcript of Evidence, Law Council of Australia, p. 61.

6. Ibid.

7. Jennifer Norberry, 'Customs Legislation Amendment Bill (No. 1) 1998', Bills Digest No. 65, 1998-99, Department of the Parliamentary Library.

8. See Item 1 of Schedule 2 of the Customs Legislation Amendment Bill (No. 1) 1998 which proposes to amend section 16 of the Customs Administration Act 1985 in relation to disclosures authorised by the Chief Executive Officer of Customs. This is discussed further in Bills Digest No. 65.

9. Jennifer Norberry, 'Customs Legislation Amendment Bill (No. 1) 1998', Bills Digest No. 65, 1998-99, Department of the Parliamentary Library.

Contact Officer and Copyright Details

Kim Jackson & Fiona Walker
29 June 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1999

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1999.

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