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F2012L02385
Portfolio: Regional
Australia, Local Government, Arts and Sport
Committee view
2.1
The committee seeks clarification from the Minister for Sport on the
potential rights impacts of this instrument to assist its consideration of the
instrument's compatibility with human rights.
Overview
2.2
This instrument amends the Australian Sports Anti-Doping Authority
Regulations 2006 (made under the Australian Sports Anti-Doping Authority
Act 2006), to clarify the intended role of the Anti-Doping Rule
Violation Panel (the Panel). It sets out the powers of the Panel in making an
adverse analytical finding against an athlete.
2.3
This follows from a recent decision of the Administrative Appeals
Tribunal[1]
that found that the Panel was a hearing body within the meaning of article 8 of
the World Anti-Doping Code and its role was therefore to make a finding that an
anti-doping rule violation had been committed.
Compatibility with human rights
2.4
The statement of compatibility provides an overview of the instrument
and states that it does not engage any human rights. However, these amendments
appear to engage the right to privacy under article 17 of the International
Covenant on Civil and Political Rights (ICCPR) and may engage the right to a
fair hearing under article 14 of the ICCPR.
2.5
In particular, regulations[2]
that provide that the Panel may make entries on the Register of Findings about an
athlete, including their name, date of birth, and the nature of the finding
against them in relation to an anti-doping rule violation, engages, and appears
to limit, the right to privacy. Regulations that enable information to be made available
to relevant sporting organisations and 'details of other parties that will be
notified on the entry on the Register' also appear to limit this right.
Information is needed to explain if this limitation is reasonable, necessary
and proportionate to achieve a legitimate aim.
2.6
Further, it is unclear what effect a Panel's decision of an adverse
analytical finding has in relation to an athlete. The explanatory memorandum
states that the legislative intent was:
...that the role of the Panel is to make a finding that an athlete
or support person had possibly committed an anti-doping rule violation, while
the role of the sport is to determine whether an anti-doping rule violation has
in fact been committed.[3]
2.7
However, it is unclear what effect the Panel's finding has on the ultimate
determination, and raises issues about whether a person has been accorded a
fair hearing under article 14 of the ICCPR.
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