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Australian
Sports Anti-Doping Authority Amendment Bill 2013
Introduced into the Senate on 6
February 2013
Portfolio: Sport
Committee view
1.1
The
committee seeks clarification from the Minister as to whether the minimum
guarantees in criminal proceedings apply to the bill's new civil penalty
provisions and, if so, whether the new provisions allowing criminal proceedings
to commence regardless of whether a civil penalty order has been made for the
same conduct, are consistent with the right not to be tried or punished twice
for the same offence. It also seeks further clarification on the application of
the bill's provisions on the right not to incriminate oneself.
1.2
The
committee seeks further information from the Minister as to whether provisions
compelling any person, including the family member of an athlete, to answer
questions or produce information or documents, engages the right not to be
subject to arbitrary or unlawful interference with the family.
1.3
In
addition, the committee seeks further information as to whether restrictions on
members of the Australian Sports Drug Medical Advisory Committee on whom they
may liaise with, and what discussions they may contribute to, are consistent
with the rights to freedom of expression and freedom of association.
Overview
1.4
This
bill seeks to amend the Australian Sports Anti-Doping Authority Act 2006
to strengthen the Australian Sports Anti-Doping Authority's (ASADA)
investigation functions and to enhance information sharing arrangements with
other government agencies. In particular, it provides the Chief Executive
Officer (CEO) of ASADA the power to issue a disclosure notice compelling
persons of interest to assist ASADA's investigations. Failure to comply with
the notice subjects the person to a civil penalty. It also introduces a number
of provisions relating to the enforcement of the civil penalty.
Compatibility with
human rights
1.5
This
bill is accompanied by a self-contained statement of compatibility which states
that the bill engages the following rights: the right to enjoy and benefit from
culture, the right to protection from arbitrary interferences with privacy, the
right to the presumption of innocence and the right to be free from
self-incrimination.[1]
It concludes that the bill is compatible with human rights.
1.6
The
committee reiterates its view that statements of compatibility are essential to
the consideration of human rights in the legislative process and expects
statements to contain an assessment of whether proposed legislation is
compatible with human rights.[2]
The committee notes that a number of provisions in the bill raise human rights
concerns (as set out below) that were not examined in the statement of
compatibility.
1.7
The
statement of compatibility states that the bill promotes the right to enjoy
culture as it seeks to protect the integrity of sport in Australia by enforcing
anti-doping rules. The statement of compatibility argues that enjoyment of the
right to culture could be significantly eroded '[s]hould Australians lose the
belief that sporting contests in this country take place on a level playing
field'.[3]
Civil
penalty orders
1.8
The bill introduces
a new Part 8A into the Australian
Sports Anti-Doping Authority Act 2006 in relation to civil penalty enforcement provisions. This Part uses the same
terms as those provided for in the Regulatory
Powers (Standard Provisions) Bill 2012[4]
which is currently before the House of Representatives. In its Sixth Report,[5]
the committee made a number of comments in relation to human rights issues
arising from the Regulatory Powers (Standard Provisions) Bill 2012 and in
relation to bills that either draw directly on those powers or replicate them.[6]
Because the present bill uses the same civil penalty enforcement provisions,
the committee’s review of the present bill’s civil penalties provisions provide
it with the opportunity to supplement its comments on the Regulatory Powers
(Standard Provisions) Bill by examining its application in a specific context.
This examination may also give rise to comments that are of more general
application to the provisions of the Regulatory Powers (Standard Provisions)
Bill 2012.
1.9
The statement of
compatibility makes no reference to whether the guarantees relating
specifically to criminal proceedings contained in article 14 of the International
Covenant on Civil and Political Rights (ICCPR) apply to the imposition of the
new civil penalty provisions. Rather, the statement of compatibility lists article
14 of the ICCPR as being engaged by the bill without commenting on whether the
civil penalties are a 'criminal charge' for the purpose of article 14.
1.10
As the
committee has previously noted,[7]
the imposition of a ‘civil penalty’ may constitute the determination of a
‘criminal charge’ within the meaning of article 14 of the ICCPR. In
determining whether the imposition of a penalty for particular conduct involves
the determination of a ‘criminal charge’, international jurisprudence has
identified the following factors to be taken into account: the classification
of the act in domestic law, the nature of the offence, the purpose of the
penalty, and the nature and the severity of the penalty. Classification as
‘civil’ under Australian law is not determinative. Where a prohibition is
general in application, where the penalty is punitive and intended to deter
(rather than award compensation for loss), and any financial penalty is significant,
it may well be classified as involving a criminal charge and penalty for the
purposes of article 14 of the ICCPR.
1.11
Proposed new
section 13C of the bill provides that failure to comply with a disclosure
notice within the time required in the notice is subject to a penalty of 30
penalty units, or $5,100. In enforcing a civil penalty order, proposed new
section 73B provides that a pecuniary penalty may be imposed that, for natural
persons is the same as the civil penalty provision, but for body corporates,
can be up to five times more than the civil penalty (so up to $25,500). In
addition, proposed new section 73N provides that if a provision requires
something to be done within a particular period of time, a person will commit a
separate contravention each day the contravention occurs. So, for example, if a
person is ten days late in providing information under the disclosure notice,
they could be liable for a civil penalty of up to $51,000, as they would be
liable for a contravention each day until they complied with the notice.
1.12
The
committee intends to write to the Minister to seek clarification as to whether
the proposed civil penalty provisions are considered to involve ‘criminal
charges’ under article 14 of the ICCPR and are required to be dealt with in
proceedings which observe the guarantees applicable to criminal proceedings.
Double
jeopardy
1.13
Proposed new
section 73H does not permit civil proceedings to be brought against a person
for contravention of a civil penalty provision if the person has already been
convicted of a criminal offence constituted by the same or substantially
similar conduct. However, proposed new section 73K provides that criminal
proceedings can be commenced regardless of whether a civil penalty order has
been made against a person 'for conduct that is the same, or substantially the
same'.
1.14
If proceedings
in relation to some or all civil penalties are ‘criminal’, then this would
appear to involve the potential for double trial or double punishment for the
same conduct, contrary to article 14(7) of the ICCPR, which provides:
No one shall
be liable to be tried or punished again for an offence for which he has already
been finally convicted or acquitted in accordance with the law and penal
procedure of each country.
1.15
The
committee intends to write to the Minister to seek clarification (if the
proposed civil penalty provisions are properly characterised as ‘criminal’ for
the purpose of article 14 of the ICCPR) as to whether proposed new section 73K is
consistent with article 14(7) of the ICCPR in allowing criminal proceedings to
be brought in respect of conduct which has already been the subject of a civil
penalty order.
Right not to incriminate oneself
1.16
The
statement of compatibility notes that the bill operates to limit the right not to
incriminate oneself[8]
by abrogating the right in relation to a person answering questions or
providing documents/things under a disclosure notice. Proposed new section 13D
provides that a person is not excused from answering a question or giving
information or producing documents if it might tend to incriminate the person.
The statement of compatibility states that it is necessary to abrogate this right
to ensure that possible doping offences can be properly investigated, noting
that there is 'currently no reason for a person of interest to provide
information to ASADA that may assist in building a doping case against an
athlete'.[9]
1.17
However,
proposed new subsection 13D(2) provides
that information, answers and documents given or produced under this section is
subject to a use and derivative use immunity, which means that it cannot be
used either directly or indirectly as evidence against the person in court proceedings
(criminal or civil). This is subject to a standard exception in relation to
prosecution for offences for the provision of false and misleading information
or documents.
1.18
Despite
this broad guarantee, proposed new paragraph 13D(2)(f) does not exclude the
possibility that the information or documents disclosed by the person (or
further evidentiary material derived from them) may be used in civil
proceedings against the person under the Act. This possibility is explicitly
recognised by the explanatory memorandum and the statement of compatibility. In
this respect the bill’s grant of use and derivative use immunity diverges from
a number of other such grants of immunity in bills recently considered by the
committee where the right of persons not to incriminate themselves has been
abrogated.
1.19
The
explanatory memorandum notes that the effect of the provision is that material
elicited in this way could not be used in other civil litigation, ‘for example,
an action by a sponsor to recover sponsorship money from an athlete who had
been found by a sport tribunal to have committed an anti-doping rule
violation.’[10]
However, no details are provided of the types of civil proceedings that may be
brought under the Act and whether allowing the use of material obtained from
someone compelled to give it would be consistent with article 14 of the ICCPR.
1.20
If any
such proceedings are ‘criminal’ for the purposes of international human rights
law, this would engage the right not to incriminate oneself under article 14(3)(g).
If the proceedings in question are ‘civil’ proceedings for the purposes of
international human rights law, it is possible that the provision may still be
viewed as affecting the right of a person to a fair hearing under article 14(1)
of the ICCPR.
1.21
The
committee considers that proposed new section 13D, which compels the answering
of a question, the giving of information or production of a document/thing, but
which also provides a use and derivative use immunity, is generally consistent
with the right not to incriminate oneself.
1.22
However,
the committee notes that proposed new paragraph 13(D)(2)(f) provides that any
answers, information or documentation given may be used against the person in
civil proceedings under the Australian Sports Anti-Doping Authority Act 2006.
The committee intends to write to the Minister to ask whether proposed new
section 13D(2)(f) is consistent:
- with
the right not to incriminate oneself under article 14(3)(g), if such
proceedings are 'criminal' under international human rights law; or
- with the
right to a fair hearing under article 14(1) of the ICCPR, if such proceedings
are 'civil' under international human rights law.
Right to the presumption of innocence
1.23
The
statement of compatibility notes that the bill may operate to limit the right
to be presumed innocent as it imposes an evidential burden on the defendant in
relation to a range of matters. Proposed new section 13C provides that if the
CEO of ASADA gives a person a disclosure notice requiring them to attend an
interview, give specific information or produce documents or things, that
person will be subject to a civil penalty if they fail to do so within the
period specified in the notice. New subsection 13C(2) places an evidential
burden on the person who has been issued with the notice to show that they do
not possess the information, document or thing and they have taken all
reasonable steps to obtain it and have been unable to do so. The statement of
compatibility states:
It
is appropriate for the burden of proof to be placed on a defendant in this case
as it will be within the knowledge of the defendant as to whether they have
what is being requested. Imposing the burden of proof on ASADA would be
extremely difficult or expensive whereas it could be readily and cheaply
provided by the recipient of the disclosure note. In practical terms,
evidential burden may be satisfied if the person signs a document of legal
standing that they do not have the required material (e.g. statutory
declaration).[11]
1.24
Proposed
new section 73Q also provides that a person is not liable to have a civil
penalty order made against them if they were under a mistaken belief that
certain facts were different. A person wanting to rely on this defence bears an
evidential burden to demonstrate that they were under this mistaken, but
reasonable, belief and had those facts existed the conduct would not have
contravened the provision. The statement of compatibility provides that '[t]his
clause is reasonable and proportionate because the defendant will have the
requisite knowledge to adduce evidence of the Mistake of Fact'.[12]
1.25
The
committee considers in light of this explanation that these matters are peculiarly
within the defendant's knowledge, and as the burden is limited to an evidential
burden only and not a legal burden, the limitation on the presumption of
innocence is reasonable and proportionate.
Right not to be subject to arbitrary or unlawful
interference with privacy
1.26
The
statement of compatibility identifies that a number of provisions in the bill engage
the right not to be subject to arbitrary or unlawful interference with privacy
(article 17 of the ICCPR). In particular, the CEO of ASADA is authorised to
issue a disclosure notice requiring a person to answer questions, or produce
information or documents as specified. The CEO is also authorised to disclose
information, documents or things obtained in relation to the administration of
the national anti-doping scheme for the purposes of, or in connection with, the
administration of that scheme. In addition, amendments to the Australian
Postal Corporation Act 1989 allow for disclosure of information by
Australia Post employees to the CEO of ASADA for the purposes of administrating
the national anti-doping scheme.
1.27
The
statement of compatibility justifies these limitations on the right to privacy:
These
clauses are reasonable, necessary and proportionate to the legitimate aim of
catching doping cheats, particularly given the safeguards that already exist in
the Australian Sports Anti-Doping Authority Act 2006. Section 71 of the
Act already provides for the protection of [national anti-doping] scheme
personal information while Section 73 preserves the operation of the Privacy
Act 1988.
1.28
The
statement of compatibility goes on to note:
Amendments
to the ASADA regulations following passage of these legislative amendments will
provide further protections around the issuing of a disclosure notice such as
specifying what information must be included in a disclosure note.
1.29
The
committee considers in light of this explanation that the bill does not appear to give rise to any human
rights privacy concerns. The committee notes that it will examine any
subsequent delegated legislation for
compatibility with human rights. It also notes that questions as to whether further protections
around the issuing of a notice are best placed in primary or secondary
legislation is a matter the Scrutiny of Bills Committee is empowered to
consider.
Right not to be subject to arbitrary or unlawful
interference with family
life
1.30
While not
identified in the statement of compatibility, the provisions requiring a person
issued with a disclosure notice to attend an interview to answer questions or
provide information or documents may engage the right not to be subject to arbitrary or
unlawful interference with family life.[13]
1.31
Any person that
the CEO of ASADA reasonably believes has information, documents or things that
may be relevant to the administration of the national anti-doping scheme can be
issued with a disclosure notice.[14]
The explanatory memorandum notes that a person issued with a notice 'can be any
person, not just an athlete or athlete support person'.[15]
This could require an athlete's family members, such as their spouse, parent or
child, to answer questions about their family member's alleged drug use.
However, there is nothing to enable a person issued with a disclosure notice to
object on the basis that they are being asked to provide information in respect
of their family member. This is in contrast, for example, to the Evidence
Act 1995, which provides that when a person is the spouse, de
facto partner, parent or child of a defendant they may object to giving
evidence as a witness for the prosecution and if the court finds that harm
might be caused to the person, or to the relationship between the person and
the defendant, the court may rule that the person not be compelled to give
evidence.[16]
1.32
The
committee intends to write to the Minister to seek further information as to
whether the provision imposing a civil penalty on any person for failing to
comply with a disclosure notice engages the right not to be subject to
arbitrary or unlawful interference with the family in article 17 of the ICCPR.
Freedom
of association and freedom of expression
1.33
The bill[17]
also seeks to amend the Australian Sports Anti-Doping Authority Act 2006
to restrict members of the Australian Sports Drug Medical Advisory Committee
(ASDMAC) from liaising with others outside the Committee on matters under the
national anti-doping scheme. It also restricts Committee members from taking
part in any deliberations or decisions of a sporting administration body in
relation to a matter arising out of the national anti-doping scheme, without
the prior written consent of the CEO of ASADA.
1.34
Articles 19 and
22 of the ICCPR provide that everyone has the right to freedom of expression,
including the freedom to 'seek, receive and impart information and ideas of all
kinds', and the right to freedom of association with others. While the rights
to free expression and association may be limited, the statement of
compatibility does not identify these rights or justify any restrictions on the
activities of members of the ASDMAC.
1.35
The
committee intends to write to the Minister to seek information as to whether
restrictions on members of the ASDMAC liaising with others and contributing to
deliberations or discussions are consistent with the right to freedom of expression
and freedom of association in articles 19 and 22 of the ICCPR.
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