1.1 On 16 July 2014, the Australian Sports Anti-Doping Authority Amendment Bill 2014 (Bill) was introduced by the Minister for Health and Minister for Sport, the Hon Peter Dutton MP.
1.2 On 28 August 2014, pursuant to a recommendation of the Selection of Bills Committee, the Senate referred the provisions of the Bill to the Community Affairs Legislation Committee (committee) for inquiry and report by 27 October 2014.
Purpose of the Bill
1.3 The Bill seeks to align Australia's anti-doping legislation with the revised World Anti-Doping Code (Code) and international standards that will come into force on 1 January 2015. The Bill would amend the Australian Sports and Anti-Doping Authority Act 2006 (Act) to:
- authorise the making of regulations to allow the Australian Sports and Anti-Doping Authority Chief Executive Officer (ASADA CEO) to implement a new prohibited association Anti-Doping Rule Violation (ADRV);
- extend the time period in which action on a possible ADRV must commence from eight to 10 years from the date the violation is asserted to have occurred;
- expand the membership of the Australian Sports Drug Medical Advisory Committee (ASDMAC) to allow for the appointment of three members for the sole purpose of reviewing decisions, where requested, in relation to applications for therapeutic use exemptions (TUEs);
- require that at least one ASDMAC primary member possess general experience in the care and treatment of athletes with impairments;
- simplify information sharing provisions in the Act to improve the exchange between relevant stakeholders of information that would assist in identifying and substantiating doping violations;
- require that ASADA maintain a public record of ADRVs to be known as the 'violations list';
- remove the requirement for the ADRV Panel to maintain a Register of Findings; and
- allow the ASADA CEO to respond to public comments attributed to an athlete, other person or their representatives with respect to a doping matter.
Conduct of the inquiry
1.4 Details of the inquiry were made available on the committee's website.
The committee also contacted 52 organisations and individuals inviting submissions to the inquiry by 3 October 2014. Submissions were received from 11 organisations, as detailed in Appendix 1.
1.5 A public hearing was held in Canberra on 17 October 2014. The witness list for the hearing is available in Appendix 2.
1.6 The global harmonisation of anti-doping policies and practices is led by the World Anti-Doping Agency (WADA). WADA is responsible for review and development of the World Anti-Doping Code (Code) and is tasked with overseeing acceptance, implementation and compliance with it.
1.7 The Code is a non-government document that applies only to members of sports organisations. The International Convention Against Doping in Sport (Convention) helps to ensure the effectiveness of the Code by providing the legal framework for the formalisation of global anti-doping rules, policies and guidelines.
Australia's obligations under the Convention
1.8 As a signatory to the Convention, the Australian Government has made a commitment to abide by the principles of the Code. While the Convention affords signatories some flexibility as to how governments give effect to the Convention, either by way of legislation, regulation, policies or administrative practices, signatory governments are required to take specific action to:
- restrict the availability of prohibited substances or methods to athletes (except for legitimate medical purposes), including measures against trafficking;
- facilitate doping controls and support national testing programmes;
- withhold financial support from athletes and athlete support personnel who commit an anti-doping rule violation, or from sporting organisations that are not in compliance with the Code;
- encourage producers and distributors of nutritional supplements to establish 'best practice' in the labelling, marketing and distribution of products which might contain prohibited substances; and
- support the provision of anti-doping education to athletes and the wider sporting community.
Review of the Code
1.9 WADA initiated a comprehensive review of the Code in November 2011.
The review involved extensive stakeholder consultation and WADA sought advice on the international human rights implications of revisions to the code from former President of the European Court of Human Rights, Mr Jean-Paul Costa.
1.10 The revised code was adopted by the international anti-doping community at the World Conference on Doping in Sport in Johannesburg, South Africa in November 2013.
1.11 Key changes to the Code include:
- higher penalties for serious anti-doping rule violations;
- the addition of two new anti-doping rule violations;
- smaller targeted testing of samples;
- development of seamless information-sharing arrangements between relevant national and international government agencies and improved information flows with sporting organisations; and
- greater use of intelligence gathering and investigations in detection strategies.
1.12 Following adoption of the Code, international sporting federations, governments and anti-doping organisations are obliged to update their anti-doping policies, rules and legislation to reflect the revisions to the Code by 1 January 2015.
Key provisions of the Bill
1.13 The majority of legislative amendments required to give effect to the revised Code will need to be made to the ASADA Regulations (regulations) along with changes to the anti-doping policies of National Sporting Organisations (NSOs). Amendments proposed in the Bill are required to facilitate amendments to the regulations. These amendments will in turn enable NSOs to meet their anti-doping obligations, both to their respective international sporting federation and as a condition of Australian Government funding through a single Code-compliant
Schedule 1: Prohibited association
1.14 Schedule 1 of the Bill provides for the making of regulations that enable the ASADA CEO to implement the new prohibited association ADRV that has been included in the revised WADA Code.
1.15 Amendments in Schedule 1 would amend the definition of 'athlete' and 'support person' consistent with the definition in the Code. This amendment aligns with new Article 2.10 of the Code.
Schedule 2: Australian Sports Drug Medical Advisory Committee
1.16 Schedule 2 of the Bill would increase the membership of the ASDMAC to enable the Minister to appoint three members with the sole function of reviewing ASDMAC decisions in relation to applications for TUEs.
1.17 This amendment would satisfy the requirement in the Code that anti-doping organisations provide for domestic review of decisions on TUEs. The Explanatory Memorandum to the Bill (EM) states that, while there is a clear authority for the ASDMAC to approve TUE applications in Australia, currently the only recourse for an athlete to challenge a decision is to WADA.
1.18 The proposed amendments seek to 'quarantine' the review members from the ASDMAC decision-making process, by distinguishing between ASDMAC primary members and ASDMAC review members, to facilitate independent review of the initial decision. New subsection 65(1A) would provide for regulations to make different provision in relation to meetings of the ASDMAC Chair, ASDMAC primary members and ASDMAC review members.
1.19 New subsection 54(2AA) would make it a requirement that at least one primary member of the ASDMAC should have experience in the care and treatment of athletes with an impairment. This amendment reflects a requirement in the revised International Standard for TUEs. The Department of Health has advised that while the current ASDMAC membership meets this requirement of the revised Code, it is appropriate to legislate to make this a mandatory consideration.
Schedule 3: Violations list
1.20 Item 16 of Schedule 3 of the Bill requires the CEO of ASADA to establish and maintain a Violations List consistent with Article 14 of the Code. The EM states that while it is current practice for ASADA to report on its website the details of an ADRV once a matter is finalised, the amendments in Schedule 3 seek to regulate this practice through the Violations List.
1.21 The EM states that the Violations List will include the names and other personal details of athletes and athlete support persons who have committed an ADRV. The EM clarifies that an athlete's name will not be published on the Violations List until after the ADRV process has been completed and the athlete has had the opportunity to appeal the decision. The details of the ADRV will remain on the Violations List for the term of the athlete's period of ineligibility.
1.22 The Bill provides discretion for the ASADA CEO not to place the details of a violation on the Violations List in certain circumstances, including:
- a first violation by a person under the age of 18 years;
- where publication may compromise an ongoing investigation; and
- when WADA has authorised the non-inclusion of information under the Code.
1.23 The proposed amendments would also provide for the removal of the current requirement for ASADA to maintain a register of findings and would provide for the ADRVP to make an 'assertion' that it is possible an anti-doping rule violation has been committed. Athletes and athlete support persons would continue to be able to seek review by the Administrative Appeals Tribunal (AAT) of an assertion made by the ADRVP.
Schedule 4: information management
1.24 The revised Code emphasises the need for effective information flows between government agencies, sporting bodies and anti-doping organisations. The Bill would repeal current sections of the Act which distinguish between National Ant-Doping scheme personal information, NAD scheme contract personal information and protected Customs information, and re-structure the information sharing provisions around a single concept of 'protected information'.
1.25 The Bill would authorise disclosure of 'protected information' in certain circumstances. New sections 68A to 68E set out the circumstances in which the ASADA CEO may disclose 'protected information'.
1.26 New section 68E would authorise the ASADA CEO to disclose 'protected information' in response to public comments attributed to an athlete, support person or representative of an athlete or support person, consistent with Article 14.3.5 of the Code. The EM explains that ASADA will continue to be prevented from providing information publicly on the specific facts of a pending case. The EM states that, while existing legislation prevents public comment by ASADA on specific facts of a pending case, it does not recognise expressly the exception provided in Article 14.3.5 of the Code. The EM states '[a] public comment may be required from ASADA to correct or clarify facts where an athlete or their representative initiates discussion publicly about his or her case'.
1.27 Proposed section 67 will make it an offence, with a maximum penalty of two years' imprisonment, to disclose information unless it is an authorised disclosure.
The EM states that authorised disclosures will be prescribed in the Act and regulations.
Schedule 5: increasing limitation period
1.28 Amendments in Schedule 5 of the Bill will increase the period of time within which authorities may commence action in relation to a possible ADRV to 10 years. Currently, action on a possible ADRV must be commenced within eight years from the date the violation is asserted to have occurred. Under the revised WADA Code, from 1 January 2015 authorities will have up to 10 years within which to commence action. These amendments are intended to align with Article 17 of the Code.
1.29 The EM states that this change will improve the scope for anti-doping agencies to uncover sophisticated doping programs and provide greater scope for retrospective analysis of stored samples as new technologies to identify substances are developed.
Consideration by other committees
1.30 The Senate Standing Committee for the Scrutiny of Bills considered the Bill in its Alert Digest No. 10 of 2014. While the committee considered the reversal of the onus of proof in proposed subsection 67(2) and privacy considerations in relation to proposed sections 68A-68E, the committee did not seek further information from the Minister.
1.31 The Parliamentary Joint Committee on Human Rights (PJCHR) considered the Bill in its Tenth Report and commented on the following aspects of the Bill:
- the provision to permit the ASADA CEO to implement the new prohibited association ADRV and the desirability of including clarification of the scope of the ADRV in the Act rather than the regulations;
- the potential for the new ADRV to have the effect of imposing an additional penalty on individuals who have already been convicted and served their sentence; and
- the compatibility of the proposed extension of the limitation period with the right to freedom of association.
1.32 The PJCHR sought clarification from the Minister on each of these points.
1.33 The committee thanks those individuals and organisations who made submissions to the inquiry and gave evidence at the public hearing.
Notes on references
1.34 Reference to the committee Hansard is to the proof Hansard. Page numbers may vary between the proof Hansard and the official Hansard transcript.
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