The proposed amendments in the Australian Sports Anti-Doping Authority
Amendment Bill 2014 (Bill) are intended to facilitate the implementation of a
suite of measures contained in the 2015 World Anti-Doping Code (Code). These
measures seek to address the increasingly sophisticated and complex means
through which doping in sport occurs.
Witnesses to the inquiry recognised the importance of effective
anti-doping policies and practices for the benefit of the health and wellbeing
of athletes, as well as the integrity of sports, and expressed broad support
for the measures in the Bill.
The committee heard that the WADA Code plays an important role in providing a
basis for the harmonisation of international anti-doping efforts.
While concerns were raised with regard to some measures, submitters
generally emphasised the importance of preventing doping in sport and accepted
the need for Australia to meet its international obligations. The committee
notes the support expressed for the following measures in the Bill:
amendments in Schedule 2 relating to the Australian Sports Drug
Medical Advisory Committee (ASDMAC); and
amendments in Schedule 3 relating to the introduction of a
Violations List, the removal of the current Register of Findings and the
provision for the Anti-Doping Rule Violation Panel (ADRVP) to make an
'assertion' of a violation of the anti-doping rules, rather than a finding.
This chapter discusses the following key issues raised in relation to
the new 'prohibited person' Anti-Doping Rule Violation (ADRV);
the proposed extended limitations period; and
the enhanced information management provisions.
The chapter also discusses a number of other issues raised during the
inquiry that do not relate specifically to the measures in the Bill, but are
relevant to the implementation of the revised Code. These include:
strengthened sanctions in the Code;
Australia's whereabouts testing policies;
athletes' access to legal representation;
the adequacy of ASADA's resources; and
the effectiveness of the Code.
New 'prohibited person' Anti-Doping Rule Violation
The provisions in the Bill that would give effect to the 'prohibited association'
Anti-Doping Rule Violation (ADRV) were the subject of considerable discussion
during the inquiry.
As noted in Chapter 1, the new ADRV will apply to an athlete who
associates 'in a professional or sports-related capacity with an athlete
support person who is serving a period of ineligibility or who has been
convicted of a crime or sanctioned for professional misconduct for activity
that otherwise would constitute a doping violation'.
The new ADRV reflects the international anti-doping community's decision to
take action to protect sports and athletes from support persons who orchestrate
systematic doping programs.
While submitters acknowledged the need to curtail the influence of
people with a proven history of doping and the capacity to facilitate
systematic doping programs, concerns were expressed that the provisions in the
Bill that would give effect to the 'prohibited association' ADRV are unduly
broad and that key terms are poorly defined.
The Commercial Bar Association of Victoria (CommBar) submitted that the scope
of the provisions in the revised Code exceed that stated aim and would
encompass volunteers, parents, friends or untrained persons.
The Law Institute of Victoria (LIV) submitted that there is a lack of
clarity regarding the term 'professionally disciplined' and the extent to which
such action is subject to the same onus of proof, burdens of evidence or appeal
rights as an ADRV hearing.
The Australian Athletes' Alliance (AAA) expressed concern that the terms
'professional' and 'sports-related capacity' are broad and 'encompass a range
of activities that have only a tenuous link to sports generally and doping
AAA also expressed concern that the onus is on the athlete to demonstrate that
an association with a 'support person' does not fall within the scope of the
provisions. AAA submitted that the onus in such circumstances should rest with
ASADA or the relevant anti-doping body.
In response to these concerns, a representative of the Department of
Health (the Department) stated that there appears to be some misunderstanding
regarding the scope of the provisions and provided the following explanation:
Firstly, the association which might be the subject of a
prohibition must be in a professional sports related capacity. So there are
limitations around that prohibition to start off with. It is not meant to
interfere with the day-to-day interactions between individuals outside of those
particular provisions. It is targeted at athlete support personnel, and that is
quite a significant point because, when we start talking about [anti-doping
rule] violations, they are [anti-doping rule] violations relevant to athlete
support personnel. That is not all of the [anti-doping rule] violations in the
new code; there are 10 of them.
The representative further explained that:
The athlete must reasonably be able to avoid the association,
and in submissions to the [anti-doping] organisation, which is probably ASADA
in this case, they will be able to identify that they cannot reasonably avoid
that association. The athlete support person must have committed an
[anti-doping rule] violation, or have been found in a criminal, professional or
disciplinary hearing to have engaged in conduct that would have constituted an [anti-doping
rule] violation. As to examples that we have heard—for example, recreational
use of marijuana: under the ADRVs, that is not currently a rule violation for
athlete support personnel...unless...you can demonstrate that that is in connection
with the athlete. For example,
if somebody had cannabis at an event for provision to an athlete, you might be
able to make that case.
The Department explained that the mere fact that a finding has been made
in relation to a person either through a criminal proceeding, or a professional
disciplinary proceeding, is not sufficient of itself to trigger proceedings in
relation to the new ADRV:
The finding against the person in one of those contexts has
to be a finding that, if they had done that action within the jurisdiction of
the WADA code, it would be a rule violation. That they may have been
professionally sanctioned or criminally prosecuted is neither here nor there
except insofar as it brings to light that the person did certain things. If
those things were done in the jurisdiction of the WADA code and were then found
to be doping violations, then we are talking, then we are caught.
The committee notes that while the Code specifically recognises that the
role of athlete support personnel may be fulfilled by a family member, the Code
provides a number of safeguards. First, the athlete must be able to reasonably
avoid the association and will have the opportunity to demonstrate that this is
not the case. Second, the prohibition on association would apply only within a
sports related or professional context. A representative of the Department
If they were registered as a coach and subject to the sports
rules and the antidoping rules, then if they committed a violation, they would
be sanctioned as per the normal arrangement and they would be banned from
sport. It does not mean that they cannot associate. If they are outside the [anti-doping]
organisation and they were found to be guilty of some sort of an offence which
would have constituted an ADRV, they can be given disqualified status, but the
actual point of operation is that the athlete cannot associate with that person
for sports-related or professional reasons.
A representative of the Department also advised that the Code provides
examples and guidance on what is to be considered sports-related for
In response to concerns that the amendments in Schedule 1 of the Bill
require clarification in order to more accurately reflect the intent of the
Code, the Department assured the committee that Australia is bound to replicate
Article 2.10(2) of the Code within the ASADA regulations. Mr Andrew Godkin,
First Assistant Secretary, Office of Sport, told the committee:
There is no confusion here. [Article 2.10.2 of the Code] is
It says 'if the person has been convicted or found in a criminal, disciplinary
or professional proceeding to have engaged in conduct which would have
constituted a violation of antidoping rules if code compliant rules had been
applicable to such person'. That is in section [2.10.2] of the code[.]
Under the code, we have no option but to completely replicate those within our
own regulations. That is what the regulations will state.
ASADA advised the committee that in order to find that a 'support person'
is a prohibited person, ASADA would need to examine the person's conduct
against each of the elements of the offence. Ms Bronwyn Fagan, Director—Legal
Services, told the committee:
We would need to be able to show that that person had
satisfied all of the elements of the offence in order for them to have been
found to commit the criminal offence or the professional misconduct that would
have been an [anti-doping rule] violation.
The committee notes that the new ADRV would be subject to the same
appeal rights as other ADRVs through the Federal Court, the Administrative
Appeals Tribunal (AAT) and the Court of Arbitration in Sport (CAS).
AAA also expressed concern that Section 2.10 of the revised Code is
incompatible with the right to freedom of association guaranteed in Article 22
of the International Covenant on Civil and Political Rights (ICCPR).
In its examination of the Bill, the Parliamentary Joint Committee on
Human Rights (PJCHR) noted that any risk of impermissible limitation of the
right to freedom of association is proposed to be minimised through the
inclusion of a provision in the ASADA Regulation to the effect that the new
ADRV only applies insofar as it is not inconsistent with Article 22 of the
The PJCHR described this requirement as an important and necessary
safeguard to ensure that the measure operates compatibly with the right to
freedom of association. However, the PJCHR also stated:
Given its importance in ensuring that the legislation is
compatible with Australia's human rights obligations, the committee considers
that it would be preferable for the 'reading down' provision to be contained in
the bill rather than be prescribed by [delegated] legislation.
Extended limitations period
The AAA expressed concern regarding the measures proposed in Schedule 5
of the Bill to increase the period in which action in relation to a possible
ADRV may commence from eight to 10 years, describing the changes as
AAA noted that limitation periods in civil actions are generally six years or
less and that longer limitation periods exist only for aggravated crimes. AAA
argued that insufficient justification is offered to support the extension of
the limitation period.
The committee notes that the PJCHR considered the extent to which this
measure might engage and limit the right to a fair hearing, noting:
In human rights terms, limitations periods may be understood
as preserving the 'equality of arms' of parties to litigation, insofar as they
prevent a defendant being required to defend a charge or suit in circumstances
where their ability to do so has been compromised by the passage of time.
Other witnesses expressed support for the increase, noting advances in
medical testing and analytical services.
The committee notes ASADA's advice that the proposed increase in the
limitations period is not intended to be either oppressive or to enable the
passage of time to prejudice the position of the National Anti-Doping Organisation,
the athlete or the athlete support person. Mr Ben McDevitt, Chief Executive
Officer –ASADA, told the committee that the extension of the limitations period
would enable science and technology to 'catch up' and, as a result, people who
cheat will take a significant gamble:
The reality is that athletes who choose to dope can roll the
dice on whether they will be able to remain undetected for a decade. We know
what we are dealing with here are extremely sophisticated substances and
extremely sophisticated screening methods and methods to avoid detection.
We currently keep samples for eight years. Keeping the samples for 10 years
will allow a better chance for technology to catch up and for us to catch
Enhanced information management provisions
As noted in Chapter 1, new section 68 authorises the disclosure of
information by an entrusted person in the following circumstances:
for the purpose of the Act or a legislative instrument made under
as required or permitted under the Code; or
for the purposes of the performance of the functions or the
exercise of the powers of the ASADA CEO, the ADRVP, the ASDMAC or the ASADA
The committee notes that while submitters generally expressed support
for these provisions, some submitters expressed concern regarding the adequacy
of safeguards in relation to the release of personal information.
The AAA stated that, despite certain protections in the legislation, the
discretion afforded to the ASADA CEO is broad. The AAA expressed concern that
that the provision as drafted 'does not provide an adequate check against the
possibility that the integrity of the ASADA CEO is compromised in anyway.'
CommBar expressed support for the disclosure of information provided for
in Schedule 4, but stated:
CommBar believes that paragraph 68(3)(g) is inappropriate. It
is the disclosure of information relating to athletes which affects the rights
of athletes. It is CommBar's view that if such information is to be disclosed
then express powers should be given in the ASADA Act and not in the
The committee notes that neither the PJCHR or the Senate Scrutiny of
Bills Committee expressed concern regarding this provision in their
consideration of the Bill.
The committee also notes the significant role these provisions will play
in supporting ASADA's ability to investigate possible violations. Mr McDevitt
told the committee:
The second point that I think is really good for ASADA is the
move towards intelligence and information sharing and an investigations focus.
Let's face it: testing detects, on average, I think, between one and two per
cent. We had the head of WADA recently say that he thought the rate of doping
was as high as 25 per cent, which is quite extraordinary. So there is a
significant gap there.
We also have eight violations which...simply cannot be proven
[through presence in urine or blood of a banned substance]. So we have to have
information sharing. We have to have intelligence. We have to have tools beyond
simply collecting urine and blood samples if we are really serious about
dealing with doping in this country. That is another area where I think we will
have significant benefit.
Submitters took the opportunity presented by the inquiry to raise a
range of issues related to the implementation of the Code that fall outside the
specific measures contained in the Bill, including: strengthened sanctions;
Australia's whereabouts testing policies; athlete's access to legal
representation; ASADA's resources and the effectiveness of the Code.
The AAA expressed concern regarding the impact of strengthened sanctions
in the revised Code. In particular, the AAA noted that revised Article 10.2 of
the Code will raise the period of ineligibility from two to four years where:
the substance is a Prohibited Substance, unless the Athlete can
establish that the violation was not intentional; or
the substance is a Specified Substance and the relevant
Anti-Doping Organisation (ADO) can prove the violation was intentional.
Where an athlete can prove that the use of a Prohibited Substance was
not intentional, or the relevant ADO cannot prove the intention in relation to
a Specified Substance, the period of ineligibility will be two years.
The AAA argued that this increased sanction is disproportionately high
and is incompatible with the principles of Australian employment law and basic
fairness. Mr Ian Prendergast, Board Member, told the committee:
[C]urrently the minimum sanction for an athlete who takes a
non-specified substance such as thymosin beta-4-which is the allegation in the
Essendon case—through no fault of his or her own is one year, which is 50 per
cent of the otherwise applicable sanction of two years. We believe that this is
disproportionately high, especially for professional athletes, given the
circumstances that they are employed under. The bill, by reflecting the changes
to the WADA Code, effectively doubles this penalty. This applicable sanction
will increase to four years, meaning that a professional athlete will lose two
years of employment in his or her industry, even if he or she is at no fault
for taking the non-specified substance.
The committee notes that the increase in sanctions provided for in the
Code will be implemented by individual National Sporting Organisations (NSOs)
under their respective anti-doping policies in accordance with the Code.
Australia's whereabouts testing
Athletics Australia (AA) took the opportunity to argue for an amendment
to the regulations with regard to Australia's implementation of whereabouts
filing and testing. Under the National Anti-Doping (NAD) scheme, certain
athletes are required to provide current and accurate information to meet
whereabouts filing requirements which in turn enable athletes to be located for
AA outlined for the committee some practical difficulties associated
with the administration of these requirements and suggested that these
difficulties could be addressed by adopting approaches to whereabouts testing
employed in other countries. AA told the committee:
There is one area that we have pursued with ASADA in the past
which we would like to see covered in the regulations attached to this
legislation or the existing legislation, if that is more appropriate. It
concerns additional notice given to athletes in the case of whereabouts
testing. At the moment, each athlete on the testing list has to nominate one
hour per day when they are available for testing.
In many other countries—in many comparable countries, in
fact—there is a regulation which allows the tester to ring the athlete on the
mobile phone during the last five minutes of that hour. That does not comprise
the integrity of the process because obviously, if you are only giving an
athlete five minutes to discover themselves, they do not have time to relocate
from somewhere else or to catheterise themselves if they are devious or
whatever. So we would like to see that policy.
Mr McDevitt noted the extent to which WADA has responded to feedback
from stakeholders in the revised Code citing the following example:
The window in which an athlete may accumulate three
whereabouts failings, which is where there are failures to attend or there are
missed tests, which will trigger an anti-doping rule violation, has been
18 months to 12 months.
Athletes' access to legal
A number of submitters to the inquiry expressed concern regarding the
ability of athletes to meet costs associated with responding to allegations of
ADRVs under the Code.
The LIV argued that the majority of athletes have limited resources at
their disposal to respond to an alleged violation.
LIV also noted that for a number of violations under the Code, athletes bear an
evidentiary burden. LIV submitted that, with this in mind, consideration should
be given to providing 'countervailing protections for athletes to defend
themselves properly, and hence have guaranteed access to legal representation'.
AA expressed concern that CAS has become the sole option for hearing and
resolving ADRVs. AA argued that:
CAS has become extremely slow in administering, hearing and
resolving the majority of cases and almost invariably senior counsel are
involved in hearing the matters and representing parties.
AA urged further consideration of this issue, stating that:
AA is considering an alternative method to be incorporated
within its new Anti-Doping Policy which will come into effect on 1 January 2015
but inevitably either on appeal or in some cases in the first instance there
will still be a reliance on CAS or a similar public tribunal.
Speaking as the President of CAS, Mr John Coates AC, President,
Australian Olympic Committee (AOC), told the committee that the sport of
athletics has adopted a different approach to other sports:
The others all hear at an international level and if you want
to appeal from that you get to appeal to the CAS in the appeal division, which
is free. You pay your $1000 filing fee and the court costs are free. So we are
in discussion with athletics, the international body, that they are creating a
problem for their international athletes who test positive. That is the
problem. It is that sport.
Mr Coates also advised that CAS provides legal aid to athletes, which
includes the provision of pro bono legal advice.
The committee received evidence which suggested that ASADA may have
insufficient resources to undertake its role and that this has had a negative
impact on ASADA's performance.
AA emphasised the importance of ASADA having at its disposal the
requisite resources to undertake its role efficiently and effectively. AA told
[T]here have been examples of long delays. We are sure that
is not because ASADA was not interested; it was because they did not have the
resourcing and manpower to deal with those cases. Our international federation
deals with 211 countries, not all of whom have such a complex, fair and
judicial legal system as we do. So a lot of other countries move more quickly
and unilaterally than our system allows. Our international federation is
anxious that things be dealt with more quickly, and so are we. We do not want
those cases to be held up.
Similarly, we want to ensure that there are adequate funds to
ensure that ASADA can continue its excellent work in educating. This has to be
a constant thing because in our sport there is new talent coming in every day.
Those kids need to be educated. We want to make sure that ASADA are continuing
those programs and that there are some funds available to a sport like ours to
enable us to continue to employ the part-time education officer that we do at
The committee notes AA's evidence regarding the importance of
maintaining adequate funding for testing. Mr Brian Roe, Manager, Ethics and
Whilst we agree absolutely with the move towards more
investigative testing, we would not want a situation where the empirical
testing both in and out of competition stops, because that is a powerful
deterrent in its own right—not the testing but simply the threat of it.
In response to questions about the adequacy of ASADA's resources,
Mr McDevitt acknowledged the need to find efficiencies:
We live under the same fiscal constraint as every other
agency across the Commonwealth. You are right, it is a significant brief and
body of work that we have responsibility for. We did have a surge in our
resources to be able to cope with Cobia—the investigation into the AFL and the
NRL. We are now going back to the sort of levels that we were at pre-Cobia. We
are looking at the best way to get efficiencies. We are reducing our testing
numbers and putting that resourcing into investigations and intelligence, and
that sort of thing.
The committee notes Mr McDevitt's evidence during the inquiry that the
Bill, particularly as regards the extended limitations period and enhanced
information management, would make ASADA's job 'quite a bit easier' and the
level of comfort he felt as ASADA CEO moving into the new operating model under
the Code with the agency's current level of resources.
Effectiveness of the Code
The AAA argued that the Code and current ASADA processes do not provide
an effective framework for preventing doping in sport and disputed claims of a
global consensus for the revised Code, stating that the consensus does not
include the world's player associations. The AAA told the committee:
The WADA code is ineffective in preventing doping. Our
submission goes into this in some detail. WADA says publicly that doping is a
double-digit proportion. There is no evidence for that statement. The test
results, which have resulted in anti-doping violations, as set out in our
submission, show the incredible gulf that exists between the problem as stated
by WADA and the outcomes of its regime.
The AAA submitted that the way to address this is to provide for a
greater role for athletes to address anti-doping through collective bargaining,
a model it argued has been used successfully by major professional sports in
the United States. The AAA stated that such a collective bargaining
model would be tailored to the needs of a particular sport and athletic career
path. Penalties would be managed through individual case management. 
Provision through collective bargaining would properly
acknowledge the duties that leagues and clubs owe athletes as their employers,
including in relation to the provision of a safe workplace. The obligations of
employees to obey the reasonable directions of their employers would be
acknowledged. There is a very different dynamic in professional team sports
from that which exists in sports for individual athletes. We have seen this
highlighted in the situation at Cronulla and Essendon, where there were
concerns so great that the sports themselves imposed sanctions due to the
failure of those employers to provide a safe workplace for their employees.
However, the majority of submitters indicated broad support for the Code
and acknowledged its importance in creating a uniform code for sporting
organisations both domestically and internationally.
Implications of not passing the Bill
In its submission to the inquiry, the Department noted that, if the
amendments in the Bill are not enacted, Australia's anti-doping arrangements
will not reflect the Code and will be deemed by WADA as non-compliant. A
consequence of this would be that Australia's anti-doping provisions would fall
out of step with global anti-doping arrangements, potentially resulting in
practical difficulties such as:
differing obligations for NSOs between their International
Federation and Australian anti-doping legislation, including different
anti-doping violations, sanctions and athlete reporting requirements;
the ASADA CEO would be required to consider and approve a sport's
anti-doping policy, but would not have the jurisdiction to enforce aspects of
the ADRVP would be required to consider possible violations
against a different framework to that operated by NSOs; and
Australia's competitiveness may be disadvantaged and its
eligibility to host major international sporting events could be called into
The AOC and the Australian Sports Commission (ASC) expressed concern
that if the Bill were not to be passed sports and athletes would find
themselves in a difficult position. The Chief Executive of the Australian
Sports Commission, Mr Simon Hollingsworth, explained:
[I]f the bill were not to go through in its current form,
national sporting organisations would be placed in a situation where they would
be required to comply with their international federations and organisations
like the International Olympic Committee and the Australian Olympic Committee,
which would be different to the legislative framework that would exist in
In its submission, the AOC noted the Australian Government's commitment
to supporting sport in Australia, including staging world class major sporting
The AOC submitted:
In order to continue this longstanding commitment, any
staging of future Olympic Games, World Championships and other major
international events in Australia, such as the Asian Football Cup in January
2015 and the Commonwealth Games in 2018, must be Code compliant.
The committee notes that submissions to the inquiry stressed the
importance of Australia taking a strong stance on drug use in sport for the
benefit of all athletes and the importance of protecting Australia's integrity
as a sporting nation.
The majority of submissions expressed support both for the revised Code and for
the measures in the Bill to facilitate the implementation of the Code.
The committee has been mindful throughout this inquiry that the Bill
before it contains only a subset of the changes required to give effect to the
A number of the concerns raised in evidence to the committee relate to
amendments that will need to be made to the ASADA regulations and to the
anti-doping policies of NSOs.
The committee also notes that while the Code requires that certain
Articles must be incorporated into each anti-doping organisation's rules
without substantive change,
the Code affords ASADA a degree of flexibility in implementing the revised
requirements. The Code is:
[I]ntended to be specific enough to achieve complete
harmonization on issues where uniformity is required, yet general enough in
other areas to permit flexibility on how agreed-upon anti-doping principles are
The concerns raised in regard to the new 'prohibited association' ADRV
appear to stem from certain misconceptions around the practical application of
the ADRV. The committee considers that these misconceptions reflect in part a
lack of detail in the Bill and the EM as to the practical application of the
The committee notes the Department's advice that this detail is to be provided
in the amended regulations which are currently being drafted.
While those regulations will be subject to parliamentary scrutiny, it is
regrettable that the committee has not been able to view the draft regulations
at the same time as it is considering the Bill. However, the committee notes
the Department's assurance that the regulations will replicate the ADRVs that
are in the revised Code.
The committee notes concerns raised during the inquiry regarding the
effectiveness of current processes both in addressing the use of drugs in sport
and in protecting the rights of individual athletes and support personnel.
While the committee considers that there may be merit in a more fundamental
review of Australia's anti-doping framework at some point in the future, the
committee considers that the inquiry into this Bill is not the appropriate
avenue for such a review. The time constraints surrounding Australia's
obligation to implement the revised Code by 1 January 2015, together with the
significant consequences that would flow from a failure to comply with this
obligation underscore this.
Finally, the committee notes that the fundamental purpose of the Code is
to support clean athletes in their various disciplines by creating a fair
playing field and providing certainty. The measures in this Bill are ultimately
aimed at ensuring Australia's clean athletes can compete with confidence and
certainty both in Australia and on the world stage.
The committee recommends that the Bill be passed.
Senator Zed Seselja
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