Greens’ Senators Dissenting Report
1.1 The Senate Community
Affairs Legislation Committee majority report on this Bill (“the Report”) does not give
enough attention to concerns that have been identified about the impact of the
Bill on athletes and their families who are not deliberately trying to cheat or
use performance enhancing drugs in sporting competitions.
amendments are made, the Bill as it stands may punish the wrong people as penalties
for inadvertent breaches will double and athletes rather than prohibited
persons may be penalised.
the intent of the Bill is to protect athletes, as submitters from the legal
profession and athletes’ representatives noted, while there is universal
support for anti-doping legislation, the Bill is drafted in ways that may
punish innocent athletes and not those responsible for anti-doping
The WADA Code, which is designed to address illegal use of performance
enhancing drugs, has the potential to penalise the wrong people. There may be
other ways to ensure Australian team sports comply with international
anti-doping requirements while maintaining Australia’s reputation as a leader
Prohibited Association and Personnel Support definitions are broad and
the Department of Health outlined in their submission, the Bill introduces a
new ‘prohibited association’ anti-doping rule violation that is designed to
address athletes support personnel who may operate outside of the umbrella of
national sporting organisation’s anti-doping policy.
wording and definition of who constitutes ‘support personnel’ and what
constitutes a prohibited association is vague and the provisions in the
legislations are broad. The Bill may have unintended consequences by capturing
family members and innocent people. Many submitters, even those supporting the
Bill, agreed that the wording needs redrafting.
1.7 Asked about the vague
wording in the Bill, Mr Brian Roe, Manager of Ethics and Integrity, Athletics
Australia, agreed the Bill could be re-drafted:
Mr Roe: We would be content if the legislation was so
written, as long as it catches the people who should not be hanging around
athletes or participating in the sport during their period of time then we are
happy with it. If that requires some more drafting we would be happy to talk
...I agree with your contention that it is broadly
written and that those people could be caught by the legislation...I think we
would also be happy if further work was done and some appropriate wording was
(Hansard, p 5)
Commercial Bar Association of Victoria raised concerns with the wording of the
Prohibited Association and Personnel Support clauses, pointing out that the
broad and vague terms would include parents of young non-professional athletes
as well as those involved in deliberate doping. They outlined their
principle objections to the personnel support definitions:
We fail to see how parents or other persons working with or
treating or assisting an athlete fall into that category. We do not object to
the primary matters—and there are semiprofessional people, if I can call it,
who have been involved in sporting clubs. We agree with those changes. It is
just that it has gone too far...because, as the submissions highlight, you then
say that if the parent is involved in working with, or participating, or
preparing [inaudible] sports competition—as every parent of every swimmer does,
by driving them to training and dealing with their dietary requirements—under
the definition they are assisting that athlete and preparing that athlete for
sports competition. So they are caught. My proposition is that the rest of it
is fine, but, when you get to deal with parents, it is a fundamental breach of
their human rights, and it is misconceived. No-one in any of the submissions
before you has explained why parents have been included in this category and
what special arrangements should be put in for parents. 
Di Natale questioned why the broad definitions outlining the grounds for
prohibited association also include ‘professional misconduct’. In questioning
with legal experts, this terminology was also found to be unclear and vague.
Senator DI NATALE: Just finally, under the
professional misconduct clause someone can be prohibited not just if they have
been banned or convicted of a crime that would constitute a doping violation
but also if they have been sanctioned for professional misconduct. I am not
really sure what that means.
Mr Nolan: Neither am I.
The Law Institute of Victoria recommended that the Bill be amended with
tighter definitions so that innocent people are not captured by legislation
designed to catch professional drug cheats. They added that ceding increased
powers to the CEO of ASADA was not an effective filter that would ensure the
policy is fairly implemented.
We would be much more satisfied with a much tighter
definition of what those categories are, rather than simply a blind, in our
respectful submission, reliance on the ASADA CEO being the filter for what is a
reasonable prosecution and what is not. Certainly, we accept the principle that
athletes ought not to associate with dopers, and the clear example is people
subject to bans at a particular time; but then it is the category beyond that
that gives us some concern.
The thrust of the proposition put forward by the Law Institute of Victoria
and the Commercial Bar Association of Victoria was that the Bill penalises
athletes for their associations and a more effective way to address anti-doping
violations would be to amend the Crimes Act as most of the offences involve
prohibited substances. Amending the Crimes Act, rather than penalising
athletes, would put the pressure back on drug traffickers rather than
CEO of ASADA, while strongly supportive of the Bill, did conceded that there is
some concern about the interpretation of the wording related to people who
would be captured by the Prohibited Association definition. Mr McDevitt
acknowledged that there are checks and balances and the situation may rarely
arise, but the need for better defined legislation was a point he recognised.
My sense is that, in reality, this particular violation would
be used in a very judicious and sparing manner. There are checks and balances.
Certainly for me, this is totally about the protection of the athlete from
those who might be out there seeking to move among sports and ply their wares.
Perhaps in the wording we do not have the clarity that you might seek; but we
do have checks and balances, we do have a lot of discretion in terms of this
particular violation. As the CEO, I would see this as something that would be
used very judiciously and sparingly.
Unfair elements in the Bill
Paul Horvath from the Law Institute of Victoria was critical of the broad definitions
in the Bill and the imprecise wording which would unintentionally catch
athletes who would be unable to defend themselves:
...in addition to the legislation needing to be fair, we say
that it needs to be precise...we are concerned about the breadth of that
definition and the fact that that will catch people unintentionally and lead to
prosecutions which, as we say, athletes are not positioned to defend..
Horvath cited examples of accusations of use of banned substances by high-profile
athletes. Some high profile athletes were able to defend themselves as they
were well resourced, such as Ian Thorpe (a testosterone-based allegation);
Michael Rogers (consumed contaminated meat) and Samantha Riley (took a headache
tablet). The fact that these athletes had high level legal representation meant
that they could defend themselves against allegations of offences that could
end their careers. The Bill, however, could make it very difficult for
under-resourced athletes to defend themselves and this could unfairly end their
careers. As Mr Horvath put it:
So their ability to defend themselves against these sorts of
allegations is extremely limited. We say that that must critically be borne in
mind when removing the right to presumption of innocence. So we urge the Senate
and the parliament to seek to apply and to introduce a method by which athletes
can have a certainty of defending themselves against these very serious
allegations, which can often end careers.
Australian Athletes’ Alliance (AAA), which represents Australia's eight major
player associations and over 3,500 elite athletes in Australia, opposed the
Bill on a number of grounds, principally that the Bill does not protect the
rights of ‘clean’ athletes who would be subjected to an ineffective anti-doping
regime. As the General Secretary of the AAA explained, Athletes would:
...be subject to regulations which are ineffective, which
violate their fundamental rights and also which are underpinned by a philosophy
which sees athletes as the problem and not the solution.
WADA Code may not be the best model to respond to anti-doping.
appears to be a gulf between the problem of doping and cheating in sport and
the outcomes the Bill claims it will achieve.
presented by Australian Athletes’ Alliance suggests that there are other ways
to address anti-doping in team sports, such as collective bargaining and
through employment contracts. Football and other sporting clubs are employers
and have provisions ensuring they provide a safe workplace. This type of
collective bargaining operates in the United States where some sports, such as
the NFL, have not signed up to the WADA Code and yet the US does not suffer any
penalties or have any difficulties participating in Olympic and international
General Secretary, Brendan Schwab, questioned WADA’s ability to prevent
anti-doping, and by extension, the effectiveness of Australia signing up to the
WADA Code. In their submission, the AAA clearly defined their objections: they
do not consider the WADA Code “to be a fair and effective governing model to
prevent doping”; it impinges on human and employment rights and the Code does
not achieve its anti-doping purposes.
is worth recording the AAA submission on the effectiveness of the WADA Code.
The AAA submission cites UNI Sport Pro, which represents 80,000 athletes
world-wide. The data provided to the inquiry showed:
- There are no consistent reporting
standards of anti-doping rule violations (“ADRVs”) by national anti-doping
organisations (“NADOs”). Many NADOs do not report at all;
- Of 277,928 tests conducted in
2009 based on the incomplete available data, 758 were positive (0.27%);
- Of 258,267 tests conducted in
2010, 1393 were positive (0.53%); and
- Three out of 2216
out-of-competition tests were positive (0.13%).
- Only 9 out of 49 European NADOs
reported out of competition testing results in 2010. Of the 17,166 tests, there
were only 28 violations (0.16%).
AAA contends that there exists an “incredible gulf” between the problem as
stated by WADA and the “outcomes of its regime.” Therefore there is no basis
for agreeing to the WADA Code through the passage of the Bill and the
limitations the Bill imposes are neither necessary nor proportionate.
evidence presented by the Department of Health, there was an admission that the
Bill was targeting athletes in lieu of being able to curb the suppliers of
banned substances. When asked about the prohibitive association and other measures,
the Department conceded:
What we are dealing with here primarily is people who are
outside the jurisdictions of sport, so we are trying to curb their influence by
saying that athletes themselves cannot associate with those people under those
Penalties are not justified
Bill penalises athletes when the target should be those who peddle and promote
illegal drugs in sport. The stipulated penalties – which double from 2 to 4
years the ban on athletes – go too far and will capture non-Olympic athletes
who are essentially innocent of deliberate doping infringements. The proposed
changes in the Bill will increase the penalty for no-fault ingestion of a
non-specified substance from 1 year to 2 years. It was further noted that bans
proposed in the legislation will be career ending, and while this may be
acceptable in Olympic and World Championships which operate on 2 - 4 years
cycles, the bans are considered by some to be too harsh for athletes competing in
Australian domestic team sports.
justification or evidence was presented explaining why penalties should be
increased to 2 and 4 years.
Schwab submitted that the proposed penalties, especially for athletes not found
to be deliberately ‘doping’, would be career ending. These penalties were
designed for Olympic and individual professional athletes and not for
Australian domestic team players. Mr Schwab recommended other avenues to
address the misuse of drugs in Australian team sports. He posed the question
We simply ask why should a player suffer a career-ending
penalty when everyone involved in the procedure agrees that he or she is (a)
not a cheat and (b) had no significant fault to play in that violation. This
bill, because of the new WADA code, increases that ban from one year to two
years. 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.
General Manager, Player Relations, AFL Players Association, Mr Ian Predergast,
submitted that the Bill’s penalties are not compatible with Australian
employment law and the doubling of penalties for athletes not deliberately
cheating or using performance enhancing drugs are excessive.
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. As a result, the new sanctions are incompatible with the principles
of Australian employment law and basic fairness.
severity of the proposed increase in penalties was underlined by Mr Schwab, who
pointed out that the WADA Code and the ASADA Bill Amendments were designed to
capture drug cheats at Olympic and International competition and may not be in
the best interests of some Australian domestic sporting competitions. The
WADA code was a one-size-fits-all that lacks relevance to Australian domestic
The underlying point of the WADA code is that this
one-size-fits-all approach is the way to go. We have gone to four-year bans
because of the Olympic cycle. The Olympic cycle is not relevant to the AFL. It
is not relevant to the NRL. In my major sport, professional football, a
four-year ban would deny the player 160 to 170 competition days, which is not
the case for the Olympics and would certainly be career ending. A two-year ban
is career ending for, I would say, 99 per cent of players. That is the reality
that is before the committee and we are saying, 'Let's not lose this basic
reality in the high rhetoric of that, which informs much of the debate around
Conforming to WADA Code
from the AOC and ASC was based on the WADA Code and there was concern expressed
as to why Australia should automatically sign up to WADA and implement changes
to the WADA code. International athletes associations, representing
80,000 athletes world-wide, oppose the WADA compliance proposals. The
rhetoric that this legislation is “to protect athletes” is at odds with the
athletes’ representative organisations, who oppose the Bill.
Paul Horvath, Committee Member, Sports Law Committee, Law Institute of Victoria
submitted that Australia should not simply follow the WADA Code, in particular
the way it changes the presumption of innocence.
The WADA Code is strict liability and harsh in its operation.
ASADA stringently prosecutes any detected breach. Guilt is presumed under that
Tony Nolan QC, Chair of the Sports Section of the Commercial Bar Association of
Victoria, also presented a strong case against implementing changes simply
because WADA says everyone has to comply with their revised policies.
I have never thought that to be a sensible way to conduct legislation
changes, because of course in Australia we have to review whether the changes
comply with other international conventions and principles.
was also pointed out by the AAA that in the United States, some professional
sports address anti-doping issues in team sports through collectively bargaining,
and yet the United States participates in Olympic activities and international
sports. Mr Ian Predergast, General Manager, Player Relations, AFL Players
Association, also noted that some anti-doping measures implemented by the AFL
actually go further than the WADA Code.
Concerns about ASADA resourcing and capacity
WADA has been critical of ASADA’s time delays and inability to provide speedy
resolutions to anti-doping cases. The 18 month delay in investigating the
NRL and concerns about confidentiality were alluded to by several submitters in
regards to increasing ASADA’s powers through this Bill.
Nolan highlighted the relatively few cases of doping in Australian sport, submitting
that either there are not many banned drugs in sport or ASADA has been incompetent
in catching the drug cheats. The statistics presented bring to the fore the
very few cases of doping – which calls into question the need to massively
increase penalties and powers given the relatively small problem confronting
In 2011-12 there were 10,596 tests, according to the annual
report, and only 13 positive results. If one adds in the outstanding year's
results—because there is always a period of delay—another 11, that makes only
24 positive tests. So, out of 10,500 tests, there were 24 positive results,
where six were for cannabis. It does not take much, even for barristers, to
work out the percentages: 24 out of 10,500 means 0.226 per cent, or two in
1,000. It is 18 positive results if one ignores the cannabis cases—because it
has been included, really, for non-performance-enhancing reasons; it has always
been the subject of debate, whether it should or should not be in the guide for
two of the three reasons to be included as a prohibited substance—which comes
down to 0.169 per cent.
Nolan further submitted that ASADA were asking for increased powers even though
they had not demonstrated an ability to investigate and prosecute cases in a
timely and reasonable manner. The Inquiry heard evidence of 14 and 18 month
waits for cases to be prosecuted. Mr Redman from the Law Institute of Victoria
pointed out that in other countries cases are heard within a few days, whereas
in Australia they can take months.
has not demonstrated they have the resources and ability to implement the
measures in this Bill and the evidence of doping in Australia does not justify
some of the measures in the Bill, such as the doubling of penalties. The
Chairman of the AAA, David Garnsey, outlined their concerns with ASADA being
given additional powers:
If ASADA is to be vested with further powers, in addition to
the coercive powers which were granted to it in 2013, then in the AAA's
submission it must have the confidence of the public and indeed the key
stakeholders, including the athletes, for that to happen. It is our submission
that that is not the case today.
key concern raised was around confidentiality. Mr Garnsey from the AAA
outlined their concerns about how the media were able to accurately report on
confidential ASADA investigations:
But it was not just the length of time that was taken; it was
also the lack of any confidentiality within that process, which apparently is
guaranteed under the WADA Code and under the accompanying legislation in
Australia. We got a blow-by-blow description of what was happening in that
investigation through the daily media. It should never have been open to the
media to have access to that sort of information—and not only that: it was also
reported as fact what was about to happen in the investigation, which
subsequently proved to be quite accurate down the track. That information was
in the possession of the media but not in the possession even of the very legal
representatives who were acting for the athletes within that investigation. All
those matters were of massive concern to representatives of those athletes
1.36 The Greens members of the Committee recommend that a more thorough and
wide-ranging inquiry be held into ASADA and the WADA Code before this Bill is
Senator Rachel Siewert Senator
Richard Di Natale
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