Purpose of the bill
1.1
The Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019 (bill) seeks to amend the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act) to establish Sport Integrity Australia (SIA) as a single body for the administration and coordination of functions to prevent and address threats to sports integrity in Australia.
1.2
The bill will bring together all existing national sports integrity functions and capabilities across the Commonwealth.
1.3
The bill responds to key findings of the Review of Australia's Sports Integrity Arrangements (Wood Review) regarding the vulnerability of Australian sport to future corruption, and the importance of establishing a central, specialised intelligence capability to support law enforcement and regulatory agencies.
1.4
The bill was introduced in the House of Representatives on 17 October 2019.
The Wood Review
1.5
In 2017, the then Minister for Sport (Minister) requested a review of Australia's sports integrity arrangements as part of work to develop a National Sport Plan and in response to the growing global threat to the integrity of sport. The review was conducted by an independent, expert panel led by the Hon James Wood AO QC.
1.6
The Wood Review was tasked with examining:
the current national and international sports integrity threat environment and foreseeable future challenges;
the adequacy of Australia's current sports integrity capability, particularly:
the capability of ASADA and Australia's sport sector to address contemporary doping threats;
the effectiveness of the 2011 National Policy on Match-Fixing, including the merits of becoming a signatory to the Council of Europe Convention on the Manipulation of Sports Competitions (Macolin Convention) and the case for national match-fixing laws;
the merits of establishing a formal national platform for effective ongoing detection of and response to betting-related sports corruption;
the merits of establishing a national sports integrity tribunal; and
options for structural changes to current sports integrity arrangements, including the merits of establishing a dedicated national sports integrity commission or similar entity.
1.7
The report of the Wood Review was presented to the Australian Government in March 2018. The report addressed key domestic and international threats to the integrity of sport and made 52 recommendations across five key themes:
a stronger national response to match fixing through Australia becoming a party to the Macolin Convention;
establishment of an Australian Sports Wagering Scheme to sit within a proposed National Sports Integrity Commission;
a range of reforms aimed at enhancing Australia's anti-doping capability;
establishment of a National Sports Tribunal; and
establishment of a National Sports Integrity Commission.
1.8
The government has adopted a two stage approach to the implementation of recommendations of the Wood Review. In a joint submission, the Department of Health (DOH) and the Australian Sports Anti-Doping Authority (ASADA) explained that the first stage will establish SIA, while the second stage is anticipated to establish mechanisms to achieve the full suite of sports integrity capabilities proposed by the Wood Review. The mechanisms proposed to be established in the second stage will include: a Joint Investigations and Intelligence Unit; a Strategic Analysis Unit and the transfer of the sports wagering data monitoring and alert functions of the Sports Betting Integrity Unit from the Australian Criminal Intelligence Commission to SIA.
The proposed amendments
1.9
The amendments to the ASADA Act set out in the bill will:
abolish ASADA and create SIA;
expand the functions of the new Chief Executive Officer (CEO) of SIA to include functions related to broader sports integrity issues; and
create an Advisory Council, appointed by the Minister, to provide external expert advice of a general nature in relation to strategic and governance matters to the CEO of SIA and the Minister.
1.10
The bill also amends the Freedom of Information Act 1982 (FOI Act) and the Privacy Act 1988 (Privacy Act) to ensure SIA's ability to receive and disseminate information as required.
1.11
A version of this bill was introduced in the 45th Parliament, but lapsed at the dissolution of the House of Representatives on 11 April 2019. DOH and ASADA submitted that the bill incorporates updates following consultation with stakeholders in relation to that earlier bill. These updates include:
amendments to the object and CEO's functions and powers to better reflect the role and remit of the new agency;
amendments to facilitate better information sharing by and with SIA; and
consequential amendments to harmonise operation with the Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-doping Capability) Bill 2019.
Conduct of the inquiry
1.12
The Senate referred the provisions of the bill to the Senate Community Affairs Legislation Committee (committee) for inquiry and report by 3 February 2020. The committee sought an extension of time to enable it to finalise its report by 5 February 2020.
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Details of the inquiry, including a link to the bill and associated documents were placed on the committee’s website. The committee wrote to relevant organisations inviting submissions to the inquiries by 17 January 2020.
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The committee received six submissions, which were published to the committee’s website and are listed at Appendix 1 to this report.
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The committee thanks all of those who contributed to the inquiry.
Legislative scrutiny
Human rights
1.16
The Parliamentary Joint Committee on Human Rights has not commented on the bill.
1.17
The Explanatory Memorandum to the bill notes that the bill engages the right to privacy and reputation and concludes that the bill is compatible with human rights as the bill promotes rights and to the extent that it limits rights, these limitations are reasonable, necessary and proportionate to achieving a legitimate objective.
Scrutiny of Bills
1.18
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills committee) noted the following matters in relation to the bill and sought further information from the Minister:
the proposed immunity from civil liability for members of the Advisory Council (proposed subsection 78(1A)); and
the provision for SIA to be an enforcement body for the purposes of the Privacy Act (Item 23 of Schedule 2).
1.19
The Scrutiny of Bills committee considered the Minister’s response to each matter in Scrutiny Digest 10 of 2019. The Scrutiny of Bills committee’s consideration of the bill is discussed further in the discussion of the relevant provisions of the bill below.
Discussion of key matters raised in submissions
1.20
The Wood Review noted that sports integrity matters are complex, globalised, interconnected and beyond the control of any single stakeholder. The review found that Australia's vulnerability is exacerbated by the lack of:
nationally consistent legislative measures and other protections; and
development of centralised intelligence and law-enforcement capabilities to connect Commonwealth and state and territory agencies.
1.21
The Wood Review stated:
Without the presence of a comprehensive, effective and nationally coordinated response capability, the hard-earned reputation of sport in this country risks being tarnished, along with a potential reduction in participation rates and a diminution in the social, cultural and economic value of Australia’s significant investment in sport.
Establishment of SIA
1.22
A key recommendation of the Wood Review was the establishment of a National Sports Integrity Commission, to address the need for 'a formal, national capability dedicated to coordinating the collection, analysis and dissemination of information and intelligence in relation to sports integrity'. The Wood Review found no existing Australian entity has the capability or power to obtain the information and intelligence necessary to understand and address threats to Australian sports integrity.
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In a joint submission to the inquiry, DOH and ASADA explained that the establishment of SIA would merge all functions and ongoing resourcing of ASADA, the National Integrity of Sport Unit and the national focussed sports integrity functions within Sport Australia.
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SIA will perform the existing sports integrity functions currently spread across different bodies, including:
policy and program delivery on all sports integrity matters;
education and outreach on all sports integrity matters;
the existing oversight of the implementation of, and adherence to, sports integrity policies and programs by National Sport Organisations (NSOs);
anti-doping monitoring, intelligence collection and investigations currently performed by ASADA; and
international engagement, including being the formal 'National Platform' for the purposes of the Macolin Convention.
1.25
Submitters to the inquiry appear to support the establishment of SIA. The Australian Olympic Committee (AOC) in particular submitted 'it is paramount to the integrity of sport in an increasingly complex sporting environment that there is a co-ordinated national approach against doping, match fixing, illegal gambling, corruption and participant protection issues'.
Constitutionality of the bill
1.26
Some submitters noted that there is no express Commonwealth constitutional power to legislate in the areas of sport, sports integrity or crime and questioned whether the bill would be within power, noting the bill will rely on the external affairs power under the Constitution.
1.27
Submitters noted that one of the conventions relied upon by the bill, the Macolin Convention, is not yet in force. Surf Life Saving Australia (SLSA) and Dr Annette Greenhow questioned the extent of the Commonwealth's powers pending ratification of the Macolin Convention.
1.28
Dr Greenhow also noted that proposed amendments at item 12 to the bill to provide a non-exhaustive list of threats to sports integrity, include reference to the abuse of children and other persons in a sporting environment and the failure to protect members of sporting organisations and other persons in a sporting environment from bullying, intimidation, discrimination or harassment. Dr Greenhow submitted that there is no specific 'sports integrity' treaty or convention that specifically provides the constitutional basis for these other integrity threats and suggested that the constitutional basis for these other sports integrity threats be reviewed.
1.29
Section 3 of the ASADA Act identifies implementing Australia's international anti-doping obligations as the foundation for the Act. The Explanatory Memorandum to the Bill states that SIA will implement Australia's international obligations under the UNESCO International Convention against Doping in Sport and the Macolin Convention. The Explanatory Memorandum notes that the Macolin Convention is not yet in force and binding on Australia.
Definitions of sports integrity and threats to sports integrity
1.30
Item 11 to the bill inserts a new definition of 'sports integrity: the manifestation of the ethics and values that promote confidence in sport'. As noted above, Item 12 inserts a non-exhaustive list of threats to sports integrity.
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Submitters questioned the scope of the proposed definition of 'sports integrity' and list of threats to sports integrity. Dr Greenhow questioned whether the definition of sports integrity is 'adequate to reflect contemporary views on defining and conceptualising sports integrity across the Australian sports ecosystem'. Dr Greenhow suggested that the definition of sports integrity in the bill be reviewed in light of recent literature on sports integrity. SLSA expressed concern that the definition is 'extremely broad and very subjective and the ethics and values that promote community confidence in sport vary from community to community and are very temporal'.
1.32
Exercise and Sports Science Australia submitted that the list of threats to sports integrity could be extended to include the use of unethical training protocols.
Investigation of sports integrity matters
1.33
The Coalition of Major Professional & Participation Sports Inc (COMPPS) expressed concern that there is insufficient clarity and delineation provided in the bill regarding the role and responsibilities of government and individual sports in the investigation of sports integrity matters. COMPPS submitted that the integrity of each of the individual sports is primarily the responsibility of each sporting body and that it is the role of government 'to support, assist and work with [s]ports in protecting their integrity, and where applicable, with law enforcement if a matter involves (criminal) conduct beyond the jurisdiction of the sport involved'.
1.34
COMPPS expressed concern that the definition of 'threats to sports integrity' proposed in the bill, combined with the list of the SIA CEO's functions 'may inadvertently lead to giving to the SIA CEO functions that have always, and should continue to reside with, the individual sports themselves'. COMPPS submitted that a lack of clarity in this area could potentially result in a parallel investigative and/or enforcement process under the authority of the SIA CEO, alongside the regulatory frameworks for each sport, and has proposed that the SIA CEO's functions in relation to the investigation of threats to sports integrity be refined.
1.35
In their submission, DOH and ASADA noted the importance of NSOs continuing to take responsibility for maintaining integrity across their codes. DOH explained that SIA will reinforce integrity capabilities where they exist, noting the well-resourced and highly capable integrity units operated by some larger sports. SIA will also help sports which lack the resources required to provide robust integrity protections.
1.36
The AOC submitted that the amendments covered by the bill should be extended to require all sporting organisations in Australia to have anti-doping matters, including sanctions, heard under the ASADA Act with a right of appeal to the Court of Arbitration in Sport (CAS) or directly before the CAS Anti-Doping Division in relation to both national and international athletes. The AOC stated that '[n]o national sporting organisation in Australia should have a doping matter investigated by an internal inquiry or heard and sanctioned by an internal tribunal'. SLSA also submitted that all sports should be subject to the jurisdiction of SIA.
Immunity from civil liability for members of the SIA Advisory Council
1.37
As noted above, the bill establishes an advisory council to provide external expert advice to the CEO and the Minister. The Scrutiny of Bills committee sought the Minister’s advice regarding the proposal to provide members of the advisory council with immunity from civil liability. The Scrutiny of Bills committee expressed concern that the explanatory memorandum to the bill provided no explanation of the provision and requested the Minister’s advice.
1.38
The Minister clarified that the immunity is intended to promote the frank and open provision of advice by the SIA Advisory Council by protecting its members in circumstances where they have exercised their functions in good faith. In noting the Minister’s advice, the Scrutiny of Bills committee requested that this key information be included in the explanatory memorandum.
Sharing information
1.39
As noted above, the bill includes consequential amendments to the FOI Act and the Privacy Act.
1.40
The proposed amendments to the FOI Act will clarify that documents or information that would adversely impact an individual or other parties, which otherwise would be illegal to release or make public under secrecy provisions, are exempt from release under that FOI Act. DOH explained that the amendments will impose the same strict secrecy provisions already contained in the ASADA Act, preventing the release of protected information and health and medical records, including to a court or tribunal.
1.41
The amendment to the Privacy Act will include SIA within the definition of an enforcement body for the purposes of the Privacy Act. In their submission, DOH and ASADA explained that SIA's designation as an enforcement agency relates only to the facilitation of information sharing. The amendment will ensure SIA has the ability to exchange critical information relevant to sports integrity matters with law enforcement agencies. This is considered fundamental to SIA's ability to work collaboratively with Commonwealth, State and private sector organisations. DOH and ASADA clarified that SIA will retain the existing enforcement powers available to ASADA and that the amendments do not afford SIA any additional powers.
1.42
COMPPS expressed concern that the bill does not provide 'the level of clear and express authorisation to SIA to share information with sports and to provide it in such a way that enables the sports to use it in their own investigative and disciplinary capacities'. COMPPS noted the frustration experienced by its members when Government/law enforcement agencies are 'prevented, incapable or unwilling to share with sports information that is vital to protecting sports' integrity'.
Conclusion
1.43
The committee recognises the significant role that sport plays in the Australian way of life and the Australian economy. Threats to the integrity of Australian sport have direct consequences for the health, economic, social and cultural benefits of sport and have the capacity to undermine significant investment in sport. The Wood Review identified avenues for enhancing Australia's capability to respond effectively to the increasing sophistication and complexity of threats to the integrity of sport.
1.44
The committee notes the Government's intention to respond to the recommendations of the Wood Review in two stages and considers that the establishment of SIA is a significant first step in efforts to protect the integrity of Australian sport. By drawing together existing sports integrity capabilities into a single national agency, the amendments in the bill will provide a sound base from which to expand the remit and capability of SIA.
1.45
The committee notes the considerable consultation undertaken in relation to the matters addressed in the bill, both through the Wood Review and in relation to an earlier version of the bill. The committee considers that the amendments proposed in the bill will equip SIA with the tools it needs to meet Australia's international obligations and the expectations of stakeholders to ensure that Australian sport at all levels is safe, fair and inclusive.
1.46
The committee recommends that the Senate pass the bill.
Chair