BILLS DIGEST NO. 73, 2018–19              1 April 2019

Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019

Karen Elphick
Law and Bills Digest Section 

Date introduced:  14 February 2019

House:  Senate

Portfolio:  Regional Services, Sport, Local Government and Decentralisation

Commencement: On proclamation or six months after Royal Assent, whichever occurs first.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at April 2019.

Glossary

AAA

Australian Athletes Alliance

AAF

Adverse analytical finding

AAT

Administrative Appeals Tribunal

ADRV

Anti-doping rule violation

ADRVP

Anti-Doping Rule Violation Panel—a body created by the ASADA Act

AFL

Australian Football League

AGD

Attorney-General’s Department

AOC

Australian Olympic Committee

ASADA

Australian Sports Anti-Doping Authority

ASADA Act

Australian Sports Anti-Doping Authority Act 2006

ASADA CEO

ASADA Chief Executive Officer

ASADA Regs

Australian Sports Anti-Doping Authority Regulations 2006

ASC

Australian Sports Commission—now known by the brand name Sport Australia

ASDMAC

Australian Sports Drug Medical Advisory Committee—a body created by the ASADA Act

ASWS

Australian Sports Wagering Scheme

CAS

Court of Arbitration for Sport

Code

World Anti-Doping Code 2015 (as amended in 2018). All NSOs must have anti-doping rules and policies that comply with the Code.

COMPPS

Coalition of Major Professional and Participation Sports

ESSA

Exercise and Sports Science Australia – an accrediting body

ICAS

International Council of Arbitration for Sport

ICCPR

International Covenant on Civil and Political Rights. Australia ratified the ICCPR in 1980 and it is in force, but it is not fully implemented domestically.[1]

Macolin Convention

Council of Europe Convention on the Manipulation of Sports Competitions. Australia signed the convention on 1 February 2019 but has not yet ratified it.[2]

NADO

National Anti-Doping Organisation

NAD scheme

National anti-doping scheme. Authorised by the ASADA Act, the scheme is contained in Part 2 of the ASADA Regs.

NRL

National Rugby League

NSIC

National Sports Integrity Commission—a generic name for body proposed in the Wood Review. The Government has said the body will be called Sport Integrity Australia.

NSO

National Sporting Organisation—a generic name for a peak governing body for a sport

NST

National Sports Tribunal—a tribunal proposed by the Wood Review

PEIDS

Performance and image enhancing drugs

SCB

Sports Controlling Body

SIA

Sport Integrity Australia

SportAus

Sport Australia (the operating brand name of the Australian Sport Commission)

WADA

World Anti-Doping Authority

Wood Review

Report of the review of Australia’s Sports Integrity Arrangements 2018

Purpose of the Bill

The 2018 Report of the Review of Australia’s Sports Integrity Arrangements (Wood Review) recommended a range of reforms aimed at enhancing Australia’s anti-doping capability to address contemporary and foreseeable doping threats.[3] In Safeguarding the Integrity of Sport—the Government Response to the Wood Review (Government Response), the Government agreed or agreed in principle with most of the recommendations and indicated an intention to take a two stage approach to implementation.[4]

The Australian Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping Capability) Bill 2019 (the Bill) is one of a package of three Bills implementing part of the first stage of the Government Response. The purpose of this Bill is to strengthen and streamline the
anti-doping regime by:

•            abolishing the Anti-Doping Rule Violation Panel (ADRVP) and the right to appeal to the Administrative Appeals Tribunal (AAT)

•            extending statutory protection against civil actions to National Sporting Organisations (NSOs)

•            lowering the burden of proof threshold for the chief executive officer of the Australian Sports Anti-Doping Authority (ASADA CEO) to issue a disclosure notice and

•            removing the privilege against self-incrimination in relation to disclosure notices.

The two other Bills in this first stage package are:

•            the National Sports Tribunal Bill 2019 and

•            the National Sports Tribunal (Consequential Amendments and Transitional Provisions) Bill 2019.

Structure of the Bill

The Bill has one schedule with four parts which amend the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act):

Part 1—Anti-Doping Rule Violation Panel

Part 2—Protection from civil actions

Part 3—Disclosure to courts or tribunals and

Part 4—Disclosure notices.

Part 1 also makes minor consequential amendments to the Australian Sports Commission Act 1989 (the ASC Act).

The National Anti-Doping Scheme

The National Anti-Doping Scheme (NAD scheme) assists sports to meet their anti-doping obligations, in particular those imposed by the World Anti-Doping Code 2015. The NAD scheme is contained in Schedule 1 to the Australian Sports Anti-Doping Authority Regulations 2006 (ASADA Regs). The ASADA CEO may amend the NAD scheme by legislative instrument after public consultation.[5] The NAD scheme may also be amended by regulation.

Division 2 of Part 2 of the ASADA Act requires certain matters to be in the NAD scheme. The proposed amendments in Part 1 make changes to the requirements for the NAD scheme, rather than to the NAD scheme itself. Consequential amendments to the ASADA Regs will be required.

The ASADA Act establishes ASADA to assist the ASADA CEO with a variety of statutory duties including those conferred by the NAD scheme.[6]

The ASADA Act also creates the Anti-Doping Rule Violation Panel (ADRVP) and the Australian Sports Drug Medical Advisory Committee (ASDMAC).[7] The ADRVP has various functions, including those conferred by the NAD scheme.[8] Currently the NAD scheme provides that the ADVRP’s functions include satisfying themselves that there has been an anti-doping rule violation and requesting the ASADA CEO to issue an infraction notice.[9]

Background

International anti-doping obligations

In 1999 the International Olympic Committee convened a conference in Lausanne to discuss anti-doping. This resulted in the World Anti-Doping Agency (WADA) being established in late 1999 to promote and coordinate the fight against doping in sport internationally.[10] WADA developed the World Anti-Doping Code (the Code) which first came into force in 2004.[11]

[The Code] is the core document that harmonizes anti-doping policies, rules and regulations within sport organizations and among public authorities around the world.[12]

As governments were not bound by the [Code], in October 2005 the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted the International Convention against Doping in Sport. Parties to this Convention (of which Australia is one), are required to implement the [Code].[13]

One of the intriguing effects of the [Code] and the NAD scheme is the inclusion of Australian sports that are neither Olympic nor international into an international anti-doping regimen. The same observation can be made in respect to athletes who are ‘merely club-players’. The reason for this inclusion lies in part with the aim of WADA to achieve a ‘unified and harmonised’ system.[14]

The ASADA Act obliges the NAD scheme to implement Australia’s international anti-doping obligations.[15] The NAD scheme applies to all persons who compete in sport, if the sport has an anti-doping scheme, and to all athletes.[16] Sport bodies are subject to what has been called ‘soft’ coercion to adopt the Code because sport bodies must have an anti-doping code before they can receive government funding.[17] Once the sporting bodies implement an anti-doping policy, athletes are required to agree to it in their athlete contract or sporting body membership application to comply with the anti-doping policy. (See Flowchart 1 below).

Flowchart 1: National and international anti-doping arrangements[18]

The net effect is that all Australian athletes at state, national or international level, and many athletes at club level (through membership of affiliated sporting bodies), are subject to the Code.

The Wood Review

The Wood Review was a comprehensive examination of sports integrity arrangements, set up by the Government ‘in response to the growing global threat to the integrity of sport’.[19] It considered issues around prevention, investigation, and administrative responses to match fixing and doping. The Wood Review consulted widely and made 52 recommendations.

The centrepiece of the Wood Review recommendations is the formation of a National Sports Integrity Commission (NSIC) to manage sports integrity matters at a national level. The Government has announced that it will form the NSIC and it will be called Sport Integrity Australia (SIA).[20]

Australian Olympic Committee (AOC) President John Coates, who is also President of the International Council of Arbitration for Sport (ICAS) and the Court of Arbitration for Sport (CAS), described the Integrity Review [Wood Review] and recommendations as ‘timely and the most comprehensive national response of its kind I’ve read’.[21]

This Bill is focused on the parts of the Wood Review dealing with improving anti–doping measures. The key findings of the Review on this topic and a summary of recommendations can be found in the introduction to Chapter 4 of the Wood Review at pages 104 to 107.

Government response

Related to the NSIC, the Wood Review recommended:

That the Australian Sports Anti-Doping Authority (ASADA) be retained as Australia’s National Anti- Doping Organisation and that the current requirement for all National Sporting Organisations (NSO) (including sports with competitions only up to the national level) to have anti-doping rules and policies that comply with the World Anti-Doping Code also be retained.[22]

The Government did not support ASADA remaining an independent organisation and Australia’s National Anti-Doping Organisation (NADO). It is the Government’s intention to incorporate ASADA into SIA at some point in the future.[23] Stakeholders appear to support this approach (see below).

The recommendation that all NSOs continue to comply with the Code was not supported by all sports and their opposition is discussed below under the heading ‘Positions of major interest groups’. However, the Government agreed with the Wood Review that NSOs should continue to have Code-compliant anti-doping policies.[24]

The Government agreed with 22 of the Wood Review recommendations, agreed in-principle with 12 and a further 15 were agreed in-principle for further consideration. Two recommendations were agreed in part and one was noted.[25] The most relevant portion of the Wood Review to this Bill is Chapter 4: The Capability of the Sports Anti-doping Authority and Australia’s Sports Sector to Address Contemporary Doping Threats.[26]

The Government Response indicated that it would take a phased approach: some of the important recommendations will be implemented immediately while more complex recommendations will be further considered and implemented at a later stage.[27] This Bill is part of the first stage and implements Wood Review recommendations 17, 19, 23 and 24 in part or in full.

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

The Bill was considered by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) on 28 March 2019. The Committee reported two scrutiny concerns in Scrutiny Digest 2/19.[28]

Removal of merits review

The Committee noted its scrutiny concerns regarding the proposal to remove review by the Administrative Appeals Tribunal of assertions by the Anti-Doping Rule Violation Panel in relation to potential anti-doping rule violations (consequential on the abolition of the Panel). The Committee considered that the explanatory materials do not adequately address these concerns, and drew this matter to the attention of the Senate.

This issue is discussed further below under the heading ‘Part 1—Abolishing the ADRVP and appeal to the AAT’.

Privacy

The Committee noted its scrutiny concerns regarding the expansion of the basis on which persons may be required to disclose certain information and the impact this may have on the right to privacy. The Committee considered that the explanatory materials do not adequately address these concerns, and drew this matter to the attention of the Senate.

This issue is discussed further below under the heading ‘Key issues and provisions’ and ‘Part 4—Lowering the burden of proof for issue of a disclosure notice’.

Policy position of non-government parties/independents

On 1 August 2018, Senator Don Farrell, Shadow Minister for Sport, issued a media release stating that Labor welcomed the release of the Wood Review and urging the Government to consult with national sporting organisations and other key stakeholders.[29] As at the date of writing this Bills Digest, it appears that no non-government parties or independents have indicated a position on the Bill.

Position of major interest groups

While there have been no statements from major interest groups on the Bill as drafted, there was extensive consultation during the Wood Review and some groups have issued statements about the Government Response.

ASADA

ASADA fully endorses the Government Response, including the formation of SIA.[30]

Australian Olympic Committee

The AOC supports all the recommendations of the Wood Review, ‘As for Anti-Doping Rule Violation matters, the AOC fully supports the establishment of a National Sports Tribunal and generally on the basis proposed’.[31] It also commends the Government Response, while saying it would continue to study it and questioning whether the Government had committed sufficient funding.[32]

Paralympics Australia

Paralympics Australia welcomes the Government Response. CEO Lynne Anderson said:

Paralympics Australia also supports the concept of a new National Sports Tribunal, which is proposed to hear anti-doping rule violations and other sports disputes, and resolve them in a consistent, cost-effective and transparent manner.[33] 

Coalition of Major Professional and Participation Sports

The Coalition of Major Professional and Participation Sports (COMPPS) represents the major participation sports in Australia including Australian football, rugby, football, cricket, rugby league, netball and tennis. COMPPS submission to the Wood Review on funding levels for ASADA to combat anti-doping states that, ‘Currently, ASADA is insufficiently funded and resourced to provide the type, and level, of support being sought by the Sports. Previously, ASADA had a strong detection and investigation arm’. [34] It notes that each sport it represents has ‘now established its own integrity unit with responsibility for managing [anti-doping rule violation] ADRV processes’.[35]

Despite this ongoing allocation of resources, we submit that current arrangements are not capable of adequately addressing the doping threat. Specifically, we contend that the Sports are not being given the support that they require by ASADA to effectively combat the current doping threat … Accordingly, ASADA has been unable to satisfactorily perform a number of its vital functions that support the Sports’ ADRV processes.[36]

Exercise and Sports Science Australia

Exercise and Sports Science Australia (ESSA) is an accrediting body for professional support personnel and sports scientists. It supports the findings in chapter 4 of the Wood Review.[37]

Australian Athletes Alliance

The Australian Athletes Alliance (AAA) is the peak body for Australia’s elite professional athletes, through eight major player and athlete associations that cover professionals in cricket, AFL, netball, basketball, football, rugby league, rugby union and horse-racing (jockeys).[38] AAA asked the Wood Review to endorse sport-specific, differentiated, anti-doping and sanction regimes – an approach which would result in those regimes not being Code-compliant.[39]

The Wood Review saw no merit in that approach:

In our view, there is no overall benefit from changing the present policy and thereby creating a dual system in Australia for national-level athletes. No evidence has been submitted to the Review which would warrant such an amendment to current anti-doping arrangements.

The independence and objectivity inherent in applying the Code to all Australian sports makes for a simpler, clearer and consistent anti-doping system, beyond the reach of internal sport politics and collective bargaining.

Accordingly, we do not agree with AAA’s argument regarding the reach of the Code in relation to sanctions or the ‘fit’ of the world anti-doping system overseen by WADA. Our view is that penalties under the Code are sufficiently flexible to allow for effective application in a professional team-sports environment. [40]

The approach of the Wood Review is consistent with the aims of WADA:

An aim of the 2015 Code is to unify doping regulations throughout the world, such that the Code might be considered similar to a body of international law … In respect to the [Code’s] reach into sports of national, rather than international operation the Code describes a purpose, ‘To ensure harmonized, coordinated and effective anti-doping programs at the international and national level with regard to detection, deterrence and prevention of doping.[41]

Commonwealth Games Australia

Commonwealth Games Australia (CGA) supports the consolidation of existing Federal Government functions in sports integrity under a new agency – Sport Integrity Australia – and the conduct of a two-year pilot of a new National Sports Tribunal. CGA also supports the signing of the Macolin Convention. CGA President Ben Houston said the National Sports Tribunal will benefit Commonwealth Games member sports, many of whom struggle with the resourcing in this area.[42]

Financial implications

According to the Explanatory Memorandum, the Bill will have no financial impact on the Commonwealth.[43] The AOC and COMPPS both argued that a further commitment of Commonwealth funding is necessary to ensure the NAD scheme is effective.[44] In terms of the NSOs, some smaller sports see financial benefit in having access to a nationally resourced sports tribunal.[45]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[46]

The Government acknowledges at page 2 of the Explanatory Memorandum that the Bill engages the following rights:

•            Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) – right to an effective remedy.

•            Article 14(2) of the ICCPR – right to presumption of innocence (which includes the right not to be compelled to self-incriminate[47]).

•            Article 17 of the ICCPR – privacy and reputation.

The Explanatory Memorandum discusses the human rights issues in detail in the Statement of Compatibility with Human Rights at pages 2–7. The Bill removes two opportunities for an athlete or support person to contest the evidence and process involved in the imposition of an infraction notice for an ADRV. However, the recipient is still given:

•            an opportunity to be heard before the infraction notice is issued and

•            the opportunity to contest the notice in an independent tribunal.

The Government considers that the rights to a fair hearing and a presumption of innocence are, therefore, largely preserved. However, as the Bill will lower the standard of proof for the issuing of a disclosure notice, it would appear that the Bill engages the right not to be compelled to self-incriminate under the ICCPR and also the common law privilege against self-incrimination.[48]

Threshold for issuing coercive disclosure notices and the privilege against self-incrimination

Proposed amendments to paragraph 13(1)(ea) and paragraphs 13A(1A)(a) and (b) of the ASADA Act (at items 46 and 47 of Schedule 1 to the Bill) change the standard of proof for the issue of a disclosure notice from ‘reasonably believes’ to ‘reasonably suspects’. This change in threshold, as well as the repeal by item 13 of Part 1 of the need for three ADRVP members to agree with the notice, will result in a reduced threshold for the issue of a coercive disclosure notice.

The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide), published by the Attorney-General’s Department (AGD), says that a document disclosure provision should normally impose a threshold of ‘reasonable grounds to believe’ that a person has custody or control of documents, information or knowledge which would assist the administration of the legislative scheme.[49]

The proposed disclosure notice provisions and their justification are discussed further under the ‘Key issues and provisions’ and ‘Part 4’ headings below.

Parliamentary Joint Committee on Human Rights

At the time of writing this Bills Digest, the Parliamentary Joint Committee on Human Rights had not yet reported on this Bill.

Key issues and provisions

Constitutional basis for legislation

The Wood Review noted:

The anti-doping framework, both domestically and internationally, is highly complex; it involves national and international governance, private corporations and NGOs in a complicated web of contractual agreements, private arbitration and government regulation which operates both coercively and by way of moral imperative and reputational protectionism.[50]

While there is no express Commonwealth legislative power for regulating sport or athlete drug use, section 3 of the ASADA Act identifies implementing Australia’s international anti-doping obligations as the foundation for the Act. Australia is a party to several international conventions which provide a basis in the external affairs power for Parliament to legislate. The ASADA Act and ASADA Regs implement the Council of Europe Anti-Doping Convention 1989,[51] the UNESCO International Convention against Doping in Sport,[52] and the Code. The Commonwealth is therefore able to rely on the external affairs power as the primary source of its power to legislate in this area.[53]

The voluntary submission to the Code and NAD scheme by organisations, athletes and other personnel through contracts extends the effective reach of the NAD scheme. Voluntary contractual submission to an anti-doping code means that a constitutional challenge should never be effective on its own to overturn an ADRV infraction.

Contractual submission is effectively coerced in three ways:

1.      International sporting organisations require regional and national sporting organisations have a Code-compliant anti-doping policy in order to be recognised as affiliated. If a body is not affiliated, athletes from that body cannot compete in higher level events.[54]

2.      Organisers of international competitions and major events require participants to be subject to a Code-compliant anti-doping policy or they are not permitted to compete.[55]

3.      Government funding to national level sporting bodies is made conditional on compliance with the Code. To be eligible for government funding a sporting organisation must be recognised as an NSO by SportAus.[56] To be recognised as an NSO, the organisation must have a Code-compliant, ASADA-approved anti-doping policy.[57] To achieve a compliant policy, the NSOs require:

•       athletes to submit to the policy to be eligible to compete

•       support personnel to submit to be allowed to work or volunteer and

•       state sporting organisations to submit to the policy in order to be affiliated.[58]

1.       

The Wood Review noted:

Anti-doping arrangements operate fundamentally on a ‘sport runs sport’ basis, with the adoption of Code-compliant anti-doping policies being a precondition for continued international recognition and government support.

In Australia, this manifests in NSOs developing and implementing Code-compliant, ASADA-approved policies; committing their athletes and support persons, through contractual arrangements, to abide by these policies; working with ASADA as the Australian NADO to implement effective anti-doping activities; and, through referral of ADRVP assertions from ASADA, being responsible for making the final decision on possible ADRVs. [59]

Part 1—Abolishing the ADRVP and appeal to the AAT

History of the Anti-Doping Review Panel

The ADRVP was created by amendments inserted in the ASADA Act in 2009.[60] ASADA was set up in 2006 and assumed the functions of a variety of existing agencies. It took over roles in drug testing, education and advocacy from the Australian Sports Drug Agency; it took over the Australian Sports Commission’s (ASC) policy development, approval and monitoring roles; it incorporated the ASDMAC and was given the power to investigate all allegations of ADRV in the Code. The CEO of the Australian Sports Drug Agency was appointed ASADA CEO and a Board headed by the ASADA Chair was appointed.[61]

The Australia Olympic Committee (AOC) extensively criticised the intertwined nature of the ASADA governance arrangements at the time it was set up. AOC President, John Coates said ASADA would become investigator, prosecutor, judge and jury.[62]

The AOC considered there was insufficient provision for the separation of the ASADA‘s policy making, administrative, investigative and prosecution functions. It particularly noted that there needed to be proper protection of the rights and roles of Australian sports organisations, athletes and athlete support personnel. The investigative regime to be put in place did not require ASADA to put its case to an independent hearing before declaring an athlete guilty, the AOC noted. And once an investigation was complete, ASADA alone had the power to determine whether an athlete should be sanctioned.[63]

In response to a number of controversial doping investigations, the governance arrangements were changed in 2009 to create a marked distinction between the administrative and investigative functions and the adjudication functions of ASADA.[64] The ASADA Chair position was abolished and financial and administrative functions concentrated in a new ASADA CEO position. Instead of the Board, a specialist Advisory Group was formed solely to give advice to the CEO in relation to the CEO’s functions. The group had no adjudicatory or administrative functions. The ADRVP was established to take on the quasi-judicial role of deliberating on rule violations. Day to day anti-doping policy issues were confined to the administrative sector.[65]

In some respects, the Wood Review proposes undoing those 2009 changes. However, the AOC does not oppose the proposed amendments.[66] The duplicated process was designed to provide an independent check on the power of the ASADA CEO to issue infraction notices. Stakeholders agreed, however, that this had not been the practical outcome of the system. Instead it had resulted in a cumbersome, time wasting process that was of little assistance to the sports tribunal.[67]

Wood Review consideration of ADRV process

The Wood Review examined the current ADRV process and found it was overly bureaucratic, inefficient and cumbersome.[68] The Coalition of Major Professional and Participation Sports (COMPPS) told the Wood Review:

The ADRV process is generally convoluted and confusing, and difficult for athletes and other stakeholders to understand. It is too bureaucratic, involving an inordinate number of procedural steps.[69]

The current ADRV process requires:

•            consideration of evidence by the ASADA CEO and

•            a second consideration by the ADRVP

before an infraction notice is issued. Flowchart 2 below shows the process visually.

ASADA estimates that the minimum time to pass from the ASADA CEO ‘show cause notice’ through to the end of the ADRVP process is eight weeks.[70] The decision by the ADRVP to assert an ADRV (marked ‘5’ in Flowchart 2 below) can then be challenged in the Administrative Appeals Tribunal (AAT). The WADA Code provides that anti-doping decisions can be appealed to the Court of Arbitration for Sport (CAS).[71] Appeals can be made to the CAS Appeals Arbitration Division and the Swiss Federal Tribunal.[72]

ASADA noted that the ADRVP has never once overruled the ASADA CEO. The ADRVP Chair explained:

The threshold that the Panel applies is that there is a possibility that an ADRV has occurred. In practice this has meant that the Panel hasn’t ever disagreed with the CEO, as the threshold that the CEO applies is higher in the first instance.[73] [emphasis added]

Flowchart 2—Current ADRV process[74]

COMPPS recommended that the ADRVP be abolished.[75] ASADA suggested that the opportunity for an athlete to respond to an ADRV allegation be deferred until the infraction notice is received.[76]

However, the Wood Review considered that issuing the ‘show cause notice’ had the merit of allowing the athlete the opportunity to engage with the allegations prior to hearing and potentially avoid delays at the hearing or avoid a hearing altogether if the athlete acknowledges the infraction.[77] It therefore proposed removing the ADRVP but allowing the athlete an opportunity to be heard before the ASADA CEO issues an infraction notice.[78]

The Wood Review also recommended abolition of appeals to the AAT.[79]

For the purposes of procedural fairness, there is no need for any aspect of the pre-hearing phase of the ADRV process to be subject to AAT review.

In our view, so long as participants have the opportunity to respond to allegations before the issue of an infraction notice – and have access to an affordable, efficient, and effective tribunal to have their matter heard should they elect – recourse to the AAT for a merits review of any aspect of the pre-hearing ADRV process is unnecessary and potentially dilatory.[80]

Under the Wood Review proposals, the athlete would then contest the notice in the proposed NST. Appeal to CAS Appeals Arbitration Division will also still be available.[81]

It appears that the athlete’s right to a fair hearing and an effective remedy are preserved under the proposed process. The amendments proposed in Part 1 of Schedule 1 to the Bill appear to maintain compliance with Australia’s international obligations under the ICCPR, Council of Europe Anti-Doping Convention 1989 and the UNESCO International Convention against Doping in Sport.

All major interest groups supported the recommendation. The Government agreed with the recommendation and the recommended process (see Flowchart 3 below) is reflected in the Bill.

Item 16 of Part 1 of Schedule 1 to the Bill repeals existing subsection 14(4) of the ASADA Act which requires the NAD scheme to establish a right of appeal to the AAT. A consequential amendment to the NAD scheme will be necessary to abolish the right to appeal to the AAT for review of a decision of the ADRVP.[82]

Flowchart 3—Proposed ADRV process[83]

Part 2—Protection of NSO personnel from civil actions

The ASADA Act protects the ASADA CEO and staff against civil action relating to the performance of the powers and functions of the CEO provided they have acted in good faith.[84] However, the NAD scheme requires NSOs to also perform some functions of the ASADA CEO. The Wood Review recommended that the government extend statutory protection against civil actions to cover NSO’s in their exercise of ADRV functions.[85]

Protection may be broader than intended

Proposed subsection 78(5) of the ASADA Act (at item 43 of Schedule 1 to the Bill) will extend a potentially much broader protection from civil action than currently applies to ASADA:

(5)              A national sporting organisation of Australia, or a person performing work or services for the organisation, is not liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith in implementing or enforcing the organisation’s anti-doping policy.

The provision protecting ASADA staff is limited to action pursuant to the CEO’s functions or powers. Proposed subsection 78(5) covers all actions taken in implementing or enforcing the organisations anti–doping policy. The actions are not limited to those required or permitted by law generally or by the NAD scheme in particular. The only requirement is that the action be implementing or enforcing the NSOs own anti–doping policy and be done in good faith.

The clear policy intent is to encourage NSO commitment to the NAD scheme, however, the provision goes beyond the recommendation of the Wood Review. Neither the Government Response nor the Explanatory Memorandum contain any indication that a broader provision than recommended was thought necessary and it may be unintentional.

Parliament may wish to consider whether:

•            proposed subsection 78(5) has been drafted too broadly and

•            whether protection for NSOs and staff should be limited to acts taken or required under the NAD scheme, rather than under the NSOs own anti-doping policy.

Exclusion of negligence and incompetence

It is common for statutory duties to require that duty be exercised with reasonable care. There is no such requirement here and indeed the protection against civil suit allows a person or organisation who carries out a duty or function under the NAD scheme negligently or incompetently to avoid repercussions provided they have acted in good faith.

The ASADA Act involves a balancing of the rights of athletes, officials and the sport itself. Given the very serious effect an ADVR can have on an athlete’s career and reputation, and conversely, the very serious effect undetected doping can have on the integrity of sport; Parliament might consider whether officials acting in good faith is sufficient protection for the athlete and sport or whether grossly negligent action should be excluded from protection.

Part 3—Enabling wider sharing of protected information

Part 8 of the ASADA Act provides for the management of information that comes into the possession of ASADA, ASDMAC or the ADRVP. Under existing subsection 67(1), it is an offence for an entrusted person[86] to disclose protected information[87] except in certain circumstances or to certain bodies specified in the Act.

Existing section 67(3) provides that a court or tribunal may not require an entrusted person to disclose protected information. In its current form, the Act protects only specified persons from being required to disclose protected information to a court or tribunal. NSO personnel, however, are not specified.

The proposed amendment to subsection 67(3) by item 45 of Schedule 1 to the Bill will apply to a person instead of only to entrusted persons. This will allow ASADA to share protected information with NSOs because NSO personnel will have:

•            the same secrecy obligations as ASADA personnel and

•            the same protection as ASADA personnel against being forced to reveal, for example, a secret source of information to a court or tribunal.

This provision implements part of Recommendation 19 of the Wood Review. Other elements of recommendation 19 are implemented in Parts 1 and 2 of the Bill.[88]

Part 4—Lowering the burden of proof for issue of a disclosure notice

At present, three ADRVP members and the ASADA CEO must reasonably believe that a person has information, documents or things that may be relevant to the administration of the NAD scheme before the CEO can issue a disclosure notice.[89] The power of the ASADA CEO to issue a disclosure notice is critical to intelligence-based investigations. To be effective, the power must be available where doping is reasonably suspected but there is no sample analysis to support the investigation.

The Wood Review found that the present threshold of reasonably believes resulted in disclosure notices generally only being granted by the ADRVP in circumstances where ASADA already had evidence to suggest that an ADRV has taken place – for instance, a returned positive sample or adverse analytical finding (AAF). [90] The Review therefore recommended that the threshold be changed to reasonably suspects.

Neither the Wood Review nor the Explanatory Memorandum gives a clear reason why the ASADA CEO would only issue a disclosure notice under the present legislation where evidence of an ADRV was already available. That is not the effect of the ASADA Act on its face.

The ASADA Act and the NAD scheme do not require, except in the case of medical practitioners, that the CEO hold a reasonable belief that any person has been involved in the commission or attempted commission of an ADRV.[91] The threshold of reasonable belief instead applies to whether ‘the person has information, documents or things that may be relevant to the administration of the NAD scheme’ – not whether any person has been involved in the commission or attempted commission of an ADRV per se.

Note that the proposed amendment to paragraph 13(1)(ea) of the ASADA Act (at item 46 of Schedule 1 to the Bill) will not change this position, as the threshold of reasonable suspicion does not apply to whether an ADRV has occurred, but to whether ‘the person has information, documents or things that may be relevant to the administration of the NAD scheme’. However, in proposed amendments to paragraphs 13A(1A)(a) and (b) (at item 47 of Schedule 1 to the Bill) the threshold is then linked to an additional requirement, for medical practitioners only, that the ASADA CEO reasonably suspects that the person has been involved, in that capacity, in the commission, or attempted commission, of a possible ADRV.

As Middleton J observed in Essendon Football Club v Chief Executive Officer of the ASADA (the Essendon FC case), the responsibilities of the ASADA CEO in administering the NAD scheme are very wide and include all the matters in clause 1.02 of the scheme.[92]

The proposed amendments to paragraphs 13(1)(ea) and paragraphs 13A(1A)(a) and (b) change the standard of proof for the issue of a disclosure notice from reasonably believes to reasonably suspects. This change in threshold, as well as the repeal in item 13 of Schedule 1 to the Bill of the need for three ADRVP members to agree with the notice,[93] will result in a significantly reduced threshold for the issue of a coercive disclosure notice.

Non-compliance with Attorney-General’s Department Guide to Framing Offences

The AGD Guide says that a document disclosure provision should normally:

•            impose a threshold of ‘reasonable grounds to believe’ that a person has custody or control of documents, information or knowledge which would assist the administration of the legislative scheme

•            give a person 14 days to comply with the notice and

•            impose a maximum penalty for non-compliance of six months imprisonment or a 30 penalty unit fine.[94]

In contrast to the above, the amendments in Part 4 propose:

•            a threshold of ‘reasonable suspicion’ the person has information, documents or things that may be relevant to the administration of the NAD scheme

•            no limit to the period that the ASADA CEO may specify in the notice and

•            a penalty for non-compliance of 60 penalty units but no penalty of imprisonment is applied.[95]

Where draft provisions depart from the Guide, the AGD website instructs Departments to consult with the Criminal Law Division in AGD before proceeding with draft provisions.[96] The Explanatory Memorandum does not indicate that there has been such consultation with AGD.

However, it was a Wood Review recommendation that the threshold for issue of a disclosure notice be changed to a reasonable suspicion. The Review said the reasonable suspicion ‘threshold for the exercise of similar powers is relatively commonplace in comparable statutory schemes and would be appropriate in these circumstances’ – but did not provide any such examples.[97]

In light of:

•            the broad responsibilities of the ASADA CEO

•            the width of the phrase ‘relevant to the administration of the NAD scheme’ and

•            the proposed provisions non-compliance with the AGD Guide

Parliament may want to examine whether a change to the legislation is necessary, or whether a change in the ASADA CEO’s practice in issuing disclosure notices would be sufficient.

Part 4—Removing self-incrimination as a defence to a disclosure notice

As noted above, both the common law and the ICCPR recognise a right to not be forced to incriminate oneself – often referred to (in a common law context) as the privilege against self-incrimination.

Currently subsection 13D(1) of the ASADA Act provides that an individual does not have to answer a question or give information if that might incriminate the person or expose them to a penalty. Existing subsection 13D(2) provides that if a person does produces a document or information, it cannot be used against them in criminal proceedings, or proceedings that might result in a penalty, other than proceedings for an offence against the ASADA Act or ASADA Regs, or an offence of providing false or misleading information under the Criminal Code Act 1995.

The AOC has long opposed the privilege against self-incrimination in this context and its President, John Coates, welcomed Wood Review recommendations that athletes and support people be compelled to give evidence about doping:

I am particularly pleased that the legislation establishing the Tribunal will include ‘the power to order a witness to appear before it to give evidence, and/or to produce documents or things; and the power to inform itself independent of submission by the parties’.

The AOC has long argued for this legislative support to the fight against doping in sport and, having repeatedly been knocked back, introduced similar requirements in its Anti-Doping Policy - making it a condition for member National Federations nominating athletes for selection in Australian Olympic Teams that they must include these requirements in their Anti-Doping policies…

So very much better that this be by statute rather than relying on contractual arrangements.[98]

Proposed subsections 13D(1) and (2) (at item 50 of Schedule 1 to the Bill) abolishes the protection against answering questions or producing information and substitutes an amended protection against use of that information against the person in criminal proceedings. As currently, information provided can be used in proceedings under the ASADA Act or the ASADA Regs (and therefore the NAD scheme), and for prosecution for providing false or misleading information (sections 137.1 and 137.2 of the Criminal Code). The information cannot be used in a prosecution for any other offence.

Therefore, unlike the current situation, the amendment would allow a person to be compelled to answer questions or give information that could then be used in evidence against them in proceedings before the NST (for example, in relation to an alleged ADRV).

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[1].              International Covenant on Civil and Political Rights, done in New York on 16 December 1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13 November 1980; Art. 41 came into force for Australia on 28 January 1994). See also Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT), Legal foundations of religious freedom in Australia: interim report, Chapter 6, JSCFADT, Canberra, 2017.

[2].              Council of Europe Convention on the Manipulation of Sports Competitions, opened for signature 18 September 2014, CETS No. 215 (not yet in force); Council of Europe, Treaty Office website, Chart of signatures and ratifications of Treaty 215.

[3].              J Wood, D Howman and R Murrihy, Report of the review of Australia’s sports integrity arrangements, (Wood Review), Department of Health, Canberra, 1 August 2018.

[4].              Department of Health, Safeguarding the integrity of sport—the Government response to the Wood Review, (Government Response), Department of Health, Canberra, 12 February 2019, p. 3.

[5].              Australian Sports Anti-Doping Authority Act 2006, section 10.

[6].              Ibid., section 21.

[7].              Ibid., Parts 5 and 7 respectively.

[8].              Ibid., section 41.

[9].              Australian Sports Anti-Doping Authority Regulations 2006, clauses 1.03A, 4.08 and 4.09 of Schedule 1.

[10].              World Anti-Doping Agency (WADA), ‘The Agency’s History’, WADA website.

[11].              World Anti-Doping Code 2015. Some 2017 amendments to the Code took effect on 1 April 2018 and are included in the 2015 version.

[12].              World Anti-Doping Agency (WADA), ‘The Code’, WADA website.

[13].              R Jolly, Australian Sports Anti-Doping Authority Amendment Bill 2014, Bills digest, 25, Parliamentary Library, Canberra, 10 September 2014, p. 4.

[14].              D Thorpe, A Buti, C Davies and P Jonson, Sports law, 3rd edn, South Melbourne, Oxford University Press, 2017, p. 413

[15].              ASADA Act, section 9.

[16].              ASADA Regs, subclauses 1.06(1) and (1A).

[17].              Ibid., pp. 411–412, 415.

[18].              Wood Review, op. cit., p. 209.

[19].              Department of Health ‘Consultation Hub: Review of Australia’s sports integrity arrangements – developing a Government response,’ Department of Health website.

[20].              Government Response, recommendation number 38, op. cit., p. 19. B McKenzie (Minister for Sport), Strengthening integrity in Australian sport, media release, 14 February 2019. B McKenzie (Minister for Sport) and P Dutton (Minister for Home Affairs), Protecting the integrity of sport, media release, 12 February 2019.

[21].              AOC, AOC welcomes integrity review and national sports plan, media release, 1 August 2018.

[22].              Wood Review, recommendation 17, op. cit., p. 111.

[23].              Government Response, op. cit., p. 12.

[24].              Ibid.

[25].              Government Response, op. cit., p. 3.

[26].              Wood Review, op. cit., pp. 102–139.

[27].              Government Response, op. cit., p. 9.

[28].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 2, 2019, The Senate, Canberra, 28 March 2019, pp. 10–13.

[29].              Sen D Farrell (Shadow Minister for Sport), Sports game plan a start but proof is in performance, media release, 1 August 2018.

[30].              ASADA, ASADA fully endorses the Federal Government’s sport integrity plan, media release, 12 February 2019.

[31].              AOC, AOC welcomes integrity review and national sports plan, media release, 1 August 2018.

[32].              AOC, AOC commends government response to the Wood Review, media release, 12 February 2019.

[33].              Paralympics Australia, Paralympics Australia supports new integrity measures to safeguard Australian sport, media release, 13 February 2019.

[34].              M Speed, Submission to Review Panel on Australia’s Sports Integrity Arrangements, The Coalition of Major Professional & Participation Sports Inc. (COMPPS), 2 October 2017, p. 6. P Sakkal, Sports spurn new national integrity body, The Age, 16 February 2019, p. 2.

[35].              COMPPS, submission, op. cit., p. 8.

[36].              COMPPS, submission, pp. 8–9.

[37].              Exercise and Sports Science Australia (ESSA), ‘Review of Australia's Sports Integrity Arrangements - Developing a Government Response’, ESSA website.

[38].              Australian Athletes Alliance (AAA), ‘Who we are’, AAA website.

[39].              Wood Review, op. cit., p. 110, citing Submission 25.

[40].              Wood Review, op. cit., p. 110.

[41].              Thorpe, et al, op. cit., pp. 411–412; citing the World Anti-Doping Code 2015, ‘Purpose Scope and Organisation of the World Anti-Doping Program and the Code,’ p. 11.

[42].              Commonwealth Games Australia, Integrity initiatives welcomed by Commonwealth Games Australia, media release, 12 February 2019.

[43].              Explanatory Memorandum, Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019, p. 1.

[44].              COMPPS, submission, pp. 6, 8–9. AOC, AOC commends government response to the Wood Review, media release, 12 February 2019.

[45].              Commonwealth Games Australia, op. cit.

[46].              The Statement of Compatibility with Human Rights can be found at page 2 of the Explanatory Memorandum to the Bill.

[47].              Attorney-General’s Department (AGD), ‘Presumption of innocence’, AGD website.

[48].              Australian Law Reform Commission (ALRC), Traditional rights and freedoms—encroachments by Commonwealth laws, ALRC report, 129, December 2015, Chapter 11 generally.

[49].              AGD, A guide to framing Commonwealth offences, infringement notices and enforcement powers, AGD, Canberra, September 2011, p. 90.

[50].              Wood Review, op. cit., p. 104.

[51].              Anti-Doping Convention, done in Strasbourg, 16 November 1989, [1994] ATS 33 (entered into force for Australia 1 December 1994).

[52].              International Convention Against Doping in Sport, done at Paris 19 October 2005, [2007] ATS 10 (entered into force generally and for Australia 1 February 2007).

[53].              Constitution, section 51(xxix).

[54].              For example, it a condition of recognition by the International Olympic Committee that International Federations within the Olympic Movement are in compliance with the Code. See Thorpe et al, op. cit., p. 412.

[55].              Thorpe et al, Sports law, pp. 412–413.

[56].              Wood Review, op. cit., p. 214.

[57].              SportAUS, 2014-2018 National Sporting Organisation Recognition Criteria, n.d. para. 6. The policy is currently under review. A March 2019 draft policy retains the requirement: SportAUS, 4.2 - DRAFT 2019-23 NSO/NSOD Recognition, Attachment A, 2019-23 NSO/NSOD Recognition Criteria, n.d. para. 7.

[58].              Wood Review, op. cit., p. 214.

[59].              Wood Review, op. cit., p. 109.

[60].              Australian Sports Anti-Doping Authority Amendment Act 2009.

[61].              R Jolly, Australian Sports Anti-Doping Authority Amendment Bill 2009, Bills digest, 41, 2009–10, Parliamentary Library, Canberra, pp. 4–5.

[62].              N Jeffery, ‘Flaws in anti-doping body: Coates’, The Australian, 13 January 2006, p. 3.

[63].              Ibid.

[64].              Australian Sports Anti-Doping Authority Amendment Act 2009.

[65].              R Jolly, Australian Sports Anti-Doping Authority Amendment Bill 2009, Bills digest, 41, 2009–10, Parliamentary Library, Canberra, p. 9.

[66].              AOC media releases, op. cit.

[67].              Wood Review, op. cit., pp. 133–134.

[68].              Wood Review, Chapter 4, Key finding 8, op. cit., p. 105.

[69].              Wood Review, op. cit., p. 131.

[70].              Wood Review, op. cit., p. 132.             

[71].              Wood Review, op. cit., p. 145.

[72].              Wood Review, op. cit., p. 110, 144, 146.

[73].              Wood Review, op. cit., p. 134.

[74].              Wood Review, op. cit., p. 136.

[75].              Wood Review, op. cit., p. 133.

[76].              Wood Review, op. cit., p. 132.

[77].              Wood Review, op. cit., p. 133.

[78].              Wood Review, op. cit., pp. 134–135, recommendation 24.

[79].              Wood Review, op. cit., pp. 131, 134.

[80].              Wood Review, op. cit., p. 133.

[81].              Wood Review, op. cit., p. 14, 152, 157, 161 and 162; recommendation 35.

[82].              See clauses 4.11, 4.12, 4.17 and 4.22 of Schedule 1 to the Australian Sports Anti-Doping Authority Regulations 2006.

[83].              Wood Review, op. cit., p. 137.

[84].              Section 78 of the ASADA Act.

[85].              Wood Review, recommendation 19, op. cit., pp. 113, 115.

[86].              Defined in ASADA Act, section 69.

[87].              Defined in ASADA Act, section 4.

[88].              Wood Review, op. cit., p. 115.

[89].              ASADA Act, subsection 13A(1A).

[90].              Wood Review, op. cit., p. 129.

[91].              ASADA Act, subsection 13A(1A). The ASADA Act provisions are repeated in the NAD Scheme at clauses 3.26A and 3.26B in Schedule 1 to the ASADA Regs.

[92].              Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2014) 227 FCR 1, [2014] FCA 1019, at para. [377].

[93].              Existing paragraph 13A(1)(c) of the ASADA Act.

[94].              AGD, A guide to framing commonwealth offences, op. cit., pp. 90–93.

[95].              Item 49 of Schedule 1 to the Bill increases the maximum penalty available to 60 penalty units.

[96].              AGD, A guide to framing commonwealth offences, op. cit., p. 8.

[97].              Wood Review, op. cit., p. 129.

[98].              AOC, media release, 1 August 2018, op. cit.