Bills Digest no. 25 2014–15

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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Dr Rhonda Jolly
Social Policy Section 
10 September 2014 

 

Contents

The Bills Digest at a glance

Purpose of the Bill

Structure of the Bill

Background

Committee consideration

Policy position of non-government parties/independents

Position of major interest groups

Financial implications

Statement of Compatibility with Human Rights

Report of Human Rights Committee

Key issues and provisions

Concluding comments

 

Date introduced:  16 July 2014

House:  House of Representatives

Portfolio:  Health

Commencement:  Sections 1 to 3 commence on Royal Assent. Schedules 1 to 5 on 1 January 2015. Schedule 6 commences immediately after provisions in Schedules 1 to 5 have commenced.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

 

The Bills Digest at a glance

What the Bill does

• This Bill aligns aspects of Australia’s anti-doping legislation, contained in the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act), with revisions recently made to the World Anti-Doping Code (the Code/WADC/WADA code) and the World Anti-doping Agency’s (WADA) International Standards (Standards). These revisions are due to come into force on 1 January 2015.
• The revisions have been based on a number of themes. This Bill specifically addresses certain of those themes. It deals with the issues of:

–      targeting athlete support personnel who are involved in doping
–      imposition of longer periods of ineligibility and
–      additional emphasis to be placed on information management to accommodate WADA’s move towards greater use of investigation and information gathering in the detection of drug cheats.

How the Bill works

• The ASADA Act sets out issues that must be addressed in the National Anti-Doping (NAD) Scheme. This Bill will require the NAD Scheme to authorise the chief executive officer (CEO) of the Australian Sports Anti‑doping Agency (ASADA) to commence operation of a new anti-doping rule violation (ADRV)—the ‘Prohibited Association’ violation. This violation will entail that it will be an ADRV for an athlete or support person to associate—in a professional or sport related capacity—with a person who is serving a period of ineligibility (as the result of a decision by an anti-doping organisation such as ASADA). The NAD Scheme will be required to authorise the CEO of ASADA to notify an athlete, ‘or other person’, if his or her association with another person may constitute an ADRV.
• The Bill will add to the current practice for ASADA to report on its website the details of a finalised ADRV by requiring that the CEO of the agency maintains a public record of ADRVs, to be known as the ‘Violations List’.
• The Bill will provide for a domestic means through which an athlete who has been denied access to a Therapeutic Use Exemption (TUE), (which allows the athlete to access essential medical treatment without being guilty of an ADRV) to seek review of the refusal. It is intended that this will occur as the result of the appointment of additional members of the Australian Sports Drug Medical Advisory Committee (ASDMAC) whose sole purpose will be review of decisions of the Committee.
• The Bill is intended to facilitate better information sharing across relevant authorities, while providing certain limitations on the release of information. This is intended to address the issue of proportionality in disclosure and human rights, which was of concern in drafting the new WADA Code.
• Other provisions in this Bill will align definitions in the legislation so that they are in keeping with definitions in the WADA Code.
• The Bill also includes simplified outlines of various sections of the ASADA Act.

Why the Bill has been introduced

• The Bill arises as the result of a long-standing Australian Government commitment to anti-doping.
• The Government is also a party to the United Nations Educational, Scientific and Cultural Organization (UNESCO)’s International Convention against Doping in Sport which requires signatories to implement conditions imposed under the WADC.

Purpose of the Bill

The purpose of the Australian Sports Anti-Doping Authority Amendment Bill 2014 (the Bill) is to amend the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act) to align that Act with the revised World Anti‑Doping Code (the Code) and International Standards (Standards) that come into force on 1 January 2015.[1]

Structure of the Bill

The Bill consists of six Schedules.

• Schedule 1 amends definitions in the current ASADA Act so that they align with the WADA Code. The Schedule also requires the NAD Scheme to allow the ASADA chief executive officer (CEO) to notify an athlete or other person of a potential violation of the anti-doping rules
• Schedule 2 makes amendments to the ASADA Act in relation to the operation and membership of the Australian Sports Drug Medical Advisory Committee (ASDMAC)
• Schedule 3 involves changes to the ASADA Act in relation to a ‘Violations List’ to be established under new section 19A as a publically available record of current ADRVs
• Schedule 4 repeals the definitions of the current classifications of information in the ASADA Act. These are to be replaced with a new concept of ‘protected information’
• Schedule 5 outlines other amendments to the ASADA Act and
• Schedule 6 provides simplified outlines for the various parts of the ASADA Act. These are intended to assist to provide better general understanding of the Act.

Background

World Anti-Doping Agency

Various substances have been used to enhance athletic performance for centuries.[2] Most sports introduced some form of drug testing during the 1970s to attempt to combat substance abuse in the modern sporting environment. However, testing regimes to identify drugs seemed consistently to lag behind the development and introduction of new substances, such as anabolic steroids.

During the 1990s, governments and international authorities considered various policies and actions to combat the increasing use of drugs in sport, but a major problem appeared to be that these efforts were uncoordinated. In an effort to rectify this situation, in 1999 the International Olympic Committee (IOC) convened a world conference on sports doping. As a result of this conference, the World Anti-Doping Agency (WADA) was established in late 1999.[3]

WADA developed the World Anti-doping Code (WADC), which applies to all athletes and to all those who assist athletes in their preparation for international sporting participation. All National Olympic Committees and International Sports Federations are required to sign the WADC.

As governments were not bound by the WADC, in October 2005 the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted the International Convention against Doping in Sport.[4] Parties to this Convention (of which Australia is one), are required to implement the WADC.

The WADC applies to anyone who participates in sport at the international or national levels or at lower levels of competition, as well as to athlete support persons, including coaches, agents, managers and medical personnel.[5]

Review of World Anti-doping Code

In 2006, to take advantage of advances in anti-doping, and to build on experience that may have been gained by organisations and governments in applying the WADC, a review of the Code took place. The review involved considerable consultation with stakeholders and sporting participants over a period of time. As a result of the review process a revised Code was adopted in 2009.

Review of the 2009 Code has recently taken place. This has involved a two year period of consultation which commenced in November 2011. International sporting federations, national organisations and those governments who have ratified the UNESCO Convention adopted the new code at the fourth World Conference on Doping in Sport held in South Africa in November 2013. The new Code will come into operation on 1 January 2015.[6]

Changes to the Code have been categorised under several themes:

• imposition of longer periods of ineligibility for real cheats and more flexibility in sanctioning in other specific circumstances
• consideration of the Principles of Proportionality and Human Rights
• support for the increasing importance of investigations and use of intelligence in the fight against doping
• amendments to target Athlete Support Personnel who are involved in doping
• additional emphasis on smart test distribution planning and smart menus for Sample analysis and
• finding a clearer and fairer balance for the interests of International Federations and National Anti-Doping Organizations and making the Code clearer and shorter.[7]

Australian Sports Anti-doping Authority

The Australian Government has been pro-active in the fight against drugs in sport. In 1990 it established an independent statutory agency, the Australian Sports Drug Agency (ASDA), to deal with drug testing and drug education. However, as ASDA was not empowered to deal with issues relating to possession of or trafficking in prohibited substances or methods, in 2006 it was replaced by the Australian Sports Anti-Doping Authority (ASADA), and that body was given more power to deal with drug use in sport.

A National Anti-Doping Scheme (NAD) was established under section 9 of the Australian Sports Anti-Doping Authority Act 2006 which established ASADA. The NAD scheme authorises ASADA to:

• plan, implement, evaluate and monitor education and information programs for doping-free sport for all participants
• encourage and promote research relevant to sports drug and safety matters, including sociological, behavioural, juridical and ethical studies
• undertake the role and responsibility of a National Anti-Doping Organisation for Australia under the UNESCO International Convention against Doping in Sport and the WADC
• provide services relating to sports drug and safety matters to a sporting administration body in accordance with contractual arrangements with the body on behalf of the Commonwealth
• undertake results management for a sporting administration body regardless of whether ASADA has conducted the sample collection
• delegate results management responsibilities to International Federations in accordance with the WADC and
• undertake activities relating to sports drug and safety matters referred to it by a sporting administration body.[8]

Committee consideration

Senate Selection of Bills Committee

The Senate Selection of Bills Committee met 16 July 2014 and decided to defer consideration of the ASADA Bill to its next meeting.[9] On 27 August the Committee met again and referred the Bill to the Community Affairs Legislation Committee for inquiry and report by 27 October 2014.[10] The reasons cited for referral were:

• there is not sufficient justification for increasing ASADA powers
• the Coalition opposed the Australian Sports Anti-Doping Authority Amendment Bill 2013 and the reasons cited are still valid
• increased intelligence gathering and investigative powers may be opposed by athletes.[11]

Submissions to the Community Affairs Legislation Committee inquiry close on 3 October 2014. Information is available on the inquiry homepage.[12]

Senate Scrutiny of Bills Committee

The Senate Scrutiny of Bills Committee has made comments on two sections of this Bill.[13] This Committee has noted that proposed subsection 67(2) under which a defendant bears an evidential burden of proof in establishing that an offence relating to disclosing protected information does not apply, is consistent with principles in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

Second, the Committee has commented on proposed sections 68–68E which set out the circumstances in which disclosure of protected information will be authorised. The Committee has noted that the statement of compatibility discusses whether these provisions engage the right to privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and that the statement in turn outlines a justification for the proposed approach in the Bill. For this reason the Committee has concluded that it should be left to the consideration of the Senate as a whole whether the sections ‘trespass unduly on personal rights and liberties’.

Policy position of non-government parties/independents

As noted earlier in this Digest, Australian Governments of all persuasions have been proactive in dealing with drug use in sport. In general, the Opposition has also supported government actions. It appears that this is the case with this legislation as at the time of writing this Digest no public objections have been recorded.

Similarly, while in the past there have been comments made concerning aspects of government policies relating to anti-doping and accompanying legislation, no adverse comments on this legislation have been registered by independents or members of other non-government parties.

Position of major interest groups

Discussions of the WADA Code and the ASADA Act by major sporting interest groups also inevitably raise the issues of the extent to which both infringe human rights, and more importantly, the extent to which this is acceptable.

For some time there have been concerns raised by some groups that the WADA Code is ineffective. By implication, therefore, the argument follows that the means employed by national anti-doping organisations to implement the principles embodied in the Code, are ineffective. Brendan Schwab, lawyer and general secretary of Australia’s Athlete’s Association, for example, cites the WADA director-general’s comments in the lead-up to the 2012 London Olympics that statistically only between one and two per cent of doping incidents are found by WADA testing and investigation.[14]

Schwab maintains that WADA engages in political coercion which is accepted by national governments and sporting organisations because they fear exclusion from the Olympic Games. With reference to the recent and ongoing investigations into the Australian Rules and Rugby League football codes by ASADA, Schwab calls upon athletes to disassociate themselves from WADA. Schwab contends WADA’s justifications for the violations of human rights and fundamental legal principles are not exceptionally compelling, unlike such impositions in the name of national security. A breach of the WADA Code is merely a breach of a private contract between an athlete and an employer or sport.[15]

Stakeholders who have previously considered the ASADA Act have frequently argued that its provisions impinge on the rights and freedoms of athletes. The Commercial Bar Association of Victoria maintained for example in its comments on amendments made in 2013 that there were no checks and balances in proposals for change that guaranteed basic human rights.[16] Moreover, the proposals relied too much on the integrity of the CEO of ASADA in relation to requests for persons to attend interviews and produce documents.[17]

It may be that similar objections will be raised by individuals and organisations which in the past have been wary of the potential anti-doping legislation to violate human rights. At the time of writing this digest none have surfaced, however.

It seems unlikely also that those organisations which have been supportive of changes in the past—the Australian Olympic Committee (AOC), for example—will raise any objections to the proposals in the Bill.[18] Indeed, it has been reported that John Coates, president of the AOC considers the rules will give sports organisations more control over those working professionally with athletes.[19]

Financial implications

The Explanatory Memorandum to this Bill notes that there are no financial ramifications for the Government which would result from its passage. Items 5 and 6 of Schedule 2 to the Bill propose to amend section 53 of the ASADA Act to provide for three new members of ASDMAC to perform review functions. It is likely, however, that this will have a minimal impact on the ASADA budget.

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.[20]

The Government considers that the Bill is compatible ‘with human rights as it promotes rights, and to the extent that it limits rights, these limitations are reasonable, necessary and proportionate to achieving a legitimate objective’.

Report of Human Rights Committee

The Joint Committee on Human Rights considered the ASADA Bill at its meeting on 25 August 2014.[21] The Committee raised the following matters:

Context of human rights assessment

The Committee noted that concerns have been expressed that ‘consent’ to the WADA Code provisions which is implied in many athletes’ contractual agreements with sporting organisations may not be ‘truly voluntary’. This is because a condition of allowing the athletes to play their sport is that they agree to the rules of their association, and these incorporate the WADA Code.

The Committee did not see the powers given to ASADA in this context as disproportionate. It considered powers in the Bill and in the ASADA Act generally were ‘primarily intended to be used in support of the private law contractual obligations between athletes and other persons and their sports federations, and are not intended to facilitate the investigation of criminal offences’.[22]

Freedom of association

The Committee also commented on Article 22 of the International Covenant on Civil and Political Rights (ICCPR) which is concerned with the right to freedom of association with others. As is noted in more depth in discussion of the provisions in this Bill later in this Digest, this right supports many other rights, such as freedom of expression, religion, assembly and political rights. As the Committee has observed:

Without freedom of association, the effectiveness and value of these rights would be significantly diminished. The existence of associations, including those that peacefully promote ideas and values that may not accord with the views of the majority, is recognised as a cornerstone of democracy. The right prevents the state from imposing unreasonable and disproportionate restrictions on the right to form associations… [23]

However, this Bill proposes that the head of ASADA will be able to implement an ADRV to prohibit association where an athlete associates with an athlete (or other person) who has been banned from sport, or been criminally convicted or professionally disciplined. The Committee points out that the statement of compatibility notes the limits on the right to freedom of association in the Bill and that is this limit as ‘an important measure for the protection of public health and morals’.[24]

In the Committee’s view, ‘for a limitation on the right to freedom of association to be permissible the measure must be “necessary” and not merely important’. It continues that this being the case, there is a significant question about compatibility of the measure with the right to freedom of association. It acknowledges that it is intended that limitation of the right to freedom of association will be ‘minimised’ through the inclusion in regulation of a provision ‘to the effect that the new ADRV only applies insofar as it is not inconsistent with Article 22 of the ICCPR’.[25] The Committee agrees this ‘will constitute an important and necessary safeguard’. At the same time it considers it preferable that such a provision should be included in the Bill, not in regulations and recommends that this is the case.[26]

Right to a fair hearing

The Committee has also expressed concern about the proposal to increase the period that action in relation to a possible ADRV may be commenced from eight years to ten years (see more discussion in the section on the provisions in Schedule 5 of the Bill). It explains that this proposal is relevant in the context of a person’s right to a fair hearing in both criminal and civil cases and that the right is protected by the ICCPR and may engage other rights, such as the presumption of innocence. It points out that the limitation period of eight years is already ‘considerably longer than the statutory limitation periods that apply in relation to other contractual or civil law claims in Australia’. Therefore, the increased time period may ‘limit the right to a fair hearing’ in human rights terms. As such, it seeks advice from the Minister for Sport regarding the compatibility of the Bill with the right to a fair hearing.[27]

Prohibition against retrospective criminal laws

Finally, the Human Rights Committee raised concerns that this Bill may impose retrospective and additional penalties on people who have previously been criminally convicted and served their sentence. It provides the example of someone may have committed a drug offence as an athlete, been subject to a penalty, and then subsequently engaged professionally as a coach.

To the extent that the new ADRV would prohibit sports people associating with coaches who have committed criminal offences which may be ADRVs in the last six years, this may impose an additional penalty on the coach where an athlete is no longer permitted to use their services. In human rights terms, the application of an additional penalty to a person who has been convicted of a criminal offence may constitute a violation of the prohibition against retrospective criminal laws.[28]

The Committee seeks advice from the Minister for Sport on whether the prohibited association ADRV is compatible with the prohibition on retrospective criminal laws.[29]

Key issues and provisions

Essentially, this legislation amends the ASADA Act to make it consistent with changes to the WADC. The WADC changes will come into effect in January 2015.

Schedule 1: prohibited association

Schedule 1 of the Bill proposes to amend the definitions of ‘athlete’ (item 1) and ‘support person’ (item 2) so that they are consistent with definitions in the WADC.

Existing section 13 of the ASADA Act specifies issues that the NAD scheme (at Schedule 1 to the Australian Sports Anti-Doping Authority Regulations 2006) is required to address.[30] Item 3 of the Bill inserts proposed paragraph 13(1)(fa) to require the NAD scheme to authorise the CEO of ASADA to notify an athlete or other person that association with a support person described in Article 2.10.1, 2.10.2 or 2.10.3 of the WADC may be a possible violation of the anti-doping rules.

The amendment will enable regulations to be made to provide that it will be a possible ADRV for an athlete or an athlete support person to associate—in a professional or sport related capacity—with a person who is serving a period of ineligibility as the result of a decision by an anti-doping organisation, such as ASADA.[31] This prohibition on association will also apply if a person has been convicted of conduct that would have been deemed a violation of anti-doping rules under the WADC.[32] Under the Code, the prohibition of association will apply for the period for which a person has been deemed ineligible, or for the longer of the sentence imposed or a period of six years from the time a person was convicted.[33]

The proposed section will require the NAD scheme to authorise the CEO of ASADA to notify an athlete, ‘or other person’, if his or her association with another person may constitute an ADVR.

Comment

Lawyers Antonio Rigozzi, Marjolaine Viret and Emily Wisnosky note that the prohibited association item in the WADC was originally phrased in broader terms to prevent all association with persons found to have been involved in doping, where athletes knew, or should have known, about the involvement of those persons in doping.[34] These commentators note that stakeholders in the WADA consultation discussions on the Code agreed in principle that holding the member of athletes’ entourages to account for their actions and influence should be a priority in the fight against doping. Where they differed, however, was with the various iterations of the wording of this requirement. One of the main objections to earlier iterations of the prohibited association item was the perceived difficulties involved in establishing whether a particular athlete knew, or indeed, should have known, about whether a person in his or her entourage was involved in doping.

Various revisions were made to the original WADC item. Some were in response to legal opinion obtained by WADA from a former judge at the European Court of Human Rights (ECHR) and now President of the International Institute of Human Rights, Jean-Paul Costa. Justice Costa considered it necessary that any prohibition on association had to be made clear, in writing, to athletes and persons that they were to be prohibited from associating with such people or they would be subject to the new rule. While proposed paragraph 13(1)(fa) requires the NAD scheme to authorise the CEO of ASADA to notify an athlete or other person that association with a support person may be a possible violation of anti-doping rules, it does not state this must be in writing.

Justice Costa approved the WADC general period of prohibited association as six years, unless the sentence imposed on a criminal conviction or disciplinary sanction is longer than six years, in which case the longer period will apply.[35]

While Justice Costa made little specific reference to the issue of human rights, as the Explanatory Memorandum to this Bill notes, the WADC has had to take into account Article 22 of the ICCPR in framing the prohibited association rule—Article 22 of the ICCPR states that everyone is entitled to ‘the right to freedom of association with others’. [36] It could be argued that prohibited association violates that right, but the Explanatory Memorandum maintains that the second provision of Article 22 makes it clear that lawful restrictions on the freedom to associate are possible.[37] Article 22(2) states:

No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.[38]

Therefore, it appears that restrictions under the ASADA Act, ASADA Regulations and the NAD scheme fulfil the requirement that restrictions must be prescribed by law. In addition it can be argued that the prohibited association restriction also protects the fundamental rights of athletes to participate in sport that is free from doping; it promotes good health and helps to ensure that people who participate in sports at the grass level are less likely to encounter a culture of doping. Finally, as the Explanatory Memorandum argues, it appears that the prohibited association restriction is necessary to counter the threats to public health posed by doping practices.[39]

Rigozzi et al conclude, on the other hand, that Article 2.10 of the Code remains ‘quite broad’. They consider ‘it could potentially encompass a range of activities that only have a tenuous link to sports generally and doping specifically’.[40] In addition, the provision could ‘conceivably create liability for association with entities and organizations, as well as natural persons’.[41]

In another paper on the new Code, Rigozzi and fellow lawyer, Brianna Quinn also make points about the WADC that may be relevant in the context of the CEO of ASADA notifying athletes or other persons of possible violations of anti-doping rules. Rigozzi and Quinn acknowledge that the Code, (as does this Bill), attempts to minimise the imposition on freedom the prohibited association rule makes, and that the concept is based on the rationale that support persons should not engage in conduct that is inconsistent with their responsibility to discourage athletes from doping. Nonetheless, Rigozzi and Quinn add that there remains a burden on athletes to demonstrate that an association is not in a professional or sports-related capacity.

They suggest further that other provisions in the Code, which state that support persons who use prohibited substances without valid justification are subject to disciplinary sanctions, ‘may potentially be considered to be disproportionate’ to the legitimate aim of intensifying the fight against doping in sport.[42] This appears to imply that in the case of this Bill ‘potentially’ is also relevant, for there is the potential for a CEO of ASADA to make subjective judgements which may have dire consequences for the career of a support person.

In addition to Rigozzi and Quinn’s comments, it should be pointed out that nowhere in the WADA code, nor in this legislation, are the terms ‘professional’, or ‘sports-related capacity’, defined.

Schedule 2: Australian Sports Drug Medical Advisory Committee

Existing section 53 of the ASADA Act provides for the membership of the Australian Sports Drug Medical Advisory Committee (ASDMAC). Schedule 2 of the Bill proposes amendments to the ASADA Act to provide for three additional members of the ASDMAC to be appointed (proposed paragraph 53(c), at item 6). The task of these members will be to review decisions of the ASDMAC in relation to the award of Therapeutic Use Exemptions (TUE). These exemptions allow certain athletes to access medical treatment without their being accused of violating WADA’s prohibited substance list.

Item 1 amends section 4 and proposes to insert definitions of an ‘ASDMAC primary member’ and an ‘ASDMAC review member’ to distinguish between those members who make TUE decisions initially and committee members whose only role is to review those decisions.

Existing subsection 54(2) provides that the Minister must not appoint a person as an ASDMAC member unless the person satisfies the criteria concerning the required qualifications demanded of ASDMAC members. Item 7 inserts subsection 54(2AA) to add a further qualification which requires that at least one person appointed as an ASDMAC primary member must have experience ‘in the care and treatment of athletes with impairments’.

The proposed changes will also provide Australian athletes with the opportunity to question decisions made by the ASDMAC without having to appeal in the first instance to WADA.

As the Explanatory Memorandum notes, these changes reflect variations made under the new International Standard for Therapeutic Use Exemptions which will come into force in 2015.[43]

Comment

Justice Costa did not comment specifically on the changes to the TUE Standard in his advice. He observed, however, that the existing WADC (Article 8.1) requirement is that anti-doping organisations with responsibility for the management of test results must guarantee that any person suspected of having committed an anti‑doping rule violation must be granted the due process of a fair hearing. In so doing, these organisations must have particular regard to principles generally enshrined in the relevant international human rights instruments.[44]

One of the principles enshrined in these instruments is the right to an effective appeal and the right of access to a tribunal which is not impeded by excessive limitations. While it could be argued that the current Australian requirements of appeal on TUEs, which involve application to an overseas body, are not overly excessive, the changes may also enhance compliance with the requirements of Article 2 of the ICCPR. This provides that states must ensure that a person whose rights and freedoms may be violated will have ‘an effective remedy’.[45]

Schedule 3: Violations List

Proposed Part 2A of the ASADA Act, inserted by item 16 of Schedule 3 of the Bill requires the CEO of ASADA to establish and maintain a Violations List (proposed section 19A). The Violations List is to contain information about an athlete or support person who ‘has been sanctioned by a sporting administration body in relation to an anti-doping rule violation’ and whose appeal against such a violation has been completed, the person has waived his or her right to appeal, or the time provided to lodge an appeal has expired. Information required in relation to an anti-doping rule violation is contained in proposed subsection 19A(3):

• the name of an athlete or support person
• for an athlete—date of birth, sport and the name of an athlete’s team if applicable
• the nature and date of the anti-doping violation and
• the consequences of the violation including any period of ineligibility.

In addition, the CEO may include any other information he or she considers appropriate (proposed subsection 19A(4)).

There is flexibility for the CEO not to include information relating to certain violations if offenders were under the age of 18 years at the time of the violation and the offence was a first time violation, if the inclusion of the information on the List may prejudice an anti-violation investigation or if WADA has authorised non‑inclusion on the List (proposed section 19A(5)).

The Violations List will replace a Register of Findings. Currently, ASADA’s Anti-Doping Rule Violation Panel (ADRVP), a group with relevant expertise in sports medicine, clinical pharmacology, sports law, ethics or investigative practices or techniques and appointed by the Minister can place an entry on a Register of Findings to indicate that it considers a violation may have taken place based on evidence it has assessed. Existing section 13 specifies issues that the NAD scheme is required to address.[46] Paragraph 13(1)(f) provides that the NAD scheme must authorise the ADRVP to investigate possible violations of the anti-doping rules. The NAD scheme must provide for the ADRVP to make ‘findings’ relating to such investigations (paragraph 13(1)(h)) and maintain a register of these findings (paragraph 13(1)(i)). The NAD scheme must also authorise the CEO to make recommendations to sporting administration bodies as to the consequences of such findings (paragraph 13(1)(ja)). Item 5 of Schedule 3 will amend paragraph 13(1)(h), so that the ADRVP will make ‘assertions’ rather than ‘findings’ following investigations into possible violations of the anti-dumping rules. Accordingly, item 6 will amend paragraph 13(1)(i) to remove the requirement for the ADRVP to maintain the Register of Findings and instead requires the Panel to notify the CEO of assertions about possible violations. The NAD scheme must then authorise the CEO to notify athletes, support personnel and sports administrators of the assertions and to make recommendations about the possible consequences arising from the assertions (paragraphs 13(1)(j) and 13(1)(ja), as amended by items 7 and 8).

Names will not be included on the Violations List until after an ADRV has been finally determined (proposed subsection 19A(2)). This will require that an individual accepts he or she has committed a violation or by the exhaustion of the process of hearings and appeal to the Administrative Appeals Tribunal (under proposed subsection 14(4)).

Requirements under the Violations List provisions appear to be in direct response to the Federal Court findings relating to the ambiguity surrounding the role of the ADRVP and the purpose of the Register of Findings. As the Explanatory Memorandum points out, in 2013 the Federal Court found fault with the arrangements under which names were placed on the Register of Findings. At present this occurs after ASADA has provided information to the Panel about a potential violation of the WADC. The Panel assesses the information and decides on whether to enter an athlete’s details on the Register of Findings and whether to recommend sanction to the administrative body of the sport in question.

In its 2013 decision the Federal Court declared that the ADRVP was only able to make assertions relating to a possible anti-doping violation; it was not entitled to conclude that a violation had taken place.[47] Previously, the Administrative Appeals Tribunal (AAT) had indicated in its decision in the case of an international cyclist (known as XZTT) that it considered the ADRVP a hearing body within the meaning of Article 8 of the WADC.[48] Therefore, that its role was to decide that an anti-doping rule violation had indeed been committed.

The Government, however, considered that the AAT finding:

… was not consistent with the legislative intention, which is that the role of the Panel is to make a finding that an athlete or support person had possibly committed an anti-doping rule violation, while the role of the sport is to determine whether an anti-doping rule violation has in fact been committed. [49]

The Federal Court finding confirmed this view and a regulation was made to make it clearer that it was not the role of the ADRVP to act as a hearing panel on matters relating to ADRVs.[50] According to the Explanatory Memorandum, removal of the requirement for the ADRVP to make a ‘finding’ and record this on a Register ‘midway through the ADRV process’ as this Bill intends, will eliminate confusion about the role of the Panel. [51]

Comment

Riggozi and his colleagues comment on the WADA requirement in Article 14, upon which the idea of a Violations List is based, that the revised WADC explicitly acknowledges a point made by various stakeholders and commentators, namely that publication of a disciplinary decision represents a true sanction.[52] They claim however, that Article 10.13 which states that ‘a mandatory part of each sanction shall include automatic publication’ does not then address the issues that arise as a result of the automatic character of the publication.[53] They contend that as it is generally accepted that public disclosure of a disciplinary action encroaches upon personality rights that disciplinary panels ‘will have to ensure that its automatic publication is accounted for when evaluating the proportionality of the sanction. This aspect is particularly pertinent keeping in mind that no disciplinary sanction may be imposed without fault’.[54]

Further, Riggozi et al argue that one other section of the Code was specifically changed in response to criticism of earlier drafts. This is that organisations should disclose violations within 20 days of a final appellate decision or an appeal waiver. An earlier draft required publication within 20 days of the original decision. This is reflected in proposed subsection 19A(2) of this Bill.

The second criticism of earlier drafts of the Code concerns the proportionality of the requirement that information should be published for at least one year on the Internet. In Riggozi et al’s view the proportionality of this requirement ‘appeared questionable, especially based on data protection considerations’. Article 14.3.4 of the final Code now provides that the publication must be made by leaving the information up for the longer of one month or the duration of any period of ineligibility. This is reflected in proposed subsection 19A(6) of this Bill.

Riggozi and his colleagues are also pleased that under the Code publication is no longer mandatory in relation to offences committed by a minor and that optional public disclosure in such cases ‘shall be proportionate to the facts and circumstances of the case’ (Article 14.3.6). This Bill does not use the term proportionate, and gives the CEO discretion to include violations by minors and other information on the Violations List if he or she considers it appropriate.

In Justice Costa’s view the longstanding public dissemination or publication of sanctions is a seemingly effective, practice. Costa sees the modification to the WADC as ‘technical more than anything else’. He considers there are safeguards built into Article 14.2 upon which the proposed modification does not seem to impinge.[55] Also on the whole, he does not consider the publication provision in the current Code or the revised draft will ‘interfere excessively with the respect for athletes’ private (and family) life. It has a legitimate objective and does not seem to be disproportionate’.

Justice Costa expresses a reservation. In his opinion, matching the length of publication with the length of an athlete’s ineligibility may have negative repercussions on private, professional and family lives, for example, in terms of the ability to find employment. He considers therefore it may have been worthwhile allowing persons to request that the publication of his/her ineligibility was terminated before the term of ineligibility expired.[56]

Schedule 4: information management

Existing Division 1 of Part 8 of the ASADA Act relates to access to and the use of customs information. Item 8 of Schedule 4 repeals Division 1 of Part 8 which repeals sections 67 and 68. Proposed section 67 will make it an offence, with a maximum penalty of two years’ imprisonment, to disclose protected information, unless it is to an authorised person or is required under federal, state of territory laws (proposed subsection 67(2)). The Bill intends to authorise entrusted persons to disclose protected information under proposed section 68 for the purposes of the ASADA Act or regulations made under the Act, to comply with the WADA code or to assist the CEO of ASADA, the ASDMAC, the ADVRP or the ASADA Advisory Group to perform their functions.

These proposed changes appear to accommodate Article 22, new paragraph 2 of the WADC, which requires governments to put in place legislation, regulation, policies and administrative practices for cooperation and sharing of information between anti-doping organisations, while protecting against unauthorised disclosures.[57]

Comment

Ways in which recent high profile drug instances, such as the Lance Armstrong case (see box below), were discovered and prosecuted, were the catalyst for a major paradigm shift associated with the most recent revision of the WADA Code. This shift has been towards further developing instruments to enable detection and prosecution of anti-doping rule violations which are not simply associated with testing for prohibited substances. In addition to information gathering, investigation has become an important weapon in the fight against doping. Hence, amendments in the Code, which are in part reflected in this Bill, have been to clarify the duties and responsibilities of stakeholders with respect to information gathering and investigation and to assist those stakeholders in their investigations.[58]

Concerns were raised about the power given to the CEO of ASADA under amendments to the ASADA Act in 2013. The Senate Standing Committee for the Scrutiny of Bills commented that despite there being certain protections in the legislation, the CEO’s power to disclose information, including personal information, remained broad.[59] It could be argued that a similar comment could be made about proposed section 68B. The CEO is given discretionary power to disclose information to legal and intelligence gathering agencies and to authorise entrusted persons who are also able to carry out this task.

To this end, according to the Explanatory Memorandum, Schedule 4 of the Bill proposes to alter secrecy provisions in the current ASADA Act to simplify, enhance and improve information gathering for ASADA. A category of ‘protected information’ will be introduced to replace various categories of information defined in the existing legislation. Protected information is to mean information obtained for the purposes of the ASADA Act, or regulations made under the Act, which relates to the private affairs of a person and which can identify or be used to identify that person (item 2).

Schedule 5: increasing limitation period

Schedule 5 (item 7, amended subsection 13(3)) increases the period that action in relation to a possible ADRV may be commenced from eight years to ten years. This is in keeping with WADA’s move away from seeking to uncover drug cheats simply through testing regimes. As the Explanatory Memorandum points out, increasing the time period for investigation improves the chances for agencies to uncover sophisticated doping programs and to undertake retrospective analysis of stored drug samples once new technologies are developed.[62]

Comment

In former Justice Costa’s opinion, limitation periods promote legal certainty and ‘protect potential defendants against tardy complaints and avoid legal actions being brought a very long time after the alleged facts have taken place in which the provision of evidence would be arbitrary or even impossible’.[63] At the same time, Costa notes there is the concept of a ‘right to finality’, which could be said to be similar to an entry in a person’s criminal record and the deletion thereof.[64] He notes that the European Court of Human Rights has censured the retention of records of individuals indefinitely or for too long a period in a number of instances, laying down a principle of deletion (with regards to criminal matters).[65] Having made this point Costa adds, however, that in his opinion, the increase in the limitation period in this instance could be considered reasonable, given that ‘it is a matter of taking legal action against, and sanctioning, serious cheating’.[66]

Concluding comments

This Bill is intended to align Australia’s anti-doping legislation with the revised WADC and International Standards relating to TUEs that come into force on 1 January 2015. While the proposed changes in the Bill will have some effect on human rights, it appears that these have been seen as generally proportional to the benefits they are likely to deliver in detecting and dealing with drug use violations. At the time of writing this Digest there has been no objections raised by Australian stakeholders concerning either the revisions to the WADC or the proposals in the Bill.

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