Chapter 2


Chapter 2

Key issues

2.1        The proposed amendments in the Australian Sports Anti-Doping Authority Amendment Bill 2014 (Bill) are intended to facilitate the implementation of a suite of measures contained in the 2015 World Anti-Doping Code (Code). These measures seek to address the increasingly sophisticated and complex means through which doping in sport occurs.

2.2        Witnesses to the inquiry recognised the importance of effective anti-doping policies and practices for the benefit of the health and wellbeing of athletes, as well as the integrity of sports, and expressed broad support for the measures in the Bill.
The committee heard that the WADA Code plays an important role in providing a basis for the harmonisation of international anti-doping efforts.[1]

2.3        While concerns were raised with regard to some measures, submitters generally emphasised the importance of preventing doping in sport and accepted the need for Australia to meet its international obligations. The committee notes the support expressed for the following measures in the Bill:

  • amendments in Schedule 2 relating to the Australian Sports Drug Medical Advisory Committee (ASDMAC); and
  • amendments in Schedule 3 relating to the introduction of a Violations List, the removal of the current Register of Findings and the provision for the Anti-Doping Rule Violation Panel (ADRVP) to make an 'assertion' of a violation of the anti-doping rules, rather than a finding.[2]

2.4        This chapter discusses the following key issues raised in relation to the Bill:

  • the new 'prohibited person' Anti-Doping Rule Violation (ADRV);
  • the proposed extended limitations period; and
  • the enhanced information management provisions.

2.5        The chapter also discusses a number of other issues raised during the inquiry that do not relate specifically to the measures in the Bill, but are relevant to the implementation of the revised Code. These include:

  • strengthened sanctions in the Code;
  • Australia's whereabouts testing policies;
  • athletes' access to legal representation;
  • the adequacy of ASADA's resources; and
  • the effectiveness of the Code.

New 'prohibited person' Anti-Doping Rule Violation

2.6        The provisions in the Bill that would give effect to the 'prohibited association' Anti-Doping Rule Violation (ADRV) were the subject of considerable discussion during the inquiry.

2.7         As noted in Chapter 1, the new ADRV will apply to an athlete who associates 'in a professional or sports-related capacity with an athlete support person who is serving a period of ineligibility or who has been convicted of a crime or sanctioned for professional misconduct for activity that otherwise would constitute a doping violation'.[3] The new ADRV reflects the international anti-doping community's decision to take action to protect sports and athletes from support persons who orchestrate systematic doping programs.[4]

2.8        While submitters acknowledged the need to curtail the influence of people with a proven history of doping and the capacity to facilitate systematic doping programs, concerns were expressed that the provisions in the Bill that would give effect to the 'prohibited association' ADRV are unduly broad and that key terms are poorly defined.[5] The Commercial Bar Association of Victoria (CommBar) submitted that the scope of the provisions in the revised Code exceed that stated aim and would encompass volunteers, parents, friends or untrained persons.[6]

2.9        The Law Institute of Victoria (LIV) submitted that there is a lack of clarity regarding the term 'professionally disciplined' and the extent to which such action is subject to the same onus of proof, burdens of evidence or appeal rights as an ADRV hearing.[7]

2.10      The Australian Athletes' Alliance (AAA) expressed concern that the terms 'professional' and 'sports-related capacity' are broad and 'encompass a range of activities that have only a tenuous link to sports generally and doping specifically'.[8] AAA also expressed concern that the onus is on the athlete to demonstrate that an association with a 'support person' does not fall within the scope of the provisions. AAA submitted that the onus in such circumstances should rest with ASADA or the relevant anti-doping body.[9]

2.11      In response to these concerns, a representative of the Department of Health (the Department) stated that there appears to be some misunderstanding regarding the scope of the provisions and provided the following explanation:

Firstly, the association which might be the subject of a prohibition must be in a professional sports related capacity. So there are limitations around that prohibition to start off with. It is not meant to interfere with the day-to-day interactions between individuals outside of those particular provisions. It is targeted at athlete support personnel, and that is quite a significant point because, when we start talking about [anti-doping rule] violations, they are [anti-doping rule] violations relevant to athlete support personnel. That is not all of the [anti-doping rule] violations in the new code; there are 10 of them.[10]

2.12      The representative further explained that:

The athlete must reasonably be able to avoid the association, and in submissions to the [anti-doping] organisation, which is probably ASADA in this case, they will be able to identify that they cannot reasonably avoid that association. The athlete support person must have committed an
[anti-doping rule] violation, or have been found in a criminal, professional or disciplinary hearing to have engaged in conduct that would have constituted an [anti-doping rule] violation. As to examples that we have heard—for example, recreational use of marijuana: under the ADRVs, that is not currently a rule violation for athlete support personnel...unless...you can demonstrate that that is in connection with the athlete. For example,
if somebody had cannabis at an event for provision to an athlete, you might be able to make that case.[11]

2.13      The Department explained that the mere fact that a finding has been made in relation to a person either through a criminal proceeding, or a professional disciplinary proceeding, is not sufficient of itself to trigger proceedings in relation to the new ADRV:

The finding against the person in one of those contexts has to be a finding that, if they had done that action within the jurisdiction of the WADA code, it would be a rule violation. That they may have been professionally sanctioned or criminally prosecuted is neither here nor there except insofar as it brings to light that the person did certain things. If those things were done in the jurisdiction of the WADA code and were then found to be doping violations, then we are talking, then we are caught.[12]

2.14      The committee notes that while the Code specifically recognises that the role of athlete support personnel may be fulfilled by a family member, the Code provides a number of safeguards. First, the athlete must be able to reasonably avoid the association and will have the opportunity to demonstrate that this is not the case. Second, the prohibition on association would apply only within a sports related or professional context. A representative of the Department clarified:

If they were registered as a coach and subject to the sports rules and the antidoping rules, then if they committed a violation, they would be sanctioned as per the normal arrangement and they would be banned from sport. It does not mean that they cannot associate. If they are outside the [anti-doping] organisation and they were found to be guilty of some sort of an offence which would have constituted an ADRV, they can be given disqualified status, but the actual point of operation is that the athlete cannot associate with that person for sports-related or professional reasons.[13]

2.15      A representative of the Department also advised that the Code provides examples and guidance on what is to be considered sports-related for professional reasons.[14]

2.16      In response to concerns that the amendments in Schedule 1 of the Bill require clarification in order to more accurately reflect the intent of the Code, the Department assured the committee that Australia is bound to replicate Article 2.10(2) of the Code within the ASADA regulations. Mr Andrew Godkin, First Assistant Secretary, Office of Sport, told the committee:

There is no confusion here. [Article 2.10.2 of the Code] is quite clear.
It says 'if the person has been convicted or found in a criminal, disciplinary or professional proceeding to have engaged in conduct which would have constituted a violation of antidoping rules if code compliant rules had been applicable to such person'. That is in section [2.10.2] of the code[.]
Under the code, we have no option but to completely replicate those within our own regulations. That is what the regulations will state.[15]

2.17      ASADA advised the committee that in order to find that a 'support person' is a prohibited person, ASADA would need to examine the person's conduct against each of the elements of the offence. Ms Bronwyn  Fagan, Director—Legal Services, told the committee:

We would need to be able to show that that person had satisfied all of the elements of the offence in order for them to have been found to commit the criminal offence or the professional misconduct that would have been an [anti-doping rule] violation.[16]

2.18      The committee notes that the new ADRV would be subject to the same appeal rights as other ADRVs through the Federal Court, the Administrative Appeals Tribunal (AAT) and the Court of Arbitration in Sport (CAS).[17]

2.19      AAA also expressed concern that Section 2.10 of the revised Code is incompatible with the right to freedom of association guaranteed in Article 22 of the International Covenant on Civil and Political Rights (ICCPR).[18]

2.20      In its examination of the Bill, the Parliamentary Joint Committee on Human Rights (PJCHR) noted that any risk of impermissible limitation of the right to freedom of association is proposed to be minimised through the inclusion of a provision in the ASADA Regulation to the effect that the new ADRV only applies insofar as it is not inconsistent with Article 22 of the ICCPR.

2.21      The PJCHR described this requirement as an important and necessary safeguard to ensure that the measure operates compatibly with the right to freedom of association. However, the PJCHR also stated:

Given its importance in ensuring that the legislation is compatible with Australia's human rights obligations, the committee considers that it would be preferable for the 'reading down' provision to be contained in the bill rather than be prescribed by [delegated] legislation.[19]

Extended limitations period

2.22      The AAA expressed concern regarding the measures proposed in Schedule 5 of the Bill to increase the period in which action in relation to a possible ADRV may commence from eight to 10 years, describing the changes as disproportionate.
AAA noted that limitation periods in civil actions are generally six years or less and that longer limitation periods exist only for aggravated crimes. AAA argued that insufficient justification is offered to support the extension of the limitation period.[20]

2.23      The committee notes that the PJCHR considered the extent to which this measure might engage and limit the right to a fair hearing, noting:

In human rights terms, limitations periods may be understood as preserving the 'equality of arms' of parties to litigation, insofar as they prevent a defendant being required to defend a charge or suit in circumstances where their ability to do so has been compromised by the passage of time.[21]

2.24      Other witnesses expressed support for the increase, noting advances in medical testing and analytical services.[22]

2.25      The committee notes ASADA's advice that the proposed increase in the limitations period is not intended to be either oppressive or to enable the passage of time to prejudice the position of the National Anti-Doping Organisation, the athlete or the athlete support person. Mr Ben McDevitt, Chief Executive Officer –ASADA, told the committee that the extension of the limitations period would enable science and technology to 'catch up' and, as a result, people who cheat will take a significant gamble:

The reality is that athletes who choose to dope can roll the dice on whether they will be able to remain undetected for a decade. We know what we are dealing with here are extremely sophisticated substances and extremely sophisticated screening methods and methods to avoid detection.
We currently keep samples for eight years. Keeping the samples for 10 years will allow a better chance for technology to catch up and for us to catch cheats.[23]

Enhanced information management provisions

2.26      As noted in Chapter 1, new section 68 authorises the disclosure of information by an entrusted person in the following circumstances:

  • for the purpose of the Act or a legislative instrument made under the Act;
  • as required or permitted under the Code; or
  • for the purposes of the performance of the functions or the exercise of the powers of the ASADA CEO, the ADRVP, the ASDMAC or the ASADA Advisory Group.[24]

2.27      The committee notes that while submitters generally expressed support for these provisions, some submitters expressed concern regarding the adequacy of safeguards in relation to the release of personal information.

2.28      The AAA stated that, despite certain protections in the legislation, the discretion afforded to the ASADA CEO is broad. The AAA expressed concern that that the provision as drafted 'does not provide an adequate check against the possibility that the integrity of the ASADA CEO is compromised in anyway.'[25]

2.29      CommBar expressed support for the disclosure of information provided for in Schedule 4, but stated:

CommBar believes that paragraph 68(3)(g) is inappropriate. It is the disclosure of information relating to athletes which affects the rights of athletes. It is CommBar's view that if such information is to be disclosed then express powers should be given in the ASADA Act and not in the Regulations.[26]

2.30      The committee notes that neither the PJCHR or the Senate Scrutiny of Bills Committee expressed concern regarding this provision in their consideration of the Bill.[27]

2.31      The committee also notes the significant role these provisions will play in supporting ASADA's ability to investigate possible violations. Mr McDevitt told the committee:

The second point that I think is really good for ASADA is the move towards intelligence and information sharing and an investigations focus. Let's face it: testing detects, on average, I think, between one and two per cent. We had the head of WADA recently say that he thought the rate of doping was as high as 25 per cent, which is quite extraordinary. So there is a significant gap there.

We also have eight violations which...simply cannot be proven [through presence in urine or blood of a banned substance]. So we have to have information sharing. We have to have intelligence. We have to have tools beyond simply collecting urine and blood samples if we are really serious about dealing with doping in this country. That is another area where I think we will have significant benefit.[28]

Other issues

2.32      Submitters took the opportunity presented by the inquiry to raise a range of issues related to the implementation of the Code that fall outside the specific measures contained in the Bill, including: strengthened sanctions; Australia's whereabouts testing policies; athlete's access to legal representation; ASADA's resources and the effectiveness of the Code.

Strengthened sanctions

2.33      The AAA expressed concern regarding the impact of strengthened sanctions in the revised Code. In particular, the AAA noted that revised Article 10.2 of the Code will raise the period of ineligibility from two to four years where:

  • the substance is a Prohibited Substance, unless the Athlete can establish that the violation was not intentional; or
  • the substance is a Specified Substance and the relevant Anti-Doping Organisation (ADO) can prove the violation was intentional.[29]

2.34      Where an athlete can prove that the use of a Prohibited Substance was not intentional, or the relevant ADO cannot prove the intention in relation to a Specified Substance, the period of ineligibility will be two years.[30]

2.35      The AAA argued that this increased sanction is disproportionately high and is incompatible with the principles of Australian employment law and basic fairness. Mr Ian Prendergast, Board Member, told the committee:

[C]urrently the minimum sanction for an athlete who takes a non-specified substance such as thymosin beta-4-which is the allegation in the Essendon case—through no fault of his or her own is one year, which is 50 per cent of the otherwise applicable sanction of two years. We believe that this is disproportionately high, especially for professional athletes, given the circumstances that they are employed under. The bill, by reflecting the changes to the WADA Code, effectively doubles this penalty. This applicable sanction will increase to four years, meaning that a professional athlete will lose two years of employment in his or her industry, even if he or she is at no fault for taking the non-specified substance.[31]

2.36      The committee notes that the increase in sanctions provided for in the Code will be implemented by individual National Sporting Organisations (NSOs) under their respective anti-doping policies in accordance with the Code.

Australia's whereabouts testing policies

2.37      Athletics Australia (AA) took the opportunity to argue for an amendment to the regulations with regard to Australia's implementation of whereabouts filing and testing. Under the National Anti-Doping (NAD) scheme, certain athletes are required to provide current and accurate information to meet whereabouts filing requirements which in turn enable athletes to be located for testing.

2.38      AA outlined for the committee some practical difficulties associated with the administration of these requirements and suggested that these difficulties could be addressed by adopting approaches to whereabouts testing employed in other countries. AA told the committee:

There is one area that we have pursued with ASADA in the past which we would like to see covered in the regulations attached to this legislation or the existing legislation, if that is more appropriate. It concerns additional notice given to athletes in the case of whereabouts testing. At the moment, each athlete on the testing list has to nominate one hour per day when they are available for testing.

In many other countries—in many comparable countries, in fact—there is a regulation which allows the tester to ring the athlete on the mobile phone during the last five minutes of that hour. That does not comprise the integrity of the process because obviously, if you are only giving an athlete five minutes to discover themselves, they do not have time to relocate from somewhere else or to catheterise themselves if they are devious or whatever. So we would like to see that policy.[32]

2.39      Mr McDevitt noted the extent to which WADA has responded to feedback from stakeholders in the revised Code citing the following example:

The window in which an athlete may accumulate three whereabouts failings, which is where there are failures to attend or there are missed tests, which will trigger an anti-doping rule violation, has been reduced from 18 months to 12 months.[33]

Athletes' access to legal representation

2.40      A number of submitters to the inquiry expressed concern regarding the ability of athletes to meet costs associated with responding to allegations of ADRVs under the Code.

2.41      The LIV argued that the majority of athletes have limited resources at their disposal to respond to an alleged violation.[34] LIV also noted that for a number of violations under the Code, athletes bear an evidentiary burden. LIV submitted that, with this in mind, consideration should be given to providing 'countervailing protections for athletes to defend themselves properly, and hence have guaranteed access to legal representation'.[35]

2.42      AA expressed concern that CAS has become the sole option for hearing and resolving ADRVs. AA argued that:

CAS has become extremely slow in administering, hearing and resolving the majority of cases and almost invariably senior counsel are involved in hearing the matters and representing parties.

2.43      AA urged further consideration of this issue, stating that:

AA is considering an alternative method to be incorporated within its new Anti-Doping Policy which will come into effect on 1 January 2015 but inevitably either on appeal or in some cases in the first instance there will still be a reliance on CAS or a similar public tribunal.[36]

2.44      Speaking as the President of CAS, Mr John Coates AC, President, Australian Olympic Committee (AOC), told the committee that the sport of athletics has adopted a different approach to other sports:

The others all hear at an international level and if you want to appeal from that you get to appeal to the CAS in the appeal division, which is free. You pay your $1000 filing fee and the court costs are free. So we are in discussion with athletics, the international body, that they are creating a problem for their international athletes who test positive. That is the problem. It is that sport.[37]

2.45      Mr Coates also advised that CAS provides legal aid to athletes, which includes the provision of pro bono legal advice.[38]

ASADA resources

2.46      The committee received evidence which suggested that ASADA may have insufficient resources to undertake its role and that this has had a negative impact on ASADA's performance.

2.47      AA emphasised the importance of ASADA having at its disposal the requisite resources to undertake its role efficiently and effectively. AA told the committee:

[T]here have been examples of long delays. We are sure that is not because ASADA was not interested; it was because they did not have the resourcing and manpower to deal with those cases. Our international federation deals with 211 countries, not all of whom have such a complex, fair and judicial legal system as we do. So a lot of other countries move more quickly and unilaterally than our system allows. Our international federation is anxious that things be dealt with more quickly, and so are we. We do not want those cases to be held up.

Similarly, we want to ensure that there are adequate funds to ensure that ASADA can continue its excellent work in educating. This has to be a constant thing because in our sport there is new talent coming in every day. Those kids need to be educated. We want to make sure that ASADA are continuing those programs and that there are some funds available to a sport like ours to enable us to continue to employ the part-time education officer that we do at the moment.[39]

2.48      The committee  notes AA's evidence regarding the importance of maintaining adequate funding for testing. Mr Brian Roe, Manager, Ethics and Integrity, said:

Whilst we agree absolutely with the move towards more investigative testing, we would not want a situation where the empirical testing both in and out of competition stops, because that is a powerful deterrent in its own right—not the testing but simply the threat of it.[40]

2.49      In response to questions about the adequacy of ASADA's resources,
Mr McDevitt acknowledged the need to find efficiencies:

We live under the same fiscal constraint as every other agency across the Commonwealth. You are right, it is a significant brief and body of work that we have responsibility for. We did have a surge in our resources to be able to cope with Cobia—the investigation into the AFL and the NRL. We are now going back to the sort of levels that we were at pre-Cobia. We are looking at the best way to get efficiencies. We are reducing our testing numbers and putting that resourcing into investigations and intelligence, and that sort of thing.[41]

2.50      The committee notes Mr McDevitt's evidence during the inquiry that the Bill, particularly as regards the extended limitations period and enhanced information management, would make ASADA's job 'quite a bit easier' and the level of comfort he felt as ASADA CEO moving into the new operating model under the Code with the agency's current level of resources.[42]

Effectiveness of the Code

2.51      The AAA argued that the Code and current ASADA processes do not provide an effective framework for preventing doping in sport and disputed claims of a global consensus for the revised Code, stating that the consensus does not include the world's player associations. The AAA told the committee:

The WADA code is ineffective in preventing doping. Our submission goes into this in some detail. WADA says publicly that doping is a double-digit proportion. There is no evidence for that statement. The test results, which have resulted in anti-doping violations, as set out in our submission, show the incredible gulf that exists between the problem as stated by WADA and the outcomes of its regime.[43]

2.52      The AAA submitted that the way to address this is to provide for a greater role for athletes to address anti-doping through collective bargaining, a model it argued has been used successfully by major professional sports in the United States. The AAA stated that such a collective bargaining model would be tailored to the needs of a particular sport and athletic career path. Penalties would be managed through individual case management. [44] Further:

Provision through collective bargaining would properly acknowledge the duties that leagues and clubs owe athletes as their employers, including in relation to the provision of a safe workplace. The obligations of employees to obey the reasonable directions of their employers would be acknowledged. There is a very different dynamic in professional team sports from that which exists in sports for individual athletes. We have seen this highlighted in the situation at Cronulla and Essendon, where there were concerns so great that the sports themselves imposed sanctions due to the failure of those employers to provide a safe workplace for their employees.[45]

2.53      However, the majority of submitters indicated broad support for the Code and acknowledged its importance in creating a uniform code for sporting organisations both domestically and internationally.

Implications of not passing the Bill

2.54      In its submission to the inquiry, the Department noted that, if the amendments in the Bill are not enacted, Australia's anti-doping arrangements will not reflect the Code and will be deemed by WADA as non-compliant. A consequence of this would be that Australia's anti-doping provisions would fall out of step with global anti-doping arrangements, potentially resulting in practical difficulties such as:

  • differing obligations for NSOs between their International Federation and Australian anti-doping legislation, including different anti-doping violations, sanctions and athlete reporting requirements;
  • the ASADA CEO would be required to consider and approve a sport's
    anti-doping policy, but would not have the jurisdiction to enforce aspects of the policy;
  • the ADRVP would be required to consider possible violations against a different framework to that operated by NSOs; and
  • Australia's competitiveness may be disadvantaged and its eligibility to host major international sporting events could be called into question.[46]

2.55      The AOC and the Australian Sports Commission (ASC) expressed concern that if the Bill were not to be passed sports and athletes would find themselves in a difficult position. The Chief Executive of the Australian Sports Commission, Mr Simon Hollingsworth, explained:

[I]f the bill were not to go through in its current form, national sporting organisations would be placed in a situation where they would be required to comply with their international federations and organisations like the International Olympic Committee and the Australian Olympic Committee, which would be different to the legislative framework that would exist in Australia.[47]

2.56      In its submission, the AOC noted the Australian Government's commitment to supporting sport in Australia, including staging world class major sporting events.
The AOC submitted:

In order to continue this longstanding commitment, any staging of future Olympic Games, World Championships and other major international events in Australia, such as the Asian Football Cup in January 2015 and the Commonwealth Games in 2018, must be Code compliant.[48]

Committee View

2.57      The committee notes that submissions to the inquiry stressed the importance of Australia taking a strong stance on drug use in sport for the benefit of all athletes and the importance of protecting Australia's integrity as a sporting nation.
The majority of submissions expressed support both for the revised Code and for the measures in the Bill to facilitate the implementation of the Code.

2.58      The committee has been mindful throughout this inquiry that the Bill before it contains only a subset of the changes required to give effect to the revised Code.
A number of the concerns raised in evidence to the committee relate to amendments that will need to be made to the ASADA regulations and to the anti-doping policies of NSOs.

2.59      The committee also notes that while the Code requires that certain Articles must be incorporated into each anti-doping organisation's rules without substantive change,[49] the Code affords ASADA a degree of flexibility in implementing the revised requirements. The Code is:

[I]ntended to be specific enough to achieve complete harmonization on issues where uniformity is required, yet general enough in other areas to permit flexibility on how agreed-upon anti-doping principles are implemented.[50]

2.60      The concerns raised in regard to the new 'prohibited association' ADRV appear to stem from certain misconceptions around the practical application of the ADRV. The committee considers that these misconceptions reflect in part a lack of detail in the Bill and the EM as to the practical application of the new measures.
The committee notes the Department's advice that this detail is to be provided in the amended regulations which are currently being drafted.[51] While those regulations will be subject to parliamentary scrutiny, it is regrettable that the committee has not been able to view the draft regulations at the same time as it is considering the Bill. However, the committee notes the Department's assurance that the regulations will replicate the ADRVs that are in the revised Code.[52]

2.61      The committee notes concerns raised during the inquiry regarding the effectiveness of current processes both in addressing the use of drugs in sport and in protecting the rights of individual athletes and support personnel.[53] While the committee considers that there may be merit in a more fundamental review of Australia's anti-doping framework at some point in the future, the committee considers that the inquiry into this Bill is not the appropriate avenue for such a review. The time constraints surrounding Australia's obligation to implement the revised Code by 1 January 2015, together with the significant consequences that would flow from a failure to comply with this obligation underscore this.

2.62      Finally, the committee notes that the fundamental purpose of the Code is to support clean athletes in their various disciplines by creating a fair playing field and providing certainty. The measures in this Bill are ultimately aimed at ensuring Australia's clean athletes can compete with confidence and certainty both in Australia and on the world stage.

Recommendation 1

2.63      The committee recommends that the Bill be passed.

 

Senator Zed Seselja
Chair

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