Introduction
1.1
The Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019 (bill) seeks to improve the ability of the Australian Sports Anti-Doping Authority (ASADA) to perform its functions.
1.2
The bill was introduced in the House of Representatives on 17 October 2019. A previous version of the bill was introduced into the Parliament in the 45th Parliament but was not passed prior to the 2019 Federal election.
Wood Review
1.3
The bill responds to recommendations of the 2017 Review of Australia's Sports Integrity Arrangements (Wood Review) that legislative amendments be made to allow ASADA's existing regulatory functions to be carried out more effectively. The Wood Review found that doping in sport is prevalent and widespread and increasingly complex and sophisticated. The Wood Review also found that the current suite of statutory protections and powers under the Australian Sports Anti-Doping Act 2006 (ASADA Act) are insufficient to facilitate ASADA's increasing emphasis on intelligence-based investigations. The Government accepted each of the Wood Review's recommendations in relation to enhancement of Australia's anti-doping capability.
Enhancing Capability Bill
1.4
As noted above, the bill seeks to improve the ability of ASADA to perform its functions within an increasingly complex doping environment.
1.5
The bill comprises five parts:
Part 1 seeks to streamline the Anti-Doping Rule Violation (ADRV) process and abolishes the ADVR Panel (ADRVP);
Part 2 extends protection from civil actions to National Sporting Organisations (NSOs) and personnel to encourage cooperation with ASADA;
Part 3 provides for the protection of information shared with key stakeholders from disclosure in open court or tribunal proceedings;
Part 4 makes a number of amendments in relation to disclosure notices, including:
altering the statutory threshold for issuing disclosure notices;
altering the times and places a person is entitled to inspect things produced under a disclosure notice;
increasing the penalty for non-compliance; and
removing the remaining elements of the privilege against self-incrimination when responding to a disclosure notice; and
Part 5 sets out contingent amendments that take account of various scenarios concerning the commencement of the Sport Integrity Australia Act 2019. Division 1 provides for a scenario in which ASADA has not been replaced by Sport Integrity Australia and the ADRVP has been abolished. The commencement of the provisions set out in Part 5 is contingent on the timing of the commencement of Schedule 1 to the Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Act 2019.
Legislative scrutiny
1.6
The Parliamentary Joint Committee on Human Rights (Human Rights committee) commented on an earlier version of the bill in its Report 2 of 2019 and sought further information from the Minister in relation to the following matters:
the compatibility of the measures to abolish the ADRVP with the right to a fair hearing;
the compatibility of amendments to the disclosure notice framework with the right to privacy; and
the compatibility of measures to extend immunity from civil liability to NSOs with the right to an effective remedy.
1.7
The Department of Health (DOH) and ASADA explained that the bill has been refined to take account of the comments of the Human Rights committee and to respond to subsequent consultation on the bill.
1.8
The explanatory memorandum to the bill states that the bill engages the right to an effective remedy, the right to presumption of innocence and the right to privacy and reputation.
1.9
The explanatory memorandum states that the bill is compatible with human rights as the bill promotes rights, and to the extent that the bill limits rights, these limitations are reasonable, necessary and proportionate to achieving a legitimate objective.
Scrutiny of Bills
1.10
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills committee) sought further information from the Minister regarding the implications for the right to privacy of lowering the current 'reasonable belief' standard for the giving of disclosure notices and measures to address unauthorised use or disclosure of personal information.
1.11
The Scrutiny of Bills committee considered the Minister's response in relation to each matter in Scrutiny Digest 10 of 2019. This matter is considered further in below.
Conduct of the inquiry
1.12
The Senate referred the provisions of the bill to the Senate Community Affairs Legislation Committee (committee) for inquiry and report by 3 February 2020. On 5 February 2020, the reporting date was extended to 24 February 2020.
Evidence
1.13
Details of the inquiry, including a link to the bill and associated documents, were placed on the committee's website. The committee wrote to relevant organisations inviting submissions to the inquiry by 17 January 2020.
1.14
The committee received six submissions, which were published to the committee's website. The committee held a public hearing in Canberra on 14 February 2020. Lists of submitters and witnesses are included at Appendices 1 and 2.
1.15
The committee thanks everyone who contributed to the inquiry.
Note on references
1.16
References to the committee Hansard are to the proof transcript. Page numbers may vary between the proof and official Hansard transcript.
Consultation and refinement of the bill
1.17
As noted above, DOH and ASADA outlined the detailed consultation undertaken in relation to the measures in the bill. This included multiple stages of consultation, both through the conduct of the Wood Review and in the development of the Government Response to the review, and in the development of a previous version of the bill which was introduced in the 45th Parliament.
1.18
The committee heard that further consultation was undertaken and the bill was refined and the explanatory memorandum updated prior to the bill's introduction in the 46th Parliament. DOH advised:
An online platform was used to invite general feedback on the Bill and regarding the issues raised by the [Senate Standing Committee for the Scrutiny of Bills] and the [Parliamentary Joint Committee on Human Rights]. Additionally, approximately 65 members of five key Advisory and working Groups established by the Sports Integrity Taskforce (Taskforce) on 7 June 2019 were included in the consultation opportunity. Members of the Advisory Groups include (but are not limited to) representatives from national sporting organisations, law enforcement, state and territory governments, the wagering industry, and peak bodies such as the Australian Olympic Committee and Australian Athlete's Alliance (AAA).
1.19
DOH and ASADA explained that changes made to the bill following this consultation include:
an amendment to allow ASADA's secrecy provisions to be included within Schedule 3 of the Freedom of Information Act 1982 (FOI Act); and
minor and consequential amendments to harmonise operation with the Australian Sports Anti-Doping Authority (Sport Integrity Australia) Bill 2019.
1.20
In addition, key information provided by the Minister in response to comments by the Scrutiny of Bills committee has been included in the explanatory memorandum to the bill, following a request by the committee.
Discussion of key matters raised in submissions
1.21
DOH and ASADA stated that the amendments in the bill 'will ensure Australia's anti-doping framework is robust and responsive and will improve the ability of ASADA to perform its functions within an increasingly complex and sophisticated doping environment'.
Streamlining the ADRV process
1.22
The bill seeks to streamline the administration of the ADRV process by removing an athlete's and athlete support person's option for appeal to the Administrative Appeals Tribunal prior to a matter proceeding to a formal hearing and removing the ADRVP.
1.23
The committee heard that the current ADRV process has been found to be convoluted and time intensive. The Wood Review recommended the streamlining of the ADRV process and reconsideration of the role of the ADRVP, including its possible removal from the ADRV process.
1.24
The proposed amendments are intended to expedite a participant's opportunity to have a fair hearing. The ASADA Chief Executive Officer (CEO) will have responsibility for managing a simplified process up to the point where the asserting of an anti-doping rule has been made.
1.25
DOH and ASADA submitted that the proposed amendments will simplify the ADRV process by reducing duplications and removing unnecessary delays to the pre-hearing process. The amendments will ensure Australian athletes are subject to the same set of anti-doping procedures as the rest of the world.
1.26
Submitters to the inquiry expressed support for the amendments.
Amendments to the disclosure notice regime
1.27
The ASADA Act provides that the CEO may issue a written disclosure notice requiring a person to attend an interview to answer questions or to provide documents or things.
1.28
The Wood Review noted the increasing importance of intelligence-led investigations in the detection of doping incidents and programs and recommended elements of the disclosure notice regime be enhanced and strengthened.
1.29
The bill responds to these findings by proposing the following changes to the disclosure notice regime:
replacing the current requirement that the CEO 'reasonably believes' that a recipient of a disclosure notice has relevant information, documents or things with the requirement that the CEO 'reasonably suspects' this to be the case;
preventing the recipient of a disclosure notice claiming the privilege against self-incrimination or the privilege against self-exposure to a penalty in order to not comply with a disclosure notice; and
increasing the penalty for non-compliance with a disclosure notice from 30 to 60 penalty units.
Threshold for issue a disclosure notice
1.30
While some submitters expressed support for the proposed amendment to the lower the threshold for the giving of disclosure notices, the Australian Athletes' Alliance (AAA) and Exercise and Sports Science Australia (ESSA) submitted that the current standard of 'reasonable belief' should not be lowered to 'reasonable suspicion'.
1.31
Both the AAA and ESSA expressed concern that with the abolition of the ADRVP, there would be no check on the exercise of the CEO's power. While both the AAA and ESSA expressed support for the abolition of the ADRVP, the AAA submitted that the breadth of information that can be requested in a disclosure notice should require the CEO to believe that the disclosure notice will yield relevant information. ESSA questioned whether there was evidence that ASADA's investigative functions have been hindered by the application of the standard of 'reasonable belief' and questioned whether the proposed amendment is necessary.
1.32
In evidence to the committee, the DOH addressed evidence to the committee that characterised 'reasonable suspicion' as being akin to a hunch:
Acting on a hunch is not reasonable. As set out in the explanatory memorandum to the bill, reasonable suspicion is a threshold used for issuing search warrants in many jurisdictions in Australia. Search warrants authorise, amongst other things, the forced entry into premises and seizure of items.
1.33
DOH went on to explain that while reasonable belief is appropriate when ASADA is able to rely on adverse analytical findings following testing of urine and blood samples, this alone is increasingly ineffective in confronting doping. Disclosure notices are a critical tool in gathering evidence and are vital in assisting ASADA to address the threat to sport integrity posed by third party enablers:
Third party enablers are rarely subject to the rules of sport. ASADA can issue them with disclosure notices where appropriate, but they frequently claim the right not to self-incriminate to avoid answering questions.
1.34
In a response to the Scrutiny of Bills committee's questions on this matter, the Minister clarified that the amendments would address a gap in the tools available to ASADA, noting that it may be difficult to establish a 'belief', but that establishing a 'reasonable suspicion' would allow for further investigation. The Minister also explained:
While the difference between the thresholds of suspicion and belief need not be enormous, the fact remains an inability to act on a suspicion may mean the suspicion is never dispelled. This is not in the interest of sport integrity.
1.35
ASADA noted that in four significant cases in recent years, the inability to reach the reasonable belief threshold had delayed or otherwise prevented the progression of those matters, noting that in each of these cases the subjects of the investigations were facilitators, suppliers or third party enablers of doping. ASADA estimates:
that there are at least 10 instances of organisations or businesses being involved in the supply of performance and image enhancing drugs that ASADA has been unable to fully investigate using disclosure notices due to the current reasonable belief threshold.
Privilege against self-incrimination
1.36
The explanatory memorandum describes the limitations on ASADA's coercive powers under the ASADA Act once a disclosure notice has been issued. A recipient of a disclosure notice is currently excused from answering questions, or providing information, on the ground that the answer might tend to incriminate them or expose them to a penalty, but is not excused from providing a document or thing on the same ground.
1.37
Both the AAA and ESSA noted that the privilege against self-incrimination is a fundamental human right and submitted that they do not support the proposed amendment. The AAA questioned the basis for abrogating the right in this instance, stating that it is in essence for the convenience of ASADA.
1.38
AAA told the committee:
What we're talking about is a specific group of people losing a basic human right which has been established through the High Court and numerous international conventions, policies et cetera. We're removing that for a specific class of people. When we look to remove that, it should be for an absolutely justified, strong reason. We don't see this as that reason. We actually see that the athletes should be front and centre of the protection, but also protecting those athletes. Removing a human right, to us, doesn't seem like the appropriate measure to take.
1.39
ESSA told the committee that it does not consider doping offences to be more serious than serious criminal matters which are regularly investigated without undermining the privilege against self-incrimination.
1.40
DOH and ASADA explained that the proposed amendment is intended to harmonise ASADA's current powers across the provision of information by removing the privilege with respect to answering a question or providing information. The amendment will also strengthen ASADA's ability to pursue third party enablers who currently sit outside contractual relationships that apply to members of NSOs. The explanatory memorandum notes that protections on the use of the information remain as the information may not be used against the person for any proceeding other than in connection with the ASADA Act, or an offence against 137.1 or 137.2 of the Criminal Code Act 1995.
1.41
The amendment seeks to implement the Wood Review's finding that for ASADA to effectively execute its intelligence and investigative functions, the right to claim privilege against self-incrimination in certain circumstances, as currently prescribed in the ASADA Act, should be excluded.
Safeguards against unauthorised use of information
1.42
As noted above, both the Human Rights Committee and the Scrutiny of Bills Committee commented on the privacy implications of the amendments to the disclosure notice provisions. DOH and ASADA submitted that these concerns have been addressed through enhancements to the explanatory memorandum and in the Minister's response to the Scrutiny Committee.
1.43
In evidence to the committee, ASADA clarified that the information it gathers can only be used in anti-doping hearings under the legislation or for two discrete criminal code violations relating to the provision of false information or false documents.
1.44
In their submission, DOH and ASADA described the safeguards for the protection of information existing in the ASADA Act and in international anti-doping codes, conventions and standards with which Australia is required to comply:
Section 67 of the ASADA Act creates an offence punishable by two years' imprisonment for an 'entrusted person' to disclose 'protected information' except in the circumstances permitted by Part 8 of the ASADA Act.
The mandatory World Anti-Doping Code International Standard for the Protection of Privacy and Personal information imposes strict requirements on anti-doping organisations to ensure the privacy of persons subject to doping control.
The proposed amendment to the FOI Act will render 'protected information' exempt from release pursuant to FOI, thus providing strong statutory protections from release, assisting in the balancing of privacy concerns.
Inspection of a document
1.45
The ASADA Act currently requires the CEO to allow a person, who would otherwise be entitled to inspect or view a document produced pursuant to a disclosure notice, to do so at the times that the person would ordinarily be able to do so. Item 45 of the bill amends this provision to allow that person to inspect or view the document or item only at times and places as the CEO thinks appropriate.
1.46
The AAA submitted that it 'opposes any change that could impact on an athlete's fundamental right to review the evidence against them'. The AAA considers that an athlete's schedule of training, competitions and travel should determine when they can review documents.
1.47
Mr Andrew Godkin, representing DOH, explained that the amendment would address a lack of flexibility in the current provisions:
The athlete may choose, for example, a time when the document in question is not physically available for such viewing.
1.48
The explanatory memorandum states that the proposed amendment will allow for the CEO to arrange for the viewing or inspection to occur at a time when the document or thing is available for that purpose.
Immunity from civil liability for NSOs
1.49
The ASADA Act includes regulatory protections for the ASADA CEO, staff and engaged personnel to protect them against civil action when they have acted in good faith. The Wood Review recommended extending statutory protection against civil actions to cover NSOs and their staff in their exercise of ADRV functions.
1.50
Amendments in Part 2 of the bill will extend this protection from civil liability to NSOs and their employees or contractors. The explanatory memorandum states that this additional protection will better allow NSOs to act in cooperation with ASADA on anti-doping matters by ensuring that NSOs and their personnel are not disadvantaged through exposure to litigation.
1.51
While a number of submitters supported these amendments, AAA expressed concern that the proposed amendments might be broader than intended and would 'deny an athlete any recourse if they suffer a loss as a result of their NSO's breach of its duty of care'.
1.52
DOH and ASADA submitted that the immunity proposed for NSOs will be limited to actions or proceedings for damages in relation to an act done – or omitted to be done – in good faith in implementing or enforcing the NSO's anti-doping policy:
The types of proceedings not precluded by the immunity would include proceedings for damages where the NSO (or its personnel) had knowingly acted beyond power (indicating the absence of good faith), administrative proceedings (for example, the exercise of functions under the Privacy Act 1988) and criminal proceedings.
1.53
Mr Godkin explained that the provision to extend the immunity from civil liability would not diminish an athlete's right to take action in the case of negligence:
Extending these protections is important, because ASADA is not the body that takes actions on antidoping rule violations. However, the sport is required to follow the directions of ASADA imposing mandatory provisional suspensions on athletes and support staff. These protections will simplify the process for sports which are following the ASADA CEO's directions.
Educating and supporting athletes
1.54
A key theme in evidence to the committee was the need for effective education for athletes about their rights and responsibilities in relation to anti-doping.
1.55
ESSA told the committee that there was more work to be done to highlight athletes' responsibilities and noted that many of its members may not understand ASADA and the World Anti-Doping Authority requirements and may not be aware of their rights or when a right is being waived.
1.56
The AAA called for an increased focus on support and education for athletes:
We require better education - education that isn't top-down, that is peer to peer and that works with the athletes on supporting them and educating them on what is a very complex system. Second is a legal aid service within an integrity-in-sport framework. We believe that the effective support, advice and representation of athletes is essential. Not all athletes have player associations. No matter the level of sophistication of their education, the vast majority of athletes who are provided with a notice by ASADA will have no experience with the process and the procedure that awaits them.
1.57
ASADA agreed with the AAA's emphasis on peer-to-peer education.
1.58
Mr Darren Mullaly, described how ASADA was using peer-to-peer education and technology to better reach athletes across all levels of sport:
We've overhauled how ASADA does face-to-face education. So we've gone and hired clean sport presenters or facilitators to deliver those face-to-face sessions. We've got 16 casual employees who do that. They're all either current or former elite athletes. So we are sending in athletes who have peed in a cup and are aware of the system to educate other athletes in our face-to-face sessions. We think that's critical. People in the department or other people in ASADA may have a really good knowledge of antidoping rules, but we don't have the same impact on athletes as sending another athlete who has actually gone through the process and done it. That's a significant change we have made over the last 12 to 18 months.
We also have developed products such as the Clean Sport app, trying to engage with innovation and technology to better reach athletes across all levels where they can not only check their medications but also check batch tested supplements to try to reduce the risk of them inadvertently falling foul of the antidoping rules.
1.59
ASADA also provided detail of its current expenditure on education, noting that an increase in funding across the organisation had allowed ASADA to double the size of its education team and had enabled it to provide more services and better education for both athletes and support personnel and others who have to deal with the anti-doping system.
Conclusion
1.60
The Australian Sport Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019 responds to key recommendations of the Wood Review, which recognised the increasingly serious and complex nature of threats to the integrity of Australian sport, including from doping.
1.61
The Wood Review found that Australia's current anti-doping legislative framework requires reform if it is to address these threats effectively into the future. It highlighted that increasingly sophisticated doping techniques require rigorous and effective anti-doping tools, including effective intelligence and investigative capabilities.
1.62
The committee recognises that the matters addressed in the bill have been the subject of extensive review and consultation, both through the Wood Review, legislative scrutiny processes and subsequently following the introduction of a similar form of the bill during the previous parliament. The committee notes the refinements to the bill in response to this scrutiny and consultation.
1.63
The bill seeks to enhance ASADA's intelligence gathering capabilities by addressing inefficiencies, inconsistencies and gaps identified by the Wood Review. At the same time, the bill is intended to provide ASADA with the flexibility it needs to apply a more risk based and nuanced approach to its work. Oversight is maintained through internal ASADA procedures as well as through judicial review, while appropriate safeguards remain in place for the protection of information.
1.64
The committee also notes the efforts being made to improve the level of support and education provided to athletes, and those who support them, about their rights and responsibilities. The committee notes the willingness within the sports community to work with ASADA to ensure the effectiveness of this education.
1.65
Finally, the committee notes that this bill is part of a broader commitment to ensure Australia's anti-doping legislative framework is robust, efficient and responsive to the contemporary threats to Australia's sporting integrity. While the measures in this bill are directed to the functions of ASADA, the committee notes that the intention is that these functions will be performed by a new single national sports integrity body, as provided for in the Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019.
1.66
The committee recommends that the Senate pass the bill.
Chair