Removal of the Anti-Doping Rule Violation Panel (ADRVP) and Administrative Appeals Tribunal (AAT) appeal
As set out in the Bills Digest for the bill prepared by the Parliamentary Library, the Australian Olympic Committee (AOC) has previously criticised an approach in which the Australian Sports Anti-Doping Authority (ASADA) is responsible for both investigation and decision making, a situation the ADRVP was intended to address:
The AOC considered there was insufficient provision for the separation of ASADA‘s policy making, administrative, investigative and prosecution functions. It particularly noted that there needed to be proper protection of the rights and roles of Australian sports organisations, athletes and athlete support personnel. The investigative regime to be put in place did not require ASADA to put its case to an independent hearing before declaring an athlete guilty, the AOC noted. And once an investigation was complete, ASADA alone had the power to determine whether an athlete should be sanctioned.
In response to a number of controversial doping investigations, the governance arrangements were changed in 2009 to create a marked distinction between the administrative and investigative functions and the adjudication functions of ASADA… In some respects, the Wood Review proposes undoing those 2009 changes … The duplicated process was designed to provide an independent check on the power of the ASADA CEO to issue infraction notices. Stakeholders agreed, however, that this had not been the practical outcome of the system. Instead it had resulted in a cumbersome, time wasting process that was of little assistance to the sports tribunal.
In particular, as noted by the Bills Digest, the ADRVP has not yet overruled the ASADA Chief Executive Officer (CEO).
The Australian Athletes’ Alliance (AAA) supports the removal of the ADRVP, and Exercise & Sport Science Australia (ESSA) also supports the removal of the ADRVP.
Despite these arguments for the removal of the ADRVP, it appears important that athletes still have some right to appeal to the AAT, given previous concerns raised by the AOC about ASADA’s dual roles.
Recommendation
That athletes retain appropriate rights to appeal to the Administrative Appeals Tribunal.
Lowering the threshold for disclosure notices
As summarised in the Bills Digest, the ASADA CEO may issue a disclosure notice requiring a person to attend an interview to answer questions, give information or provide documents or things. Currently, three members of the ADRVP must agree that the ASADA CEO reasonably believes that the person has information relevant to the administration of the national anti-doping (NAD) scheme.
The Bills Digest notes that:
The Wood Review found that the present threshold of reasonably believes resulted in disclosure notices generally only being granted by the ADRVP in circumstances where ASADA already had evidence to suggest that an ADRV has taken place—for instance, a returned positive sample or adverse analytical finding (AAF). The Review therefore recommended that the threshold be changed to reasonably suspects.
The Bills Digest notes a number of relevant issues in relation to this change, including that:
the Attorney-General’s Department’s guidelines suggest that document disclosure notices should require a reasonable threshold; and
there are limitations with the comparison between ASADA’s disclosure notices and search warrants, as disclosure notices can compel a person to attend for questioning, which usually requires a higher threshold in other contexts.
The Bills Digest concludes:
In light of the broad responsibilities of the ASADA CEO and the width of the phrase ‘relevant to the administration of the NAD scheme’, there is some doubt whether a change to the threshold for issue of a disclosure notice is necessary. It may be sufficient for the ASADA CEO to fully utilise the current legislation.
The AAA noted similar concerns at the broadening of what appears to be an already broad power:
The breadth of the information that can be requested in a disclosure notice is broad. Given that compliance may place a significant burden [on] the person receiving a disclosure notice, it is reasonable to require that the CEO actually believe that the disclosure notice will yield relevant information. A suspicion, which is tantamount to a hunch, even if reasonable, is not enough to require an athlete to provide their personal data, phone, computer, bank accounts, and other private information.
Similarly, ESSA opposes the lowering of the threshold.
The Greens believe that the current threshold is appropriate, and the change in this bill is unwarranted.
Recommendation
That the current threshold for disclosure notices be retained.
Removing self-incrimination as a defence to answering questions
As noted in the Bills Digest, both the common law and the International Covenant on Civil and Political Rights ‘recognise a right not to be forced to incriminate oneself’.
In 2013, the Australian Sports Anti-Doping Authority Amendment Bill 2013 was successfully amended by Australian Greens Senator Richard di Natale, in order to ensure protection of the right to not self-incriminate in the Australian Sports Anti-Doping Authority Act 2006.
Since that point in time, it appears that contracts have been used as a method to force athletes to abrogate that right.
Writing in the Australian and New Zealand Sports Law Journal, Anthony Crocker concluded:
ASADA is the national body charged with the task of investigating anti-doping matters so as to maintain the integrity of sport. It sought a range of additional powers from the Commonwealth Parliament. Not all of those powers were granted. What ASADA could not obtain through the ‘front door’, it has given to itself through the ‘back door’, by drafting a template that is not consistent with the ASADA Act. This state of affairs raises important issues of policy. ASADA is the body charged with the task of helping to maintain integrity in sport. It should not be preparing agreements whereby athletes contractually waive significant legal rights in circumstances where the Parliament has recently determined those rights should remain.
This raises fundamental questions about how the Coalition has allowed this to occur, and ASADA’s judgement in adopting this approach. While the Explanatory Memorandum notes that changes in the bill to abrogate the right to not self-incriminate are in line with current contracts, the Bills Digest notes:
The point is somewhat disingenuous in a context where ASADA has been encouraging and approving those very ‘pre-existing contractual powers’, apparently since at least January 2015, to empower its own investigations.
The Bills Digest also notes that although a use immunity is provided, it is not sufficient:
The ‘use immunity’ provided here, however, it is not sufficiently wide to protect from the absolute liability ADRV findings which could result from the compelled evidence. Those absolute liability ADRV are then followed by sanctions including mandatory suspensions and automatic loss of results and prizes. The losses may be substantial and affect other team members. All this occurs in a context where the investigator is also the prosecutor and facilitator of the sanction, and all without access to a court.
In an attachment to a submission to the inquiry, Nikki Dryden, founder of Athlete Activist, noted that:
In compliance with international law, the WADA World Anti-Doping Code 2015 (WADA Code) at no point forces athletes to cooperate, nor does it force athletes to give up their right to silence or the privilege against self-incrimination.
Both the AAA and ESSA oppose this change.
The Greens support these organisations in their opposition to this change given its impact on fundamental human rights.
Recommendation
That the proposed changes to athletes’ rights be rejected.
Protections for National Sporting Organisations
As summarised in the Bills Digest:
The ASADA Act protects the ASADA CEO and staff against civil action relating to the performance of the powers and functions of the CEO provided they have acted in good faith. However, the NAD scheme requires NSOs to also perform some functions of the ASADA CEO. The Wood Review recommended that the government extend statutory protection against civil actions to cover NSO’s in their exercise of ADRV functions.
The Bills Digest notes two grounds on which the proposed protection appears to go beyond the scope recommended by the Wood Review. The first is that it appears to cover all actions taken in line with the NSO’s anti-doping policy, rather than only covering the actions taken in relation to the NAD scheme. The second is that the protection does not include a requirement for reasonable care, and would appear to cover negligence and incompetence from civil liability.
The Australian Athletes Alliance recommended against the extension of this protection.
Recommendation
That the proposed changes to extend protection from civil liability not be accepted in their current form.
Better information sharing with NSOs
As summarised in the Bills Digest, the bill will also ‘facilitate better information sharing between the Australian Sports Anti-Doping Authority (ASADA) and NSOs through enhanced statutory protections for information provided to an NSO by ASADA’.
Document inspection
The AAA also noted concerns about changes that would make it harder for athletes to access information relevant to them:
We oppose any change that could impact on an athlete’s fundamental right to review the evidence against them. Athletes’ schedules vary substantially according to training, fixturing competitions and travel; it is their schedules that should determine when they review documents, rather than the convenience of the CEO.
The Greens share this belief that athletes' access to documents that contain evidence against them is of fundamental importance.
Recommendation
The current system be retained.
Education and athlete support
The AAA also noted a range of opportunities to improve the current system, to support athletes in dealing with a complex procedural process, and ensure better outcomes for the sport.
Recommendation
That ASADA provide appropriate support to athletes, to provide additional education, and ensure they have access to independent advice during a complex process.
Recommendation
That the bill not be passed in its current form.