Australian Sports Anti-Doping Authority Bill 2005 and a related Bill


Australian Sports Anti-Doping Authority Bill 2005 and a related Bill

Referral and conduct of the inquiry

1.1       On 8 December 2005, on the recommendation of the Selection of Bills Committee, the Senate referred the provisions of the Australian Sports Anti-Doping Authority Bill 2005 and the Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) Bill 2005 to the Committee for inquiry and report by 7 February 2006.

1.2       The Committee contacted state and territory governments, the Australian Sports Drug Agency and the Australian Sports Commission as well as a number of national sporting bodies to invite submissions. The inquiry was advertised in a national newspaper on 14 December 2005. In addition, over 100 letters of invitation were sent to possible witnesses.

1.3       The Committee received nine submissions, which are listed in Appendix 1.

1.4       The Committee thanks all those who assisted in its inquiry.

The Bills

1.5       The Bills were introduced into the House of Representatives on 7 December 2005. In his Second Reading speech, the Minister for Employment and Workplace Relations and Minister Assisting the Prime Minister for the Public Service, the Hon Mr Kevin Andrews MP, noted that:

This bill establishes the Australian Sports Anti-Doping Authority as the focal point for Australia’s continuing campaign against doping in sport. Australia is acknowledged internationally as being at the forefront of the fight against doping in sport, balancing a 'tough on drugs' approach with ensuring that all athletes are treated fairly and that athletes' rights are protected.[1]

1.6       The Minister stated that the Bills deliver on the Government's commitment to strengthen its Tough on Drugs in Sport strategy:

...through enhancing the investigation of alleged doping violations and establishing clear and consistent arrangements for the hearing of doping in sport matters.

They set out a new, more robust regime for responding to alleged anti-doping rule violations in Australia through a new, dedicated agency.[2]

Australian Sports Anti-Doping Authority Bill 2005

1.7       The new Australian Sports Anti-Doping Authority (ASADA) will assume the existing drug testing, education and advocacy functions of the Australian Sports Drug Agency (ASDA) and will also carry out additional functions in relation to:

  • the investigation of potential additional sports doping violations;
  • the presentation, at hearings conducted by the international Court of Arbitration for Sport and other sports tribunals, of cases against an athlete or support person alleged to have committed an anti-doping rule violation;
  • determining mandatory anti-doping rules to be included in ASC funding agreements with sports; and
  • advising the ASC of the performance of sports in observing these requirements.[3]

The ASADA will also incorporate the current Australian Sports Drug Medical Advisory Committee.

1.8       The proposed Bill would empower ASADA to investigate all allegations of Anti-Doping Rule Violations (ADRV) outlined in the World Anti-Doping Code and present cases against alleged offenders at the international Court of Arbitration for Sport (CAS) and other sports tribunals. The Bill provides for the following functions:

  • undertake anti-doping testing, investigations and presentations at sport tribunal hearings functions;
  • determine mandatory anti-doping provisions to be included in Australian government funding agreements with sports;
  • advise the Australian Sports Commission, as the government’s principal sports funding body, of the performance of sports in observing these requirements;
  • provide education for Australian athletes and support personnel in relation to anti-doping matters;
  • support and encourage research into anti-doping matters;
  • encourage anti-doping initiatives by the states and territories and cooperate in carrying out these initiatives;
  • provide anti-doping and other services under contract;
  • make resources available to the Australian Sports Drug Medical Advisory Committee for the performance of its functions; and
  • provide advice to the responsible minister on matters relating to these functions.[4]

1.9       The ASADA Bill sets out the broad requirements under which the Authority will exercise its functions. Detailed protocols and procedures for the exercise of ASADA’s functions will be contained in a National Anti-Doping Scheme (NAD), which will be a legislative instrument developed alongside the ASADA Bill, to be tabled in parliament.

1.10      The National Anti-Doping Scheme will reflect the provisions of the two major international instruments on anti-doping to which Australia is a party. It will be consistent with the mandatory provisions of the World Anti-Doping Code and will implement the UNESCO convention, once ratified.

1.11      The scheme will contain:

  • anti-doping rules applicable to athletes and support personnel, including details of anti-doping rule violations and the consequences of infractions;
  • protocols for ASADA drug testing procedures;
  • protocols and procedures governing ASADA investigations;
  • protocols for ASADA to establish a register of its findings, and to advise sporting organisations and athletes of its findings; and
  • protocols for ASADA’s presentation of doping cases at sports tribunal hearings.

1.12      The scheme will set out the obligations for Australian sporting organisations in the following areas:

  • promoting athlete compliance with the scheme;
  • referring violations of the scheme to ASADA;
  • assisting ASADA in the course of its investigations;
  • taking action in response to ASADA finding a violation has occurred; and
  • ASADA’s role in hearings and appeals for doping cases.

1.13      The scheme will also authorise ASADA to:

  • monitor the compliance of sports and sports administration bodies (including the ASC) with these obligations;
  • notify the Australian Sports Commission in regard to such compliance; and
  • publish reports about the extent of compliance.[5]

Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) Bill 2005

1.14      The Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) Bill 2005 contains transitional provisions and consequential amendments related to the establishment of ASADA. Schedule 2 to the Bill makes a number of consequential amendments to other Commonwealth Acts; Schedule 2 contains transitional provisions dealing with such matters as:

  • the vesting of assets and liability of the ASDA in the Commonwealth;
  • the continuing operation of ASDA instruments after the commencement of the Bill;
  • transferring of money appropriated to ASDA to ASADA;
  • termination of ASDA members;
  • continued applications of the ASDA Act;
  • the disclosure of certain protected information by the ASC to ASADA; and
  • annual reports.[6]

Support for the Bills

1.15      Support for the establishment of a national anti-doping organisation is strong. The Australian Sports Commission (ASC) noted that:

The ASC strongly supported the establishment of ASADA as the peak anti-doping organisation in Australian sport. ASADA will incorporate the current anti-doping functions of the ASC and the Australian Sports Drug Agency, together with new functions including investigations and the presentation of cases to hearing.[7]

1.16      Similarly, Swimming Australia Limited (SAL) submitted:

SAL believes the new legislation is a logical and efficient change that will clearly establish ASADA as the primary authority for Anti-Doping matters in Australia that should allow for more efficient use of resources in this vital area.[8]

1.17      The Australian Football League Players Association (AFLPA) submitted:

The AFLPA supports the Federal Government taking a rigorous approach to combating the use of performance enhancing drugs in sport. To this end, we acknowledge that the centralisation of responsibility for various matters associated with anti-doping measures into a single authority such as ASADA makes sense.[9]

1.18      Mr Simon Rofe from the Australian Olympic Committee (AOC) told the Committee:

The AOC would like to place on the record its support for ASADA as the national antidoping agency for Australia. We believe it is definitely a step in the right direction and an improvement in Australia’s antidoping stance, a stance that we believe we lead the world.[10]

1.19      In its submission the AOC argued that the establishment of ASADA would clarify the current situation in which the roles and responsibilities of the department and ASDA are improperly divided:

At the outset, I reiterate the support of the Australian Olympic Committee for the creation and operation of the Australian Sports Anti-Doping Agency ('ASADA') as the sole national anti-doping organisation for Australia in lieu of the current undesirable division of roles and responsibilities between the Department of Communication, Information Technology and the Arts, the Australian Sports Commission and the Australian Sports Drug Agency ('ASDA').[11]

1.20      SAL similarly argued:

By establishing ASADA as the authority in the anti-doping area and giving them responsibility in this area it means NSOs will only have to deal with one and not two organisations in this area which should reduce and streamline the reporting and compliance process.[12]

1.21      While submitters saw the establishment of ASADA as a step in the right direction a range of issues were raised.[13]

Concerns about the Bills

1.22      Concerns about the Bills covered a range of issues. At a broad level the Australian Football League Players' Association (AFLPA) argued that:

the functions and powers of any properly empowered authority must recognise and respect:

  • the legitimate legal and moral rights of Australian athletes; and
  • the rights and abilities of sporting bodies (in conjunction with their own stakeholders) to determine and implement their own anti-doping arrangements for the detection, investigation and determination of anti-doping rule violations.[14]

1.23      Specifically, the AOC argued that the ASADA Bill:

  • does not separate the ASADA functions and powers relating to policy making, administration, investigation and prosecution;
  • does not outline the reasons for or status of the register of findings;
  • does not provide ASADA with the necessary and appropriate powers of investigation; and
  • has adopted definitions at variance with those in the World Anti-Doping Code and the UNESCO Anti-Doping Convention.[15]

1.24      These concerns were raised by other stakeholders. During the public hearing, held on 31 January 2006, and in the submission from the Department of Communications, Information Technology and the Arts (DCITA) these concerns were discussed.

Powers and functions

1.25      The Australian Olympic Committee noted that in announcing the creation of ASADA in June 2005, the Minister stated that ASADA would have the current ASDA functions, the policy development, approval and monitoring roles of the ASC and would deal with all allegations of anti-doping rules violations outlined in the World Anti-Doping Code. In addition ASADA would also prepare and present cases to the Court of Arbitration for Sport and other sports' tribunals.[16] Lander and Rogers outlined the current regime under ASDA:

Most NSO anti-doping policies then recognise the Australian Sports Drug Agency (ASDA) as the testing and education body responsible for sample collection, arranging sample analysis and advising relevant sporting entities of results. More recently ASDA has assumed responsibility for athlete whereabouts requirements.

ASDA currently has no formal involvement in the investigation or prosecution of alleged anti-doping offences. These matters are the responsibility of the ASC or the NSOs. ASDA currently has no jurisdiction or authority to appear in an anti-doping offence prosecution in the Court of Arbitration for Sport (CAS) or a sporting tribunal unless permitted by the athlete and the relevant sporting bodies. Under its anti-doping policy and most NSOs’ anti-doping policies the ASC has intervention rights in prosecution of anti-doping offences.[17]

1.26      Concerns were raised over ASADA's ability to both provide policy advice and investigate anti-doping rules violations (ADRVs). The National Rugby League submitted:

In some ways this regulatory role risks some compromise if it takes a ‘hands on’ approach that makes it prosecutor, court, and legislator...It would also seem a very real risk that ASADA by trying to control all aspects of every sport will lose focus on the primary task of providing reliable information, advice and testing. Given the complexities involved in drugs in sports there is already a difficulty in meeting the information demand of sports and athletes and in ensuring sports are consulted in policy development.[18]

1.27      In its submission DCITA noted that it is not unusual for a statutory body to have roles of developing policy, making rules, investigating breaches of rules and making findings in relation to breaches of those rules, citing the Australian Competition and Consumer Commission and the Australian Communications and Media Authority as examples. DCITA argued:

As part of an integrated anti-doping policy framework, it is necessary and appropriate that ASADA act as an independent body which “stands in the shoes of sporting bodies” and exercises the functions of making anti-doping rules, investigating and making findings in relation to possible breaches of those rules and presenting the case at any subsequent sports Tribunal hearing.[19]

1.28      Mr Richard Ings from ASDA told the Committee that ASDA was looking to put in place a new organisational structure to address management issues and to ensure that there will be separations between a deterrence function, a detection function—which will be testing and investigations—and an enforcement-prosecution/presenting case-to-answer function:

But we believe that that management structure, once we put it in place, will provide the checks and balances between the various functions of ASADA. There will be an independent review process with a review board, and then of course you add on top of that the automatic protections through the AAT and the final tribunal, who will make a decision on fault. It is a very high standard of burden that has been placed on ASADA to find a doping offence against an athlete. There are significant protections in there which are probably not available to athletes in other parts of the world or in other international federations that will be available in this model.[20]

1.29      The Committee heard that the concept of an independent review board to examine the preparation of the cases and make a determination that they meet all the international WADA code standards, before a letter of infraction is issued to the athlete, is being considered.[21] Mr Colin Lyons from DCITA told the Committee:

an advisory committee...would make sure of the probity of the investigation process, that the investigation process was conducted properly and that there was an independent checking mechanism in the process so that, when ASADA made its decision about whether or not there was a case to answer or an adverse finding against an athlete, there had been a check and a balance in the system and an independent external look at that process. But we would still be an advisory committee. It would be ASADA’s decision to make at the end of the day.[22]

1.30      The Committee believes that such independent review should be considered for codification within the legislation or the NAD scheme.

1.31      Concerns were raised over the substantial expansion of the current functions of ASDA which would enable ASADA to investigate with the view to prosecute ADRVs before a tribunal. The AOC argued that:

there has been an approach in the Bill of simply following past ASDA practice and rules without proper consideration of the appropriateness thereof to ASADA, potential legal consequences and the impact on persons alleged to have committed anti-doping rule violations ('ADRVs'). This is particularly the case with the Register and the separation of the investigation and prosecutorial functions.[23]

1.32      Lander and Rogers raised concerns over the authority of ASADA to present findings and recommendations to CAS or a sporting tribunal.

It is unclear how that ability or power is actually acted upon if a sporting administration body does not request ASADA to so present. Currently the prosecution and hearing of anti-doping offences is conducted by agreement between the parties (NSO and athlete). ASDA currently is not a party to this agreement and therefore does not have any rights in respect of the arbitration. Thus it does not appear ASADA has any ability or power to prosecute in its own right any anti-doping matter in CAS or a sporting tribunal. The section does not demonstrate how ASADA has the right to make such presentation as it is not a party to any contractual arrangement under which CAS or the sporting tribunal is given jurisdiction to hear doping matters. Presumably this again will be dealt with under the NADS.[24]

1.33      However, in its submission DCITA argued that:

ASADA will not have the power to impose sanctions on athletes for breaches of the ASADA Act or NAD scheme. ASADA will, however, be able to present its findings at any subsequent Court of Arbitration for Sport (CAS) or the relevant sports tribunal hearing into whether an athlete has breached the relevant rules of sport. The exception from the application of the ADJR Act for prosecution decisions does not apply to the presentation of a case under the Bill or NAD scheme.[25]

1.34      The Committee heard that a number of sports wanted ASADA to prosecute matters and take over their anti-doping function. Mr Ian Fullagar from Lander and Rogers argued:

I think a number of sports will probably say: ‘Well, we don’t even want our tribunal to do it. It can all go to CAS, and you let us know the result.’ So they are indeed seeing this as ASADA stepping into their shoes. They do not enjoy wearing these shoes a lot of the time, because of the increasing complexity of it with the World Anti-Doping Agency code and now with—again—new legislation and the new policies that will flow after that.[26]

1.35      Similarly, SAL submitted that:

This will ease the pressure on National Sporting Organisations (NSO), such as SAL, to carry out these investigations for possible breaches within their sports. In many instances NSOs do not have the expertise or available resources to adequately investigate potential doping violations. To be able to utilise the expertise available through ASADA will be of great benefit.[27]

1.36      Mr Rofe from the AOC also argued that NSOs will be looking to ASADA to take over the prosecution of ADRVs:

...a lot of the Olympic national sports organisations will be looking to have ASADA prosecute the cases on their behalf. Past history has indicated that when the AOC did this in the lead-up to the Sydney Olympic Games, the sports readily adopted it and agreed to it, and it took a lot of the burden off them and a lot of the expense as well.[28]

1.37      From a departmental perspective Mr Colin Lyons noted:

That means, first of all, that the sporting body will not have concerns that there might be complaints made about its own independence in that investigation and, secondly, it covers the cost of the investigation and the expertise involved in the investigation. All those things are covered for the sport—in effect, as a service to sport, in the public interest.[29]

1.38      However, all witnesses did not share this position. The National Rugby League argued that sports that can afford to do so, and that have the expertise should be free to retain and use their own established and recognised tribunals:

It should be entirely possible for sports to recognise ASADA and for ASADA to in turn have a transparent view and monitor the established tribunals, without the sports actually having to use the ASADA panel. Similarly in the case of prosecutions, ASADA will no doubt establish a degree of expertise that in this area that would be seen as a useful tool for many sports dealing with positive tests. However sports that have been able to successfully prosecute cases to date may not need this resource, and certainly will not in all cases. We would propose that sports who can demonstrate effective track records in this area continue their own prosecutions.[30]

1.39      The National Rugby League went on to highlight contractual relationships within sports such as theirs:

Importantly, tribunals such as ours are also fully versed not only in the NRL antidoping policy but in the contractual relationships within the sport that tie each athlete to the NRL rules. A tribunal that is not fully versed in every aspect of such matters is very much in danger of opening technical defences that could affect later court proceedings.[31]

1.40      The AFLPA similarly argued the need to recognise current enforcement regimes and contractual arrangements:

Given the broad scope of the functions and powers of ASADA, the AFLPA is concerned with the lack of recognition in the proposed legislation as to the future role of the enforcement regimes that currently operates in sporting competitions such as the AFL competition under the auspices of contractual arrangements applying to players, Clubs and the AFL to deal with breaches of anti-doping regulations.[32]

National Anti-Doping Scheme

1.41      Mr Colin Lyon from DCITA informed the Committee that:

The first national antidoping scheme is currently being developed. That initial scheme will contain the core functions of ASADA, to enable it to operate as an efficient and effective transition to the new authority. It will also carry over, and consolidate into a single document, the existing regulations and orders relating to ASDA’s current testing functions.[33]

1.42      Central to the creation of ASADA is the establishment of the proposed National Anti-Doping (NAD) Scheme. The NAD scheme secures the implementation of the two major international instruments on anti-doping to which Australia is a party. These are:

  • the Anti-Doping Convention made at Strasbourg on 16 November 1989 under the auspices of the Council of Europe (defined in the Bill as the General Anti-Doping Convention); and
  • the UNESCO Convention Against Doping in Sport, if this Conventions enters into force for Australia. The UNESCO convention was ratified by Australia on 15 December 2005, but requires 30 states to accede to enter into force.[34]

1.43      Clauses 13, 15 and 16 of the Bill set out the mandatory matters that must be in the NAD scheme, including what the NAD scheme must authorise or require ASADA to do. In essence, the NAD scheme sets out the:

  • anti-doping rules that apply to athletes and support persons see (Clause 13); and
  • sporting administration body rules that apply to sporting administration bodies (see Clause 15)[35]

1.44      The Committee notes that the NAD scheme is currently being drafted, however, it was felt that it was important to seek some indication on which parts of the ASDA Act will be moved into the NAD scheme. DCITA provided the following advice:

The following is an outline of the parts of the ASDA Act that it is currently intended will be in the NAD scheme. Those parts are:

  • Part 3A Testing on behalf of a foreign sporting organisation or under an anti-doping arrangement;
  • Part 3B Testing by other sports administration bodies;
  • Substance of definition of “competitor” currently in s. 2A (to be defined in NAD scheme as for the purposes of s. 13(a)(a) as “athlete” who is subject to the NAD scheme) and as a consequence s. 3 “people receiving support”;
  • Section 4A, “People tampering with sports drug matters” (likely to be in the anti-doping rules);
  • Section 12, Failure to comply with a request to provide a sample;
  • Section 16, Action by Agency following decision or order on review;
  • Section 17, Request to provide sample, or keep informed of location etc;
  • Section 17A, Procedures for dealing with a sample;
  • Section 17H, Multiple-purpose testing of samples;
  • Section 67A, Provisions relating to giving of notices.[36]

1.45      The Committee was told that:

For the continued effectiveness of Australia’s anti-doping framework, it is important that the detailed anti-doping rules be made through a flexible legislative mechanism to enable quick changes to be made to the rules.[37]

1.46      Consequently,

The operational elements of the ASADA scheme will be made under a national antidoping scheme. It should be noted that that scheme is a legislative instrument and will be subject to parliamentary scrutiny and possible disallowance by either house of parliament.[38]

1.47      However, the Committee notes that with respect to a disallowable instrument, the process does not permit specific amendments to that instrument and prevents the chamber from making amendments that could be made to the bill upon its passage. The Committee raised concerns over possible delays caused by disallowance. DCITA in response to this concern argued the rationale behind the use of this mechanism:

In the interests of establishing ASADA as soon as possible, the initial NAD Scheme will be prescribed by regulations, subject to disallowance by Parliament. Prescribing the Scheme through regulations will also provide flexibility so that changes to the scheme dictated by changes to the international sports anti-doping environment will not require a full legislative amendment process on each occasion. This, and the provisions in the Bill which ensure that the NAD is made for purpose of UNESCO Convention Against Doping in Sport, are intended to provide safeguards against any possibility of the scheme containing provisions which are inconsistent with ASADA’s functions outlined in the Bill or the World Anti-Doping Code.[39]

1.48      A number of submitters felt that ASADA's ability to alter the NAD scheme, once established, via legislative instrument was problematic. The Australian Olympic Committee argued that:

Section 21 provides that ASADA's functions include those conferred under Part 2 and the NAD Scheme. Sections 9 and 10 provide that the NAD Scheme must concern the implementation of the two Anti-Doping Conventions and "ancillary or incidental matters". ASADA will have the power to amend the NAD Scheme by legislative instrument.

Whilst the initial NAD Scheme is by way of regulations, when regard is had to section 10(1) and the Legislative Instruments Act 2003, it is apparent that ASADA will have the power to itself amend the NAD Scheme. Consequently, ASADA will have the power and ability to itself determine its own functions with the only limitation being a legal challenge that its interpretation of these functions is outside the parameters described above.[40]

1.49      Lander and Rogers raised similar concerns in their submission:

Section 10 provides for the rationale and circumstances when the NADS may be amended. Such amendments are to be made by legislative instrument under section 10(1). Notably the amendments are by legislative instrument and not by regulation. We refer you to section 5 of the Legislative Instruments Act 2003 (C/w) in respect to the broad definition of legislative instrument. Despite section 11 ... the effect of these clauses is to enable ASADA to make amendments to the scheme without any real regulatory impact or sporting impact assessment. ASADA becomes self regulating.[41]

1.50      However, DCITA in its submission noted that any additional functions conferred on ASADA through the NAD scheme must be made in accordance with the international anti-doping conventions, and further:

  • clause 11 of the Bill sets out certain public consultation requirements that ASADA will be obliged to comply with before making a legislative instrument to amend the NAD scheme;
  • ASADA will be required to publish a draft of the instrument, invite submissions on the draft and consider any submissions that are received within a specified time (which must be at least 28 days from publication); and
  • as the NAD scheme is a legislative instrument, it will be subject to the provisions of Part 5 of the Legislative Instruments Act 2003 which provides for parliamentary scrutiny of legislative instruments including the possibility of disallowance by either House of Parliament.[42]

1.51      Mr Colin Lyons from DCITA told the Committee that while ASADA has a power to vary the scheme, and that in a legal sense ASADA might be seen to have conferred additional functions:

It firstly needs to be kept in mind that those variations to the NAD scheme not only have to go through a public consultation process, but more particularly are subject to parliamentary disallowance. Secondly, the fundamental limitation on the scope of the NAD scheme and the functions that could be conferred on ASADA under a NAD scheme, is that the scheme has to be made for the purpose of implementing an international anti-doping convention. In this case it is the UNESCO convention that the government has bound itself to internationally. So it has to be for the purpose of implementing the UNESCO convention, which is in turn a commitment to implement the WADA code.[43]

1.52      Some submissions raised concerns over the fact that the initial NAD scheme had not been open to public consultation.

We say at the outset that it is difficult to clearly determine the application and operation of the ASADA Bill given that the major instrument under which it will operate will be the NADS. We understand that the NADS has not yet been prepared or if it has, it is not available for review. We consider that the NADS itself as the key legislative instrument which will drive the ASADA Bill should be subject to separate inquiry in terms of its impact upon athletes and NSOs.[44]

1.53      The AFLPA argued that:

The AFLPA is concerned at the largely unfettered power proposed to be vested in ASADA to determine and promulgate through regulations the provisions of the National Anti-Doping Scheme (NAD Scheme). In particular the absence of any requirement upon ASADA to consult with sporting bodies (including athlete representative bodies) on the provisions of the initial NAD Scheme which is likely to impose substantive obligations upon such bodies and sportspersons generally.

It is noted with some concern that the proposed provisions of the NAD Scheme are not available to consider nor comment upon in the context of considering the impact of the proposed legislation.

Whilst the AFLPA recognises the requirement of ASADA to engage in public consultation regarding amendments to the NAD Scheme, it is of significant concern that the initial NAD Scheme to be set out in Regulations has not yet been provided to interested organisations for comment, despite the fact that it is intended for the NAD Scheme to be operative prior to the 2006 Commonwealth Games.[45]

1.54      The Committee regrets that the timeframe for the preparation of the Bill and the regulations meant that it could not fully consult on the details of the NAD scheme. Other witnesses also commented on the fact that the initial NAD scheme was set out in regulation and therefore there was no requirement for consultation.

Yes. There have been some general discussions with sporting bodies about what is likely to be contained in the initial scheme and a commitment to more extensive consultation in fleshing out the details of the scheme, but there is no statutory requirement for consultation before the initial scheme is made—you are right.[46]

1.55      However, as Mr Simon Rofe from the AOC rightly commented:

Australian sport has a lot riding on the NAD scheme. I would like to suggest that discussion with at least the key personnel in Australian sport around this area for quite a number of years could assist ASADA and the draftsmen in getting the NAD scheme right—or as right as it possibly can be, given the time constraints—before it is introduced.[47]

1.56      In response to these concerns Mr Lyons from DCITA argued:

I appreciate some of the concerns that have been raised today at the committee about taking things on trust and the NAD Scheme, and I do not diminish from those issues that people have raised, but it is probably worth while reiterating that the bill itself—or the act as it is proposed—does set out what must be in the NAD Scheme. It sets out all the core elements of the NAD Scheme. I think the question then becomes: would you want all the things that should be dealt with under this legislation in the primary act? If you look, for example, at the detailed rules that ASADA has under its drug-testing scheme, there are many pages. You would have a very large and inflexible piece of primary legislation which would require constant amendment. That is the rationale for having a scheme and a piece of legislation that says what must be in it, what powers must be in it and what functions must be performed under it.[48]

1.57      The Committee notes the government's intention to have ASADA in place before the Commonwealth Games and therefore the need to get the core elements of the scheme in place. The Committee was assured that:

Then ASADA would undertake a process of full public consultation before any modifications were made to the scheme and look at issues like fleshing out the details of the scheme and working with the sporting bodies to flesh those details out. The government’s intention is to establish ASADA as soon as possible, and this provides a mechanism by which that can happen.[49]

1.58      In response to the concerns raised by both witnesses and the Committee in regard to the need for public input to the initial regulations, the Government made a commitment to give:

all relevant stakeholders an opportunity to respond to the Regulations.[50]

1.59      The Committee notes that DCITA provided additional information about the proposed NAD scheme.[51]

1.60      In its submission DCITA notes that the legislation provides that the NAD scheme must require ASADA to establish and maintain a register of findings relating to investigations of possible violations of the anti-doping rules (13(1)(i)). The NAD scheme must authorise ASADA to make or remove entries from the register (13(1)(l). Further, paragraph 13(1)(m) requires the NAD scheme to authorise ASADA to publish information on and relating to the register if ASADA considers the publication to be in the public interest, or the athlete or support person to whom the information relates has consented to the publication and any conditions specified in the NAD scheme for the purposes of paragraph 13(1)(m) are satisfied.[52]

1.61      Concerns were raised over the extent to which notification on the register of an allegation of an ADRV can have a detrimental effect on a sport, particularly if there are numerous allegations around one sport. However, Mr Lyons from DCITA told the Committee that the decision to publish the name of a particular sport would be an issue that would be very carefully weighed up by ASADA. Additionally, under the Bill ASADA would also be required to weigh up the other competing public interests:

Certainly there is no assumption—in fact, to the contrary—that information on the register will be made public. It is a requirement of the bill that the NAD scheme must say that ASADA may only publish information that is on the register if it considers it is in the public interest to do so, or the athlete has consented, or it is in accordance with other prescribed conditions under the scheme itself. It is actually saying the presumption is: only publish where it is in the public interest or where you have met certain specified conditions. The reason for the register is to provide an official record. It also forms the basis upon which ASADA will decide what information to make public.[53]

1.62      Concerns were raised over the fact that it is possible for ASADA to find an allegation not proven and that such a finding does not extend to finding someone innocent of an unfair allegation. However, Mr Lyons told the Committee that:

The bill requires that the NAD Scheme must authorise ASADA to make findings relating to its investigations. It does not prescribe that a finding has to be that there was simply no case to answer. In effect, what ASADA is going to be deciding is whether, in its view, there has or has not been a breach of an antidoping rule. So, to the extent that ASADA reaches a finding that there has not been a breach of an antidoping rule that would be the finding that it would reach. It would not necessarily be a decision that ‘it is not proven and we have not made up our minds yet’. It would be a decision about whether or not, in its view, it was a breach.[54]

1.63      In its submission the AOC made comment that the AAT process essentially gives athletes 'two bites of the cherry' to challenge allegations of a possible ADRV.

As is the current situation with sports organisations and ASDA, entry on the Register will be irrelevant in the prosecution of ADRVs by ASADA as it will be bound to prove all the elements of the alleged ADRVs. Even if an athlete has challenged an entry in the Register before the AAT, there is nothing to prevent the athlete making the same challenges to the Court of Arbitration for Sport or other sports tribunal, depending which body is hearing the allegation. The body hearing the allegation is not bound by any determination of the AAT.[55]

1.64      Mr Rofe from the AOC told the Committee:

As a matter of policy, I think it is bad because it leads to what the lawyers call the possibility of falling between two stools—of one tribunal making one decision and another tribunal making another one that conflicts. It is not a good use of resources because you are arguing the same issue twice and you are not achieving a definite outcome with the minimum of effort and input. [56]

1.65      Similarly Mr Fullagar from Lander and Rogers told the Committee:

...once the athletes appeal to the AAT against whichever decision is made, be it confirmation of a test or an investigative process that ASADA has made and they have had that appeal to the AAT, they should not then have another go in CAS—that should be excluded. That may be a matter for the legislation, or perhaps for the scheme itself. They should not then go to CAS and have the ability to challenge the testing result, which is the position now—it takes extra time and expense. If they have been through a Commonwealth tribunal and the decision has been upheld, they should not then go before a contractual arbitration court and argue it again; it just wastes time.[57]

1.66      The Committee was told of the National Rugby League provisions, that, if a matter has been argued before the AAT or could have been argued before the AAT, then a player is precluded from raising those matters before the NRL tribunal. It was suggested that a similar provision would be more efficiently placed within the actual legislation than within every sport’s anti-doping policy under the NAD scheme.[58]

1.67      The AOC has raised concerns regarding the duplication of hearings and the possible waste of resources with ASDA:

ASDA's response has been to refer to rules 68 - 70 of the Leagues Anti- Doping Rules adopted by the National Rugby League and the Australian Rugby League where it is provided that a player:

    • may not challenge an entry on the Register except before the AAT; and
    • may not dispute any findings or decisions made by the AAT, or the Federal Court on appeal from the AAT.

The AOC accepts that this resolves the current situation for that sport. It is submitted that if such a provision is appropriate, then it should be part of the legislative and regulatory framework and therefore apply to all sports and not be dependent on sports organisations including it in their individual anti-doping policies.[59]

1.68      However, Mr Colin Lyons from DCITA told the Committee that:

It would be a significant policy issue for the government to pass legislation that said, ‘If you go and take particular issues to the AAT, you are prevented from taking those issues before a sports tribunal which is operating under private contract law.’ [60]

1.69      Further, the Bill provides that the NAD scheme must not allow waiver of a right to apply to a court, tribunal or other body or person for review of a decision under the NAD scheme. In its submission DCITA noted that:

Clause 14 (4) provides that an athlete or support person has the right to apply to the AAT for review of a decision of ASADA to enter that person’s name and particulars on the register. The AAT appeal right is a domestic right, as opposed to the appeal process through the CAS, an international body; it is standard policy for government decisions which may adversely affect an individual to be subject to merits review...Removal of an athlete’s right of review of such decisions by the AAT would remove an important right in relation to an administrative decision that may affect a person’s rights, interests or legitimate expectations.[61]

1.70      Mr Colin Lyons reiterated this during the public hearing arguing:

...the government’s general policy is that, where a statutory body makes decisions that affect the legal interests of the people who are affected by those decisions, there should be not only a right of review under law for procedural issues but also a review on the merits of the issue. That is quite consistent with most Commonwealth legislation. It is the exception rather than the rule to oust the jurisdiction of the AAT, and you would need very strong, compelling arguments to do so.[62]

1.71      Nevertheless, the Committee understands that the Department is considering whether it would it be possible and appropriate for the model sporting administration rules of the NAD Scheme to say that sporting bodies’ policies and procedures should provide for athletes to agree that in a subsequent hearing by CAS or another sporting tribunal they will not dispute findings made by the AAT.

ASADA's Powers of Investigation

1.72      Concerns were raised that ASADA would not have adequate powers to compel the production of evidence:

The problem we see is that if you do not have the power to compel the production of evidence then an investigation can be doomed to fail from the start simply by a refusal to provide that evidence.[63]

1.73      Concerns were raised that, unlike CAS hearings or AAT hearings, powers of compulsion have not been made available to ASADA. Mr Simon Rofe from the AOC told the Committee:

To compare it to the present situation, presently you have the power to compel, through the issue of subpoenas under the Commercial Arbitration Act, the provision of evidence to CAS. You also, by various rules of sports, have the power to compel the people involved in sport to co-operate with your investigations; that is quite common in the various sports. As it currently stands, ASADA will not have the power of those sports, although it would have the power under the Commercial Arbitration Act, if it were to prosecute for doping offences before CAS, to issue subpoenas for the production of evidence. But if it has that power to compel the production of documents at that stage, common legal sense would tell you that you want the information before you make a decision to go to, rather than when you are in front of, CAS.[64]

1.74      However, the Committee notes that as part of the funding agreements between the ASC and the sporting bodies, athletes, their staff and themselves are required to co-operate with ASADA in any investigations.[65]

As part of the Government’s broader anti-doping policy framework, sporting bodies will be required as a condition of funding to have rules which require athletes, support personnel and other persons within the control of the sporting body to co-operate with ASADA. The Government considers that, through a combination of legislation, including the NAD Scheme, and the contractual requirements in funding agreements between the ASC and sporting bodies, ASADA will be able to effectively perform its investigation functions.[66]

1.75      Mr Colin Lyons from DCITA told the Committee:

The bill is part of Australia’s overall anti-doping strategy and works in conjunction with funding agreements between sporting organisations and the Australian Sports Commission. As a funding condition, sporting organisations that are in receipt of Australian government funding will be required to submit to ASADA’s anti-doping jurisdiction.[67]

1.76      However, the National Rugby League was critical of the government's use of funding to achieve acceptance of policy change:

In essence governments have used the issue of sports funding as a way of leveraging sports to support government backed policy changes but this in itself leaves those sports vulnerable to other legal challenges. It is a process that if continued risks ultimately leading to one or several sports opting out altogether and that would be to the detriment of all.[68]

1.77      In their submission Lander and Rogers note:

If an individual or sporting administration body fails to comply with the ASADA Bill or NADS it is not clear what can be done in terms of penalty or sanction if that person or body is not funded or recognised by the ASC or a State government. For example, if the AFL wants to opt out even though it is a “sporting organisation” under the ASADA Bill and is willing to forgo ASC funding and recognition then there appears no further action that can be taken against them.[69]

Definitions

1.78      Both the Australian Olympic Committee and Lander and Rogers raised concerns in their submissions about definitions contained in the Bill.

1.79      The AOC submission noted that:

The Australian Sports Drug Agency Act 1990 has, as a key concept. the definition of "competitor" dependent on competing in a sporting competition or training to so compete. Drug testing schemes apply to competitors.

In contrast, the Bill focuses on "athletes" - a term that is defined by reference to participation in a sporting activity. This raises the possibility of a lawyers' banquet in that "sporting activity" is not defined and is a term that is not used in the World Anti- Doping Code nor the two Conventions. In the Code, an athlete is defined by reference to participation in sport at different levels. In the General Anti-Doping Convention, the term 'sportsmen and sportswomen' is defined as "those persons who participate regularly in organised sports activities". The UNESCO Anti-Doping Convention follows the Code definition in defining an athlete as "any person who participates in sport..."[70]

1.80      The AOC continues:

The use of "sporting activity" rather than "sport" is, I presume, deliberate. Whilst there is debate as to what is meant by "sport", it is clearly narrower in meaning than "sporting activity". I am unsure what exactly is intended by the use of the word "sporting" as an adjective to the noun "activity" as opposed to "sport" as a noun or "sports" as the adjective to "activity".[71]

1.81      The AOC is of the view that a 'sporting activity' does not mean the same thing as a 'sports activity' or 'sport'. This difference is compounded when all that is required is participation in a sporting activity rather than participation in sport, noting:

By way of example, pole dancing is not recognised as a sport, yet participation in pole dancing is participation in a sporting activity.[72]

1.82      The AOC is concerned at possible ramifications of:

...using these particular phrases in lieu of the terms used in the World Anti-Doping Code and the two Conventions and the current 'competitor' approach under the Australian Sports Drug Agency Act? What will the consequences be for Australian sport? Will it possibly lead to a challenge to the constitutional basis for the Australian Sports Anti-Doping Authority Act, once the Bill is proclaimed and any NAD Scheme made thereunder?[73]

1.83      Lander and Rogers expressed similar concerns, suggesting that the breadth of certain definitions appears to capture any person who participates in any sporting activity. Lander and Rogers are of the opinion that:

...all definitions in the ASADA Bill and the NADS should reflect the definitions in the Code.[74]

1.84      In its submission, the DCITA addressed the AOC concerns that the Bill as it is currently drafted, has resulted in the adoption of definitions different from, and therefore potentially conflicting with the definitions in key documents such as the World Anti-doping Code and the UNESCO Anti-Doping Doping Convention. It stated that the AOC’s concerns:

... are being carefully examined and if there is a demonstrated need to amend the definitions, the Government will consider making minor and technical amendments to the ASADA Bill.[75]

1.85      Mr Lyons from DCITA reiterated this statement, advising the Committee:

The only comment I make from the department’s perspective is that the definition of athletes is a technical drafting issue that we are discussing with the drafter. The other proviso I would make is that, for example, the definition of which athletes will be subject to the NADS is at the end of the day determined by NADS itself. Even if one were to adopt definitions entirely consistent with the WADA code there would be a certain circularity in doing so because the provisions would say that the athletes included any other athletes determined by the national anti-doping organisation, in this case, ASADA. So doing that would not provide an enormous amount of certainty.

Given that the NADS can define which class of athletes is going to be subject to ASADA’s jurisdiction, we are looking at the issues that have been raised by the AOC: what technical amendments to the bill might be possible and, more particularly, what we might do to the NADS to cover off those issues and to provide certainty, perhaps even based on the current ASDA definitions. That will then allow ASADA to go through a more detailed consultation process if it wanted to vary the scheme.[76]

Australian Sports Drug Medical Advisory Committee (ASDMAC)

1.86      Part 7 of the ASADA Bill provides that the Australian Sports Drug Medical Advisory Committee established under the Australian Sports Drug Agency Act 1990 continues under and subject to the provisions of the Bill.

1.87      Mr Kevin Isaacs of DCITA told the Committee that:

ASDMAC comes over to ASADA as a going concern with its existing role, its existing appointees and its existing powers and functions... Where ASDMAC has started a matter, it is able to continue under ASADA.[77]

and that:

Clause 11, schedule 2 of the consequential and transitional provisions bill provides for the automatic reappointment of ASDMAC members and the automatic reappointment of the ASDMAC chair, with the terms of their residual appointment which would otherwise have been the case.[78]

1.88      While stating its confidence that 'the Bill will ensure a smooth transition from ASDA and the enhanced powers of ASADA will be a valuable weapon in the fight against drugs in sport',[79] the Australian Sports Drug Medical Advisory Committee (ASDMAC) does raise in its submission two particular concerns it has with the Bill.

1.89      Section 52 of the Bill sets out the functions of ASDMAC in addition to any functions conferred on it by the NAD scheme.

1.90      ASDMAC states that its principal task is to provide Therapeutic Use Exemptions (TUEs) to athletes. It is concerned this responsibility is not reflected in the functions listed in section 52 of the Bill, noting that:

...ASDMAC is not identified as Australia's Therapeutic Use Exemption Committee (TUEC) with its primary function of granting of TUEs.[80]

1.91      ASDMAC states that it considers this to be 'an important omission'[81] in the Bill.

1.92      ASDMAC's second concern relates to section 54.2 of the Bill which sets out qualifications required for appointees to the Advisory Committee. ASDMAC advises that the wide range of medical conditions occurring in athletes applying for therapeutic use exemptions has necessitated members having a broad knowledge and understanding of both medicine and sport and to have significant experience in managing the health of athletes.[82]

1.93      ASDMAC continued:

While clinical pharmacologists and endocrinologists have specific knowledge and expertise, few are likely to have the broad based experience of medicine and sport that has been important to evaluate many applications for TUEs received from athletes' physicians.[83]

1.94      Accordingly, ASDMAC recommends that clause 54.2 concerning appointments should include:

...with a knowledge of sport and experience in the medical management of athletes.[84]

1.95      In response to a question taken on notice at the Committee hearing, DCITA has stated that 'the regulations will set out the detailed functions and procedures of the Australian Sports Drug Medical Advisory Committee (ASDMAC).[85]

1.96      Given the importance of ASDMAC the Committee believes that the concerns of ASDMAC should be addressed when the regulations are being prepared.

Conclusion

1.97      The purpose of these Bills is to enhance Australia's ability to support a robust national and international anti-doping framework. The establishment of ASADA with its enhanced powers of investigation and presentation at hearings conducted by the CAS and other tribunals will ensure that Australia continues to be at the forefront of the fight against doping in sport. Moreover, the World Anti-Doping Agency, the international body responsible for combating the use of drugs in sport has welcomed the creation of ASADA.

1.98      The Committee believes that the legislation is an important first step towards advancing a more effective and efficient anti-doping framework in Australia and will watch the development of the NAD scheme closely. Given the significance of this legislation and the impending Commonwealth Games to be held in Melbourne from 15-26 March 2006, the Committee endorses that the Bills proceed as a matter of priority.

1.99      The Committee notes the government is open to minor amendments to the Bill to deal with issues raised during this inquiry. The Committee recommends:

Recommendation

1.100         That the Australian Sports Anti-Doping Authority Bill 2005 and the Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) Bill 2005 be agreed without amendment.

Senator Alan Eggleston
Chairman

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