Bills Digest No.
61, 2019–20
PDF version [680KB]
Karen Elphick
Law and Bills Digest Section
29
November 2019
Contents
Purpose and
history of the Bill
Structure of
the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Other
provisions
Appendix
A—Selected recommendations of the Wood Review
Date introduced: 17
October 2019
House: House of
Representatives
Portfolio: Youth
and Sport
Commencement: The
substantive provisions commence on the later of the day after Royal Assent
or 1 July 2020.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at November 2019.
Glossary
Purpose and
history of the Bill
The purpose of the Australian
Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019
(the Bill) is to amend the Australian Sports
Anti-Doping Authority Act 2006 (ASADA Act)
to establish a single point of responsibility to address all sport integrity
matters.
It will unite all the existing nationally focussed sport integrity
functions into a single entity, Sport Integrity Australia (SIA). The Bill
renames the ASADA Act as the proposed ‘Sport
Integrity Australia Act 2019’. The extended jurisdiction over sport
integrity is described in the Explanatory Memorandum:
Sport Integrity Australia will implement Australia’s
international obligations both under the UNESCO International Convention
against Doping in Sport and, once in force and binding on Australia, the Council
of Europe Convention on the Manipulation of Sports Competitions (Macolin
Convention). In order to do this, Sport Integrity Australia will bring
together the functions of the Australian Sports Anti‑Doping Authority,
the National Integrity of Sport Unit, and the sports integrity functions of
Sport Australia.
Once established and operating, it is anticipated Sport
Integrity Australia will expand to include enhanced match-fixing detection and
suspicious wagering alert capabilities, a whistle-blower scheme, and promote
national collaboration on sports wagering-related integrity frameworks.[3]
A substantially similar Bill, the Australian
Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019
(the first Bill) was introduced into the House of Representatives on 4 April
2019. Debate on the second reading was adjourned and the Bill lapsed when the
House was dissolved on 11 April 2019.
Structure of
the Bill
The Bill has some standard technical provisions and then four
schedules which make the amendments.
Schedule 1—Main amendments
A large number of the proposed amendments to the ASADA
Act delete references to the Australian Sports Anti-Doping Authority (ASADA)
and substitute SIA. The main substantive changes to the ASADA Act
proposed by the Bill are:
- items
1-2 rename the ASADA Act as the Sport Integrity Australia Act
2019 (SIA Act)
- items
4 and 12 provide for the object of the Sport Integrity Australia Act
which centres on addressing threats to sports integrity
- item
19 omits Part 3 of the ASADA Act and substitutes proposed Part 3—Sport
Integrity Australia’s establishment and function
- items
20–36 amend Part 3A—Chief Executive Officer
- item
37 inserts proposed Part 4—Sport Integrity Australia Advisory
Council.
Schedule 2—Consequential amendments
Items 5–6 make substantive amendments to the Australian Sports
Commission Act 1989 to ensure that the functions of Sport Australia do
not overlap with those of the CEO of SIA.[4]
Item 23 defines SIA as an ‘enforcement body’ for
the purposes of the Privacy
Act 1988.
The remaining provisions amend a number of Acts to delete
references to ASADA and substitute SIA.
Schedule 3—Contingent amendments
The provisions of Schedule 3 make consequential amendments
which are contingent on Part 1 of Schedule 1 of Australian
Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping
Capability) Bill 2019 commencing before Schedule 1 of the Bill.
Schedule 4—Savings and transitional
provisions.
These proposed provisions ensure that the privacy of
existing records and documents, and current legal proceedings and protections
are maintained as ASADA transitions to become SIA.
Background
In 2018 the Report of the
Review of Australia’s Sports Integrity Arrangements (Wood Review)
recommended a range of reforms aimed at enhancing Australia’s capability to
address such threats to sports integrity as doping, match fixing, corruption in
sports administration, exploitation by organised crime and bullying and abuse
of participants. The Wood Review identified three main areas of
challenge to adequately protecting the integrity of sport:
- deficiencies
in the ability to collect, analyse and disseminate information and intelligence
hinder effective stakeholder coordination and increase the risk of compromise
of sport and sporting competitions
- different
government agencies have varying responsibilities across the sports integrity
continuum and there are gaps, duplication and other inefficiencies and
- sports
integrity resourcing and capability varies across national sporting
organisations (NSOs) and diminishes quickly beyond elite levels and professional
sports.[5]
The centrepiece of the Wood Review recommendations
is the formation of a National Sports Integrity Commission (NSIC) to manage
sports integrity matters at a national level.[6]
The Wood Review proposed that some responsibilities remain with ASADA
and that the NSIC be a separate agency. A list of all the Wood Review recommendations
relating to the NSIC is included at Appendix A.
In Safeguarding
the Integrity of Sport—the Government Response to the Wood Review (Government
Response), the Government agreed or agreed in principle with most of the
recommendations. However, the Government decided that it would be more
effective to merge ASADA into the proposed NSIC as the sole entity with
responsibility for all sports integrity matters:
The Government notes the importance of effective anti-doping
measures to protect the integrity of Australian sport and agrees with the Wood Review
recommendations to enhance the national anti-doping capability.
However, the Government is of the view that this would best
be achieved by combining the current operations of ASADA into the NSIC, as this
will provide a single sports integrity body to ensure an effective response
across the full range of integrity threats and a single point of contact for
all sports integrity stakeholders. It will reduce duplication of effort and
realise significant administrative efficiencies.[7]
The Government Response noted the complexity of
establishing the NSIC and proposed it be established in a phased approach.
Stage One would unite the current sports integrity functions of ASADA, the NISU
and SportAus and develop further viable options for Government consideration
for the implementation of Stage Two. Stage Two would consider whether to implement
capabilities relating to the oversight of sports wagering as well as
intelligence collection, identification and analysis (including intelligence
related to suspicious betting activity and other sports integrity issues).[8]
Implementation of Stage Two would be dependent on industry support and availability
of funding.
The Government Response contains a table setting
out the specific response to each recommendation of the Wood Review.[9]
This Bill is one of an initial package of four pieces of legislation that was
prepared to implement most of Stage One of the Government Response.[10]
The other three are the:
This Bill aims to complete Stage One by establishing the
recommended NSIC named ‘Sport Integrity Australia’ (SIA). Once SIA is
established, the Government intends integrating the existing national sport integrity
functions of the NISU and Sport Australia.
The Macolin Convention
The purpose of the Council
of Europe Convention on the Manipulation of Sports Competitions (Macolin
Convention)[11]
is to combat the manipulation of sports competitions in order to protect the
integrity of sport and sports ethics in accordance with the principle of the
autonomy of sport. The main objectives of the Macolin Convention are:
- to
prevent, detect and sanction national or transnational manipulation of national
and international sports competitions
- to
promote national and international co-operation against manipulation of sports
competitions between the public authorities concerned, as well as with
organisations involved in sports and in sports betting.[12]
The Macolin Convention recommends the
criminalisation of the manipulation of sporting competitions;[13]
however, Article 2 provides that the fight against the manipulation of sports
competitions shall ensure respect, for the following principles:
- human
rights
- legality
- proportionality
- protection
of private life and personal data.
The Sports Conventions Division of the Council of Europe
has explained that the Macolin Convention inspires policies which
include:
- Agreement to pursue nationally consistent legislative
arrangements.
- Structured co-operation (notably via the establishment of
national platforms within article 13) processes at national level, thus
facilitating trans-national co-operation. This should be put in place and
facilitated by the Parties.
- Legal arrangements for regular co-operation between law
enforcement authorities and private stakeholders (sport movement, betting
operators, etc.) to enhance co-operation in detection and investigations.
-
Legal arrangements and integrity agreements between sports and
betting companies which include requirements to share information, provide
sports with a right to veto bet types and provide a financial return from
sports betting to sports.
- The adoption of codes of conduct by sports which include
safeguards against manipulations of sports competitions and protection for
whistle-blowers.
- Forewarning that government funding to sports on which there is
betting will be contingent on those sports implementing appropriate anti-match
fixing and anti-corruption policies and practices.[14]
Committee consideration
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for
the Scrutiny of Bills (Scrutiny of Bills Committee) reported two scrutiny
concerns in Scrutiny Digest 8 of 2019.[15]
Immunity from civil liability
Proposed subsection 78(1A) (at item 53 of
Schedule 1) provides that no civil liability will arise from any action taken
by an Advisory Council member in good faith in the performance or purported
performance of any functions of the Advisory Council. The Scrutiny of Bills
Committee considered the Explanatory Memorandum did not sufficiently justify
that provision of immunity. It requested further advice from the Minister on why
it is considered appropriate to provide members of the Advisory Council with
civil immunity so that affected persons have their right to bring an action to
enforce their legal rights limited to situations where lack of good faith is
shown.[16]
Privacy
Item 23 of Schedule 2 to the Bill makes SIA an
enforcement body for the purposes of the Privacy Act. The Scrutiny of
Bills Committee requested the Minister provide a fuller explanation as to:
- why
it is considered necessary and appropriate for SIA to be an enforcement body
for the purpose of the Privacy Act and
- how
SIA’s enforcement related activities will be undertaken in practice, including
the nature of the enforcement powers and who will be exercising the enforcement
powers.
At the time of publication the Minister’s response was not
yet available.
Policy
position of non-government parties/independents
On 1 August 2018, Senator Don Farrell, Shadow Minister for
Sport, issued a media release stating that the Australian Labor Party (Labor)
welcomed the release of the Wood Review and urged the Government to
consult with national sporting organisations and other key stakeholders.[17]
In addition the Labor Party National Platform states:
Labor will ensure Australia is at the forefront of efforts
against doping and match fixing in sport and, in partnership with sports, will
provide leadership in the international effort to protect the integrity of
sport.[18]
The policy of The Australian Greens on Sport and Physical
Recreation includes support for:
- a
drug free sporting environment
- governance
structures and financial structures in sporting organisations and associations
to ensure integrity in all sporting codes
- reduced
influence of gambling on sport through:
- more
tightly regulated sports betting
- education
about the risks and harms of gambling on sport and
- restricted
advertising of gambling on sports.[19]
As at the date of writing this Bills Digest, it appears
that no non-government parties or independents have indicated a position on the
Bill.
Position of
major interest groups
While there have been no statements from major interest
groups on the Bill as drafted, there was extensive consultation during the Wood
Review and some groups have issued statements about the Government
Response. The Wood Review reported:
A majority of
stakeholders indicated support for a central sports integrity ‘clearing house’
which, at a high level, would be responsible for cohesively drawing together
existing sports integrity capabilities, knowledge and experience; and
coordinating, nationally, all elements of the integrity threat response
continuum: prevention, monitoring and detection, investigation, and
enforcement.[20]
Australian Olympic Committee
The Australian Olympic Committee (AOC) supports all 52
recommendations of the Wood Review, noting the thoroughness of Justice
Wood and his Panel members and commending the Government Response:
The establishment of the National Sport Integrity Commission
(NSIC) will provide a cohesive, well-resourced national level capability. This
is required now more than ever if Australia is to effectively respond to
escalating integrity risks ... [which are] beyond the control of any single
stakeholder and require a robust and nationally coordinated response across
sports, governments, regulators, the wagering industry and law enforcement.[21]
The AOC questioned in February 2019 whether
the Government had committed sufficient funding for implementation.[22]
The Government expects to redirect $22 million per annum of funding with an
additional $7.7m in 2020–21 offset by residual savings.[23]
Commonwealth
Games Australia
Commonwealth Games Australia (CGA) supports the
consolidation of existing Federal Government functions in sports integrity
under a new agency – Sport Integrity Australia – and the conduct of a two-year
pilot of a new National Sports Tribunal. CGA also supports the signing of the Macolin
Convention.[24]
Coalition of
Major Professional and Participation Sports
The Coalition of Major Professional and Participation
Sports (COMPPS) represents the major participation sports in Australia
including Australian football, rugby, football, cricket, rugby league, netball
and tennis. COMPPS indicated strong support for national regulation or
coordination of sports integrity issues. However, COMPPS felt that a national
commission constituted as a government agency would have limited effectiveness,
submitting that the practical delivery of enhanced integrity outcomes must come
from industry cooperation.[25]
It noted that its members have well-established tribunals to hear integrity
related matters at first instance and on appeal.[26]
The Wood Review specifically considered this
submission but preferred the proposed NSIC.[27]
Exercise and Sports Science Australia
Exercise and Sports Science Australia (ESSA) is an
accrediting body for professional support personnel and sports scientists. ESSA
strongly supports the proposed NSIC and a proposed whistle-blower scheme to be
administered by the NSIC.[28]
Financial
implications
According to the Explanatory Memorandum, the Bill will
have no net financial cost to the Commonwealth. The Government intends to
support SIA by approximately $22m per annum from existing ongoing
appropriations with an additional $7.7m in 2020–21 offset by residual savings from
within the broader Health Portfolio 2018–19 MYEFO context.[29]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[30]
The Government acknowledges that the Bill engages the
right to privacy and reputation expressed in Article 17 of the International Covenant on Civil and Political Rights (ICCPR).[31]
The impact of the Bill on this right is discussed in detail in the Statement of Compatibility with Human Rights at
pages 2–4.
The Bill proposes to declare SIA as a law enforcement body
for the purposes of the Privacy Act and to exempt certain information
provided to SIA from freedom of information legislation.
The Government considers that the proposed interference
with privacy is proportionate, is not arbitrary, has a legitimate objective and
is therefore compatible with human rights.[32]
Parliamentary Joint Committee on
Human Rights
At the time of writing this Bills Digest, the
Parliamentary Joint Committee on Human Rights had not yet reported on this
Bill.
Key issues and provisions
Constitutional
basis for legislation
There is no express Commonwealth constitutional power to
legislate in the subject areas of sport, sports integrity or crime. Section 3
of the ASADA Act identifies implementing
Australia’s international anti-doping obligations as the foundation for the
Act. The Wood Review noted:
The anti-doping framework, both domestically and
internationally, is highly complex; it involves national and international
governance, private corporations and NGOs in a complicated web of contractual
agreements, private arbitration and government regulation which operates both
coercively and by way of moral imperative and reputational protectionism.[33]
Australia is a party to several international conventions
which provide a basis in the external affairs power of the Constitution
(section 51(xxix)) for Parliament to legislate: the ASADA Act and the Australian Sports Anti-Doping
Authority Regulations 2006 implement the Council of Europe Anti-Doping Convention 1989,[34]
the UNESCO International Convention against Doping
in Sport,[35] and the World Anti-Doping Authority Code
(the Code).[36]
The Bill also relies on these conventions in transferring anti-doping functions
to the SIA.
The broader sport integrity functions being transferred to
SIA rely in part on the Macolin Convention. Australia has signed the Macolin
Convention, but until it is ratified it will not be capable of activating the
Commonwealth’s external affairs power to give constitutional authority to
general federal regulation of sports integrity matters. Some of the CEO’s
broader sports integrity functions will, until ratification, be limited by subsection
21(2) of the ASADA Act (which will become the SIA Act on
commencement of the Bill).
Limits of
CEO powers
Subsection 21(2) of the ASADA Act sets out the
constitutional limits within which the CEO ASADA must perform his or her
functions. The Bill has the effect that these limits will still apply to the
CEO. To be certain that an intended action is supported by the Bill, the CEO
will need to identify whether:
- an
intended action or decision is in performance of a function conferred by
subsection 21(1)
- the
function comes within the limits of powers described in subsection 21(2)
and
- the
function is being exercised for the purposes of the Act.
Objects clause
Item 4 of Schedule 1 inserts proposed section 3A
which defines the objects, or purposes, of the Act.
The existing ASADA Act does not have an objects
clause. It should be noted that even in the absence of an objects clause, the
CEO has a statutory duty to govern ASADA in a way that promotes achievement of ASADA’s
purposes.[37]
The incorporation of an objects clause positively contributes to good
governance by making those purposes express.
In summary, the overall purpose of the SIA is to
coordinate a national approach to matters relating to sports
integrity in Australia, including preventing and addressing threats
to sports integrity.
Proposed definitions of ‘matter’,
‘sports integrity’ and ‘threats’ are included in
the Bill (see discussion below).
Definition
of sports integrity
Item 11 of Schedule 1 inserts a proposed
definition of ‘sports integrity’ in section 4; ‘sports integrity’
means ‘the manifestation of the ethics and values that promote community
confidence in sport’.
The Explanatory Memorandum does not explain the origin and
intended meaning of this critical term. The definition is not intuitive and a
fuller explanation of the term would have assisted Parliament in understanding
the policy of the Bill.
Some content is given to the term by the non-exhaustive proposed
definition of ‘threats’ to sports integrity:
- threats
to sports integrity include:
a) the
manipulation of sporting competitions
b) the
use of drugs or doping methods in sport
c) the
abuse of children and other persons in a sporting environment
d) the
failure to protect members of sporting organisations, and other persons in a
sporting environment, from bullying, intimidation, discrimination or harassment
(item 12).
Expansion of CEO’s powers and
functions
The proposed key office holder, repository of statutory
powers, and accountable authority of SIA is the CEO of SIA (CEO).
CEO ASADA currently has powers and functions in relation
to ‘sports doping and safety matters’ as defined in section 4 of the ASADA
Act:
sports doping and safety matter means:
(a) a matter relating to drugs and/or doping
methods in one or more sporting activities; or
(b) a matter relating to the safety of
athletes.
Items 23–25 of Schedule 1 repeal references in the
CEO’s functions to ‘sports doping and safety matters’ and substitute the
broader term: ‘matters relating to sports integrity.’ The broader
term relies on the proposed definitions in section 4 inserted by
items 9, 11 and 12.
These proposed definitions:
- ensure
the CEO retains all the functions and powers currently exercised by the CEO
ASADA and
- expand
the CEO’s functions and powers over further matters relating to sports
integrity.
The narrower description of ‘sports doping and safety
matters’ will still apply in relation to the powers and functions of the
Australian Sports Drug Medical Advisory Committee (ASDMAC), leaving the scope
of ASDMAC’s powers and functions unchanged.[38]
Amendments to Part 3A—Chief
Executive Officer.
Proposed section 20D establishes the statutory
office of CEO of SIA (item 22).
Proposed paragraph 21(1)(c) expands the function of
the CEO by referring to ‘matters relating to sports integrity’ when advising
the Australian Sports Commission (ASC) about matters that should be included in
the contractual agreements with NSOs (item 23).
CEO’s
functions
The functions of the CEO are expanded in proposed
paragraphs 21(1)(d) to (jae) to encompass new responsibilities for sports
integrity (item 24). The expanded functions include:
- coordinating
a national approach
- strengthening
relationships between stakeholders
- working
with domestic and overseas stakeholders to confront match-fixing and fraud
- advising
Australian governments on policy and recommending legislative change
- providing
assistance and advice to sporting bodies on threats to sports integrity
- advancing
programs and education initiatives, including by provision of resources,
analysis and research to confront threats to sports integrity.
An amendment to subparagraph 21(2)(a)(iii) (at item 26
of Schedule 1) clarifies the exercise of functions by the CEO for purposes
related to external affairs. The amendment clarifies that the CEO may perform
functions in or outside Australia in relation to persons, places, matters or
things outside Australia.[39]
Appointment,
Terms and Conditions
Division 2 of Part 3A deals with the appointment of the
CEO and Division 3 deals with the terms and conditions of the CEO. These are
not substantively amended by this Bill, and accordingly remain the same as
those for the CEO ASADA.
Termination
Proposed subsection 24J(1) updates the phrasing of
the termination clause. It is clearly not intended to be a substantive change
and accords with the provisions usually made for statutory officers (item 29).
Proposed Part 3—Sport Integrity
Australia’s establishment
Part 3 of the ASADA Act establishes ASADA and
describes its functions. Item 19 omits Part 3 and substitutes proposed
Part 3—Sport Integrity Australia’s establishment and function. Proposed
Part 3 (proposed sections 20—20CAA) establishes SIA and describes
its functions.
The note to proposed section 20B, ‘Sport Integrity
Australia does not have a legal identity separate from the Commonwealth’, draws
attention to proposed section 20CAA which provides that SIA has the
privileges and immunities of the Crown. SIA will therefore be a non-corporate
Commonwealth entity for the purposes of the Public Governance,
Performance and Accountability Act 2013 (PGPA Act). The PGPA
Act requires Commonwealth entities to comply with accountability measures
including providing reports to Parliament.[40]
Importantly, non-corporate Commonwealth entities are also given certain powers
under the PGPA Act, including with respect to expenditure of monies:
The accountable authorities of
non‑corporate Commonwealth entities have power to enter into
arrangements, and approve commitments of relevant money, on behalf of the
Commonwealth (see section 23).[41]
Officers of non-corporate Commonwealth entities also have
certain duties under Part 2–2 Division 3 of the PGPA Act, including
a duty to act honestly, in good faith and for a proper purpose.[42]
Proposed Part 4—Sport Integrity
Advisory Council
Item 37 inserts proposed Part 4 (proposed
sections 25–37) which establishes a new body, the Sport Integrity Australia
Advisory Council (SIAAC) and provides for its functions.
An Advisory Group of ASADA was previously established by
Part 4 of the ASADA Act, however Part 4 of the Act was repealed and the
Advisory Group abolished by the Statute Update
(Smaller Government) Act 2018. The Bills Digest prepared for that Act
said:
The Explanatory Memorandum does not provide a detailed policy
justification for the abolition of the ASADA Advisory Group beyond the general
statement of policy intention in relation to all of the proposed amendments in
the Bill. However, it indicates that the advisory group “is not active and has
no current members” and further states that, despite the repeal of a
legislatively mandated advisory group, “the ASADA Chief Executive Officer will
still be able to seek advice as and when required”.[43]
SIAAC differs from the previous Advisory Group in a number
of significant ways, so its role and function should be considered afresh.
Proposed subsection 27(1) empowers the SIAAC to
provide advice on its own initiative to the CEO, but only on request to the
Minister. The advice is not intended to be binding on the CEO in any way.[44]
Proposed subsection 27(2) places limits on SIAAC advice:
- it
must be strategic advice only and
- it
must not relate to a particular individual or particular investigation.
The Explanatory Memorandum explains these limitations are World
Anti-Doping Authority (WADA) requirements necessary to respect the autonomy of
the National Anti-Doping Organisation (NADO).[45]
Ministerial
directions
Proposed section 37 requires the SIAAC to comply
with written directions from the Minister. These written directions are not
legislative instruments and are not required to be registered on the Federal
Register of Legislation or be subject to disallowance. This procedure might be
considered appropriate for directions to an advisory council or committee (item
37).[46]
Composition of SIAAC
SIAAC is to have a chair and between six and ten other
members (proposed paragraph 28(a)). Each is appointed by the
Minister on a part-time basis for a period not exceeding three years, but may
be reappointed (proposed subsections 29(1) and (2)). The CEO
cannot be the chair, a member or an acting member of the SIAAC (proposed
subsections 29(4), 30(1) and 30(2)).
The members (and any acting members) are required to have
substantial knowledge or experience in a relevant field listed in proposed
subsection 29(3):
- sports
administration and participation
- sports
law
- intelligence
and information gathering
- law
enforcement
- anti‑doping
- high
performance sport
- athlete
physical or mental health or well‑being
- harassment
and discrimination prevention
- child
protection
- formulation
of government policy and public administration
- education
and learning
- arbitration,
mediation or other dispute resolution and
- any
other appropriate field of expertise.
Remuneration and allowances for members will be determined
by the Remuneration Tribunal, but in the absence of a determination, may be
prescribed by the Minister (proposed section 31). This is a usual
provision which allows remuneration to be paid until the Remuneration Tribunal
can consider the matter.
The provisions for leave (proposed section 32),
disclosure of interests (proposed section 33), resignation (proposed
section 34) and termination (proposed section 35) accord with the
usual provisions applied to statutory appointments.
Proposed subsection 78(1A) provides protection from
civil action to SIAAC members acting in good faith in the performance of their
duties (item 53).
Schedule
2—Consequential amendments
Secrecy provisions
protecting documents
Two provisions in Schedule 2 propose substantive
changes to other Acts intended to establish the status of SIA as a law
enforcement body. Establishing that status is important to facilitating the
flow of information necessary for enforcement related activity between SIA and
other agencies.[47]
Section 38 and Schedule 3 of the Freedom of Information
Act 1982 (FOI Act) identify documents that are exempt from
disclosure under the FOI Act because there are secrecy provisions in an
Act. Section 67 of the ASADA Act is a secrecy provision which
provides that protected information may only be disclosed under certain
conditions. No provisions of the ASADA Act are currently listed in
Schedule 3 of the FOI Act. At item 13 of Schedule 2, the Bill
proposes to add Sport Integrity Australia Act 2019, section 67’ to
Schedule 3 of the FOI Act. This would have the effect of protected information
under the Sport Integrity Australia Act being treated as an ‘exempt
document’ under the FOI Act regime.
Section 6 of the Privacy Act defines ‘enforcement
body’. There are currently 14 named bodies and several provisions that more
generally describe such bodies. ASADA is not listed, nor is the NISU. It is
arguable that both those bodies and SIA may be defined as enforcement bodies by
one of the paragraphs generally describing enforcement bodies; for example:
enforcement body means: ...
(f) another agency, to the extent that it is responsible for
administering, or performing a function under, a law that imposes a penalty or
sanction or a prescribed law.
However, it may still be desirable for SIA to be listed as
an ‘enforcement body’ to avoid unnecessary uncertainty or litigation as a
result of SIA exercising its functions.
Item 23 of Schedule 2 adds SIA to the
definition of ‘enforcement body’. The Government intends that by listing SIA as
an ‘enforcement body’:
... the investigation of possible breaches of the anti-doping
rules by the CEO of Sport Integrity Australia is considered to be an
‘enforcement related activity’ and is integral to the efficient and effective
exercising of the CEO’s functions.[48]
The other provisions in Schedule 2 are simple
consequential amendments removing references to ASADA and the ASADA Act
in other Acts and substituting SIA and the Sport Integrity Australia Act.
Schedule
3—Contingent Amendments
The provisions of Part 1 of Schedule 3 will not
commence at all if Part 1 of Schedule 1 of the Australian
Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping
Capability) Bill 2019 commences before Schedule 1 to the Bill commences. If
the provisions of the other Bill do not commence on or before Schedule 1 of
the Bill, Part 1 of Schedule 3 will commence at the same time as Schedules
1 and 2.
The provisions of Part 2 of Schedule 3 will only commence
if Part 1 of Schedule 1 of the Australian
Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping
Capability) Bill 2019 commences before Schedule 1 of the Bill. If the
provisions of the other Bill commence on or before Schedule 1 of the
Bill, Part 2 of Schedule 3 will commence at the same time as Schedules
1 and 2.
Other provisions
Readability
of the Bill and Explanatory Memorandum could have been improved for users if
all the substitutions of ‘Sport Integrity Australia’ for ‘ASADA’ were set out
in a table.
Possible correction
for Section 3—Simplified outline of this Act
Proposed section 3 is a useful sketch of the scope
of the Bill. Unfortunately it contains a syntax error in the second sentence
which makes the meaning slightly ambiguous. The subject of the first sentence
is ‘This Act’ and the object is SIA. The second sentence begins with ‘It’,
which would normally refer to the subject of the previous sentence, ‘This Act’.
However, the context suggests that ‘It’ is intended to refer to the SIA.
Appendix A—Selected
recommendations of the Wood Review[49]
Those Wood Review recommendations relating to the NSIC that the Government has identified for
implementation in Stage 1 are printed in normal black font.
Those nominated in the Government
Response to be considered in Stage 2 are marked with * and are printed in bold blue.
Bold italic red indicates
a point where the Government Response
diverges from the Wood Review recommendation. (Most of the red
marks simply indicate that the Government will be implementing the
recommendation for or through SIA rather than ASADA). |
MANIPULATION OF SPORTING COMPETITIONS
1. That Australia become a party to the Council of Europe
Convention on the Manipulation of Sports Competitions (Macolin Convention),
allowing the enactment of national match-fixing criminal legislation,
supporting an effective global response to international sports integrity
matters, acknowledging the transnational nature of match-fixing and related
corruption in sport, and recognising the global quality of threats to the
integrity of Australian-based competitions.
A NATIONAL PLATFORM
11. That, whether or not Australia becomes a party to the Macolin
Convention, and initially independent, if necessary, of the establishment
of the proposed National Sports Integrity Commission, the Australian
Government, as a matter of urgency, formalise and expand the work of the Sports
Betting Integrity Unit by establishing a ‘National Platform’ type entity with
the powers and capabilities required to address the threat of match-fixing as
outlined in Article 13 of the Macolin Convention (including the national
regulation of sports wagering, administering the Australian Sports Wagering
Scheme, and for information and data sharing).
12. That, on the establishment of the proposed National
Sports Integrity Commission (NSIC), the functions, powers and capabilities of
the National Platform be subsumed within the NSIC, as part of the its broader
regulatory and law-enforcement function. The NSIC will then be identified as
Australia’s ‘National Platform’ for the purposes of satisfying Article 13 of
the Macolin Convention.
*13. That the National
Platform facilitate a Suspicious Activity Alert System (SAAS), enabling
real-time receipt and dissemination of alerts, collection of responses and
assessment of integrity risk, to allow timely and decisive action. Participation
in the SAAS is to become a condition of Sports Wagering Service Provider
status, with the National Platform to have the authority to nationally suspend
wagering markets where significant risk of match-fixing is identified.
*14. That a central
clearinghouse function be established within the National Platform to receive,
assess and disseminate data, information and intelligence from Sports Wagering
Service Providers (SWSPs) and Sports Controlling Bodies (SCBs), including:
- line-by-line transaction data and
account information from SWSPs (including for sports wagering and racing)
- all relevant player, support
personnel and other sport integrity related data (including as might be deemed
relevant from time to time) from SCBs.
*15. That provision of
relevant sports integrity related data, information and intelligence (including
the reporting of any suspicious activity in a timely manner) be a condition of SCB
and SWSP status.
16. That the National Platform have status as a law-enforcement
agency to receive, deal with and disseminate law enforcement and private
information.
ANTI-DOPING – REGULATION
17. That the Australian
Sports Anti-Doping Authority be retained as Australia’s National Anti-Doping
Organisation and that the current requirement for all National
Sporting Organisations (including sports with competitions only up to the
national level) to have anti-doping rules and policies that comply with the World
Anti-Doping Code also be retained.[50]
18. That the Australian
Sports Anti-Doping Authority’s regulatory
role and engagement with sports in relation to the audit and enforcement of
sport’s compliance with anti-doping rules and approved policies be enhanced by
establishing regulatory compliance powers exercisable by the proposed National
Sports Integrity Commission in collaboration with (and at the request of) the Australian Sports Anti-Doping Authority CEO.
19. That the introduction of regulatory amendments to the Australian
Sports Anti-Doping Authority Act 2006 (Cth) (ASADA Act) be
considered to provide for:
- extending
statutory protection against civil actions to cover National Sports
Organisations (NSOs) in their exercise of Anti-Doping Rule Violation (ADRV)
functions
- facilitating
better information sharing between ASADA
and NSOs through enhancing statutory protections over information provided to
an NSO by ASADA
- empowering the ASADA CEO to comment on current cases under broader
circumstances than currently permissible under s 68E of the ASADA Act,
including where misinformation has been published
- empowering the ASADA CEO to exercise discretion in respect of lower level
athletes to apply more flexible rules in accordance with guidelines to be
developed but maintaining compliance with the Code.
ANTI-DOPING EDUCATION AND OUTREACH
20. That the Australian
Sports Anti-Doping Authority and the sports sector should
increase their respective investments in anti-doping education, collaborating
to deliver more effective education and training packages with greater reach
below national-level athletes (with the benefit of the example provided by
United Kingdom’s Anti-Doping Education Delivery Network, World Anti-Doping
Agency (WADA) and other education programs established by other National
Anti-Doping Organisations). Education and training programs to focus on:
- information
on the testing process and allied rights of athletes
- the
need for values-based education.
ANTI-DOPING TESTING AND INVESTIGATIONS
21. That the Australian Government ensure that the Australian Sports Anti-Doping Authority is adequately resourced and financially
sustainable, enhancing its capacity to engage with sports and be an effective
and responsive regulator and National Anti-Doping Organisation.
23. That the Australian
Sports Anti-Doping Authority’s investigative
capability be enhanced by:
- establishing,
through collaboration with the sporting sector, guidelines for the conduct of
anti-doping investigations which clearly define the roles and responsibilities
of government agencies (including the Australian Sports Anti-Doping Authority
(ASADA) and the sporting sector (subject to the Australian Government
Investigations Standards)
- establishing
strong information and intelligence sharing links with law-enforcement agencies
and regulatory agencies, including with and through the proposed National
Sports Integrity Commission (NSIC) (with consideration being given to the
application of the Privacy Act 1988 (Cth) and any need for amendment, including
conferring law-enforcement status on ASADA and the NSIC)
- strengthening
ASADA’s disclosure notice regime by:
- excluding
the right to claim privilege against self-incrimination when answering a
question or providing information to ASADA, while providing, where an objection
or privileged is raised, appropriate protections against non-direct or
derivative use in any criminal prosecution
- ensuring
that sanctions for non-compliance with disclosure notices are appropriate
- establishing
whistleblower protections.
A NATIONAL SPORTS INTEGRITY COMMISSION
38. That the Australian Government establish a National
Sports Integrity Commission to cohesively draw together and develop existing
sports integrity capabilities, knowledge and expertise, and to nationally
coordinate all elements of the sports integrity threat response including
prevention, monitoring and detection, investigation and enforcement.
39. That the National Sports Integrity Commission be
identified as Australia’s National Platform for the purposes of the Macolin
Convention.
40. That the National Sports Integrity Commission have
three primary areas of focus:
- regulation
- monitoring,
intelligence and investigations
- policy
and program delivery (including education, outreach and development).
NATIONAL SPORTS INTEGRITY COMMISSION – REGULATION
*41. That the National
Sports Integrity Commission be responsible for overseeing and coordinating the
regulation of sports wagering in Australia, working in close collaboration with
state and territory gambling regulators, sports controlling bodies and wagering
service providers, as part of the proposed Australian Sports Wagering Scheme.
42. That the National Sports Integrity Commission (NSIC)
be authorised to deal with information captured by the Privacy Act 1988 (Cth),
and have the ability to collect and use ‘sensitive information’ about a person
without consent. The NSIC be designated as a law-enforcement agency to have the
confidence of international and Australian law-enforcement agencies as both a
receiver and provider of personal information, and material alleging
criminality.
NATIONAL SPORTS INTEGRITY COMMISSION – MONITORING,
INTELLIGENCE AND INVESTIGATIONS
*43. That a formal, ongoing
Sports Betting Integrity Unit (SBIU) be established within the National Sports
Integrity Commission (with functions transferred from the SBIU recently
established within the ACIC) to allow for the systematic receipt, assessment
and dissemination of information relating to suspicious betting activity, and
undertake an ongoing regulatory monitoring, compliance and enforcement
function.
*44. That a Joint
Intelligence and Investigations Unit (JIIU) be established in the National
Sports Integrity Commission, with dedicated representatives of state and
territory law-enforcement agencies, as well as relevant Commonwealth agencies
including the Australian Criminal Intelligence Commission, Australian Federal
Police, Australian Sports Anti-Doping Authority, and the Department of Home
Affairs. The JIIU is to be responsible for: intelligence collection and
analysis for a broad range of sports integrity issues; liaison with domestic
and international law-enforcement agencies and criminal intelligence
commissions; and referral services – to law enforcement in criminal matters,
and to sporting organisations for code of conduct issues.
*45. That a Strategic
Analysis Unit be established as part of the National Sports Integrity
Commission, and be responsible for conducting open-source threat identification
and analysis including: monitoring of illegal offshore wagering market framing;
conducting strategic and threat analyses and providing advice (including in
relation to sports integrity threat overviews); and determining a schedule of
authorised wagering contingencies.
46. That the National Sports Integrity Commission (NSIC)
work closely with the Australian Criminal Intelligence Commission (ACIC) and
that the ACIC be resourced to maintain a standing, advanced sports criminal
intelligence capability to: enable enhanced analysis and exploitation of NSIC
data and intelligence products; support the NSIC through advanced intelligence
capabilities; and proactively develop intelligence on serious organised
criminality linked to sport but outside the remit of the NSIC (e.g. money laundering
through Wagering Service Providers).
*47. That a whistleblower
scheme encompassing all sports integrity issues, and a related source
protection framework, be administered by the National Sports Integrity
Commission.
*48. That the National
Sports Integrity Commission work with major professional sports regarding
illicit drugs policies with a view to seeking access to results of sample
analysis for the purposes of integrating with intelligence and analysis
capabilities.
NATIONAL SPORTS INTEGRITY COMMISSION – POLICY AND PROGRAM
DELIVERY
49. That consideration be given to the National Sports
Integrity Commission becoming responsible for centrally coordinating sports
integrity policy functions previously executed by a number of different
organisations including the Australian Sports Commission, Good Sports Program
(through the Alcohol and Drug Foundation) and National Integrity of Sport Unit.
50. That the National Sports Integrity Commission be a
single point of contact for athletes, sporting organisations, Sports Wagering
Service Providers, and other stakeholders for matters relating to sports
integrity.
51. That the National Sports Integrity Commission provide
direct assistance to small and emerging sports in Australia that lack capacity
to deal with integrity issues.
52. That a single, easily identifiable education and
outreach platform be established within the National Sports Integrity
Commission (NSIC), dedicated to developing and coordinating education, training
and outreach resources and programs in collaboration with the Australian Sports
Anti-Doping Authority, Australian Sports Commission, sports (particularly
Coalition of Major Professional and Participation Sports integrity units) and
athletes, including athletes’ associations. Administration of existing
initiatives and forums, including the Australian Sports Integrity Network,
Jurisdictional Sports Integrity Network, Betting Regulators forum and Play by
the Rules, should be incorporated into the NSIC education and outreach
platform.
[1]. International
Covenant on Civil and Political Rights, done in New York on 16 December
1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13
November 1980; Art. 41 came into force for Australia on 28 January 1993). See
also comments of Joint Standing Committee on Foreign Affairs, Defence and Trade
(JSCFADT), Legal
foundations of religious freedom in Australia: interim report, Chapter
6, JSCFADT, Canberra, 2017.
[2]. Council
of Europe Convention on the Manipulation of Sports Competitions, (Macolin
Convention), opened for signature 18 September 2014, CETS No. 215,
entered into force 1 September 2019 (but not yet in force for Australia); Council
of Europe, ‘Chart
of signatures and ratifications of Treaty 215’, Council of Europe Treaty
Office website.
[3]. Explanatory
Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport
Integrity Australia) Bill 2019, p. 1.
[4]. Sport
Australia is the operating brand name of the Australian Sport Commission.
[5]. J
Wood, D Howman and R Murrihy, Report of the
Review of Australia’s Sports Integrity Arrangements (Wood Review),
report prepared for the Department of Health (DoH), Canberra, 2018, p. 174.
[6]. The
main discussion of the proposed body is in Chapter 6 of the Wood Review,
beginning at page 168.
[7]. DoH,
Safeguarding
the Integrity of Sport—the Government Response to the Wood Review (Government
Response), DoH, Canberra, 11 September 2018, p. 8.
[8]. Ibid.,
pp. 19, 24.
[9]. Ibid.,
pp. 10–25.
[10]. Ibid.,
pp. 10–20.
[11]. Macolin
Convention, op. cit.; Council of Europe, ‘Chart
of signatures and ratifications of Treaty 215’, op. cit.
[12]. Macolin
Convention, op. cit., Preamble and Article 1.
[13]. Sports
Conventions Division, Panorama—Convention
on the Manipulation of Sports Competitions – Macolin Convention (CETS n°215),
Directorate General of Democracy, Council of Europe, 23 October 2018, p. 11.
[14]. Sports
Conventions Division, Panorama, op. cit., p. 19.
[15]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 8, 2019, The Senate, 13
November 2019, pp. 10–11.
[16]. Ibid.,
p. 10.
[17]. D
Farrell (Shadow Minister for Sport), Sports
game plan a start but proof is in performance, media release,
1 August 2018, p. 2.
[18]. Australian
Labor Party, A
fair go for Australia, Australian Labor Party National Platform, 1 July
2018, p. 196, [354].
[19]. Australian
Greens, ‘Sport
and Physical Recreation’, Australian Greens website, policy endorsed
November 2017.
[20]. Wood
et al, Wood Review, op. cit., p. 174.
[21]. Australian
Olympic Committee (AOC), AOC
commends government response to the Wood Review, media release,
12 February 2019.
[22]. Ibid.
[23]. Explanatory
Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport
Integrity Australia) Bill 2019, p. 1.
[24]. Commonwealth
Games Australia, Integrity
initiatives welcomed by Commonwealth Games Australia, media release,
12 February 2019.
[25]. M
Speed, Submission
to Review Panel on Australia’s Sports Integrity Arrangements, The
Coalition of Major Professional and Participation Sports Inc. (COMPPS), 2
October 2017, p. 27.
[26]. Ibid.,
p. 11; P Sakkal, ‘Sports
spurn new national integrity body’, The Age,
16 February 2019, p. 2.
[27]. Wood
et al, Wood Review, op. cit., p. 175.
[28]. Exercise
and Sports Science Australia (ESSA), ‘Submission
to Review of Australia's Sports Integrity Arrangements - Developing a
Government response’, 30 August 2018, p. 3.
[29]. Explanatory
Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport
Integrity Australia) Bill 2019, p. 1.
[30]. The
Statement of Compatibility with Human Rights can be found at pages 2–4 of the Explanatory
Memorandum to the Bill.
[31]. Explanatory
Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport
Integrity Australia) Bill 2019, p. 2.
[32]. Ibid.,
p. 4.
[33]. Wood
et al, Wood Review, op. cit., p. 104.
[34]. Anti-Doping
Convention, done in Strasbourg, 16 November 1989, [1994] ATS 33
(entered into force for Australia 1 December 1994).
[35]. International
Convention Against Doping in Sport, done at Paris 19 October 2005, [2007]
ATS 10 (entered into force generally and for Australia 1 February 2007).
[36]. World
Anti-Doping Code 2015 with 2019 amendments.
[37]. See
paragraph 15(1)(b) of the Public Governance,
Performance and Accountability Act 2013.
[38]. Australian
Sports Anti-Doping Authority Act 2006 (ASADA Act), Part 7.
[39]. Explanatory
Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport
Integrity Australia) Bill 2019, p. 9.
[40]. The
Annual Report is also mentioned at section 74 of the ASADA Act.
[41]. Public Governance,
Performance and Accountability Act 2013, section 14.
[42]. Ibid.,
section 26.
[43]. C
Raymond, Statute
Update (Smaller Government) Bill 2017, Bills digest, 35,
2017–18, Parliamentary Library, Canberra, 12 October 2017, p. 18.
[44]. Explanatory
Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport
Integrity Australia) Bill 2019, p. 10.
[45]. Ibid.
[46]. See,
for example: sections 56CI and 56CM of the Competition and
Consumer Act 2010.
[47]. Explanatory
Memorandum, Australian Sports Anti-Doping Authority Amendment (Sport
Integrity Australia) Bill 2019, p. 14.
[48]. Ibid.
[49]. Relevant
information excerpted from: Wood et al, Wood Review,
op. cit.; DoH, Government
Response, op. cit.
[50]. The
Government agrees that all NSOs should have compliant anti-doping policies,
however it is of the view that the current functions of ASADA should be
incorporated into the NSIC to provide for a single, effective national body
responsible for all sports integrity matters and to provide a single point of
consultation and outreach for all stakeholders on sports integrity matters (see
Government Response op. cit., p. 12).
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