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Portfolio: Arts, Sport, the Environment, Tourism and Territories
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Purpose
To give legislative backing to the Australian Sports Drug Agency (ASDA) which will test certain sportspersons for certain performance enhancing drugs. ASDA will also develop and implement educational programs to discourage the use of drugs in sport and establish a Register of Defaulting Competitors
Background
In May 1988, the Senate Standing Committee on Environment, Recreation and the Arts received a reference from the Senate to inquire into the use by Australian sportspersons of performance enhancing drugs and the role played by Commonwealth agencies. The Committee presented two reports: an Interim Report, tabled in May 1988, which examined the extent of drug use in Australian sport, underlying reasons for that usage, issues relating to the supply of drugs and allegations about drug use at the Australian Institute of Sport; and a Second Report, tabled in May 1990, which examined professional sports and power sports, the national and international regulatory background, together with health and general concerns about the impact of drugs on society.
The main findings of the Committee were that drug taking in Australian sport is widespread and that drugs are being used at all levels of sport and by most age groups.
The principal recommendations of the Committee included:
*that the Government establish an independent Australian Sports Drug Commission (ASDC) to carry out all sports drug testing in Australia and that ASDC should be responsible for developing sports drug policies, conducting relevant research, selecting sports people for drug testing, collecting samples, dispatching samples to an International Olympic Committee (IOC) accredited laboratory, receiving results, conducting necessary investigations and carrying out liaison activities with law enforcement agencies, customs officials and health departments;
*that the ASDC should report the results of drug tests to the appropriate sporting federations for the imposition of penalties on athletes, coaches, doctors or officials who use or encourage performance enhancing drugs;
*that the ASDC carry out a minimum of 2000 tests a year;
*that the ASDC include in its Annual Report a list of the names of all athletes tested over the period to which the Report relates and that for each athlete results of each test be given in full;
*establish an independent tribunal to adjudicate on disputed drug tests and the penalties imposed by sporting federations on athletes testing positive for banned substances;
*that Commonwealth and State Ministers responsible for sport make it a precondition of any sporting organisation receiving government funding that it adopt standard penalties of a two year suspension from competition for a first offence and a life ban for any subsequent offence;
*develop a uniform licensing system for gymnasiums and health centres in Australia and make it a condition of a licence that anabolic steroids and other drugs not be available or used on the premises; and
*that an ongoing program of sports drug education be developed for schools, sporting and community groups 1.
Three months after the tabling of the Interim Report (August 1988), the then Minister announced the establishment of ASDA. Currently, ASDA operates as a preventative organisation, carrying out independent urine sampling and testing of sports people at all levels and educating the sporting and general community on the dangers of performance enhancing drugs. ASDA's present power to test professional athletes comes from individual contracts with professional sporting organisations, which direct ASDA to test specific players. ASDA currently has contracts with the NSW Rugby League, the Qld Rugby League, the Australian Football League and the National Basketball League. ASDA's collection procedures are the same as those laid down by the IOC Anti-doping Charter. Urine samples collected from athletes are sent, under security seal, to the Australian Government Analytical Laboratories in Sydney, where they are tested for a group of six drugs banned by the IOC. These drugs include anabolic steroids, growth hormones, diuretics, stimulants and beta blockers. The tests cost approximately $200 per sample. Athletes can also be tested for the presence of cannabis and cocaine if their sporting organisation chooses to include them in the test. Once ASDA has performed a test it is the sporting organisations responsibility to penalise the athlete. Individual athletes are unable to take legal action against ASDA because of its client based nature, although players can appeal against ASDA's procedures 2. In November 1989, the Minister advised the Chairperson of the Committee that ASDA would conduct 1000 tests in 1989-90 rising to 2000 in 1990-91 and that more than $4 million would be allocated to ASDA over the next four years. In January 1990, the Secretary of the Department of Arts, Sport, the Environment, Tourism and Territories (DASETT) advised the Chairperson of the Committee that DASETT was developing options for the establishment of ASDA as an independent authority and had initiated drafting of legislation for the purposes of putting legislation before the Parliament in the 1990 Autumn session 3.
In November 1990, the Government tabled its response to the recommendations of the Committee. The Government's responses to the Committee recommendations, as relate to ASDA, included:
*that a Bill to establish ASDA as a statutory authority with a legally and financially independent basis will be introduced into the Parliament in the Budget Session;
*that the Bill will empower ASDA to conduct research, select people for drug testing, collect samples, dispatch samples to an IOC accredited laboratory, receive results and report results to appropriate sporting federations and the Australian Sports Commission;
*that ASDA's functions not include the development of sports drug policies, liaising with law enforcement agencies, customs and health departments, adjudicate on penalties imposed by sporting federations and conducting investigations (note: the stated reasons for not giving ASDA these functions included: that the Government believes that these functions are more properly within the province of organisations other than ASDA; that drugs policy at the Federal level is better handled by the Australian Sports Commission, and liaison with other Federal, State and Territory authorities by DASETT; and that national sporting organisations also have a role to play in imposing penalties and giving athletes a fair hearing);
*that ASDA not include in its Annual Report the names of athletes tested and results recorded (note: the stated reason for not giving ASDA this function was that it would infringe on the Privacy Principles under the Privacy Act 1988);
*that the Bill will provide only those with a genuine need to know the results of positive drug tests will be informed - namely the athlete, their national sporting organisation, and the Australian Sports Commission, in those cases where Government funding is involved;
*that the Government accepts the recommendation of the Committee that ASDA carry out a minimum of 2000 tests a year and has provided funds in the 1990-91 Budget to enable this level to be achieved; and
*that the Government rejected the Committee's recommendation for the establishment of an independent tribunal to adjudicate on disputed drug tests and the penalties imposed by sporting federations on athletes testing positive for banned substances (note: the Government arguments for rejecting the Committee's recommendation included that mechanisms have been built into the proposed ASDA legislation, and are available through administrative law, for appeals against ASDA processes, and that sports will be required to abide by the Australian Sports Commission doping policy, which incorporates mandatory sanctions, a breach of which will automatically bring into question the continued Commonwealth funding of that sporting body) 4.
Main Provisions
`Competitor' is defined in clause 2 to include an Australian citizen, permanent resident, or a person who is present in Australia who:
*competes, or has been selected to compete, as an Australian representative in an international sporting event; or
*competes in an international sporting event held in Australia; or
*is part of a group of persons formed for selection to compete as representatives of Australia in an international sporting event; or
*competes in sporting activities, or participates in training for competition, and is receiving Commonwealth support, or has an arrangement with the Australian Sports Commission or the Commonwealth under which they will receive Commonwealth support; or
*has their name on the Register of Defaulting Competitors and as a consequence has been prevented from participating, or become ineligible to participate in sporting events or activities.
ASDA will be established as a corporation by clauses 6 and 7.
The objects of ASDA are contained in clause 8 and include to encourage the practice of sport free from the use of drugs; encourage the development of programs to educate the sporting community and the general community about the dangers of using drugs in sport; and encourage the establishment of a centralised drug sampling and testing program that exposes all competitors to sampling and drug testing, at short notice, at sporting events, during training and at any other time.
The functions and powers of ASDA are contained in clauses 9 and 10 and include to collect samples from competitors and to arrange for the testing of samples by accredited laboratories; develop and implement educational programs to discourage the use of drugs in sport; establish and maintain a Register of Defaulting Competitors; establish a national information service that identifies the problems associated with the misuse of drugs in sport and alternative ways of improving sports performance without the use of drugs; and charge fees for ASDA services, information and advice. ASDA is not to collect samples from competitors for any purpose other than testing samples to determine whether competitors have been using prohibited drugs or practices. ASDA's functions may be performed inside or outside Australia and ASDA may charge for its services.
Clause 11 provides that ASDA is to establish and maintain a Register of Defaulting Competitors (the Register) for recording the name of each competitor who fails, without reasonable excuse, to comply with a request of ASDA to give a sample, or returns a positive test result.
Clause 12 provides that a competitor will not be taken to have failed to comply with a request to give a sample unless ASDA has requested them to do so in a way which complies with the regulations. The regulations are to provide that where a competitor is asked by ASDA to provide a sample, the competitor is entitled to have a witness of their choice present to oversee the collection and that ASDA is to notify a competitor who has been asked to give a sample of the procedures for collection and testing of the sample, their rights to have a witness present to oversee the collection, the possible consequences of failing to comply with a request to provide a sample or returning a positive test result, and their right to make a submission to ASDA that they had a reasonable excuse for failing to comply with the request to provide a sample.
Where a competitor has failed to comply with a request to provide a sample, ASDA is to give the competitor a notice stating: that they have failed to comply; that they have two weeks in which to make submissions to ASDA that they had a reasonable excuse for failing to comply; of ASDA's obligation to enter the name of the competitor on the Register, notify each sporting organisation of which the competitor is a member or associated with, or where requested, the Minister. ASDA is not, until the end of the two week submission period, to decide that the competitor did not have a reasonable excuse for not complying with a request to provide a sample, or make a decision without considering any submission of the competitor. When ASDA decides whether a competitor had a reasonable excuse for failing to comply, ASDA is as soon as practicable to notify the competitor of its decision. If ASDA decides a competitor did not have reasonable excuse for failing to comply it is to include in its notice to the competitor reasons for its decision and that they may seek an AAT review of the decision (clause 13).
Clause 14 provides that where a competitor has failed to comply with a request to provide a sample and ASDA decides that the competitor did not have a reasonable excuse for not complying, ASDA is to enter on the Register, as soon as practicable, the competitor's name and any prescribed particulars. Where the AAT sets aside a decision of ASDA that a competitor did not have reasonable excuse for not complying with a request to provide a sample, ASDA is, as soon as practicable, to remove from the Register the entry that relates to the failure to comply.
Clause 15 provides that a competitor is not to be taken to have returned a positive test unless:
*ASDA has requested the competitor to provide the sample in the prescribed way;
*the taking, identification, attestation, transport and testing of the sample was carried out by an accredited laboratory; and
*ASDA was notified of the results of any tests of the sample and notified the competitor of those results, in the prescribed way.
The regulations are to provide for the procedures to be followed in taking samples from competitors, identification and attestation of samples, transport of samples, testing of samples, notification of results of testing to ASDA and competitors. In addition, the regulations are to provide that a competitor who has provided a sample will be entitled to be present at, or represented at, any subsequent testing of the sample, and ASDA is to notify each competitor who provides a sample of their entitlement to be present at, or represented at, any subsequent testing of the sample and the possible consequences of the sample returning a positive test result.
Clause 16 provides that where a competitor has returned a positive test result, ASDA is, as soon as practicable after being notified of the test result, to enter on the Register the competitor's name and any prescribed particulars. ASDA is not to enter on the Register a competitor's name or any prescribed particulars unless it has carried out prescribed checking procedures and not discovered any breach of regulations made for the purposes of clause 15 (see above).
As soon as practicable after entering a competitor's name on the Register, ASDA is to give written notice of the entry to the competitor, each sporting organisation of which the competitor is a member or associated with. Where the Australian Sports Commission is given a notice of the entry of a competitor's name of the Register, ASDA is to include in the notice a statement naming all the sporting organisations which ASDA has given notice of the entry. Where an entry has been made that a competitor did not have reasonable excuse for not complying with a request to provide a sample and that entry is removed under clause 14 (see above) or by order of the AAT, ASDA is, as soon as practicable, to give notice of that fact to each person and organisation to which notice of entry was given (clause 17).
The Minister may request ASDA to provide a written notice stating whether names of competitors specified in the Minister's request are on the Register. The Minister may also request, where competitors specified in the Minister's request are on the Register, the contents of the entry on those competitors (clause 18).
ASDA is to consist of a Chairperson, a Deputy Chairperson, a Chief Executive, and between 1 and 3 other members (clause 19).
The members of ASDA will be appointed by the Minister and the Minister is not to appoint a person as member unless satisfied that they have qualifications relevant to, or special experience or interest in, a field related to ASDA's functions. People over 65 are not to be appointed (clause 20).
ASDA is to prepare three year strategic plans which set out the way in which ASDA will perform its functions. The strategic plans will require Ministerial approval and are to be tabled in Parliament (clause 47 and 48).
ASDA is to prepare annual operational plans which set out the programs ASDA proposes to carry out and the resources ASDA proposes to allocate to each program. The Minister may direct ASDA to revise an operational plan where it is inconsistent with the strategic plan (clauses 50 and 51).
Clause 55 provides that the Chief Executive is to manage the affairs of ASDA subject to the directions of ASDA and in accordance with the policies determined by it.
Part 7 of the Bill (clauses 58-65) deals with finances. The Minister for Finance may give directions as to how much and when appropriated money is to be paid to ASDA (clause 58). ASDA money is to be spent only in paying for costs and obligations incurred in the performance of its functions and in payment of remuneration and allowances (clause 60). Ministerial approval will be required before ASDA enters into contracts exceeding $100 000 (clause 62). ASDA will be subject to the Audit Act 1901 (clause 63) and ASDA will have to keep trust funds in a separate trust account (clause 65).
Clause 66 provides that ASDA is to prepare and maintain a list of laboratories that the IOC recognises as accredited laboratories for testing for the use of drugs in sport. The laboratories may be situated in or outside Australia.
Clause 67 makes it an offence for certain people, including members and past members of the ASDA, employee's and past employee's of ASDA, the Australian Sports Commission and accredited laboratories, to disclose to any person any information about a person they have obtained in the
course of their duties or as a result of another person performing their duties under this Bill. The maximum penalty for a breach of this provision will be a term of imprisonment of two years. People
bound by the non-disclosure requirement of this clause will not be required to produce records or disclose information in any court except where it is necessary to do so for the purposes of this Bill.
The Minister may give directions to ASDA which ASDA is to comply with (clause 68).
Clause 72 provides members and employee's of ASDA with immunity from suit for acts done in good faith in the course of their duties.
References
1. Senate Standing Committee on Environment, Recreation and the Arts, Drugs in Sport, Interim Report, May 1989, pp. xxxii-xxxix.
Senate Standing Committee on Environment, Recreation and the Arts, Drugs in Sport, Second Report, May 1990, pp. xxi-xxxvi.
2. Canberra Times, 9 August 1990.
3. Senate Standing Committee on Environment, Recreation and the Arts, Drugs in Sport, Second Report, May 1990, pp. 16 and 17.
4. Government Response to the Recommendations of the Senate Standing Committee on Environment, Recreation and the Arts Inquiry into Drugs in Sport, November 1990, pp. 1-19.
Bills Digest Service 22 November 1990
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Commonwealth of Australia 1990
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Published by the Department of the Parliamentary Library, 1990.