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Community Affairs Legislation Committee - 17/10/2014 - Australian Sports Anti-Doping Authority Amendment Bill 2014

BURGESS, Mr Trevor, National Manager of Operations, Australian Sports Anti-Doping Authority

FAGAN, Ms Bronwyn, Director, Legal Services, Australian Sports Anti-Doping Authority

GODKIN, Mr Andrew, First Assistant Secretary, Office for Sport, Department of Health

LEARMONTH, Mr David, Deputy Secretary, Department of Health

McDEVITT, Mr Ben, AM, APM, Chief Executive Officer, Australian Sports Anti-Doping Authority

MORRIS, Mr Greg, Acting Assistant Secretary, Office for Sport, Department of Health

[11:06]

CHAIR: We formally welcome officers from the Australian Sports Anti-Doping Authority and the Department of Health. The Senate has resolved that an officer of a department of the Commonwealth or of a state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted.

The committee has received submission No. 7 from ASADA and submission No. 4 from the Department of Health. I understand that information on parliamentary privilege and the protection of witnesses has been provided to you. Is that correct?

Mr Learmonth : Yes, that is correct.

CHAIR: If you would like to make brief opening statements, I invite you to do so, and then we will move to questions.

Mr Learmonth : Thank you. If I may, I will just make a very brief one. Thank you for the opportunity to appear today on this matter. World antidoping efforts rely on an ongoing and close cooperation between government and sports, and the consistent application of antidoping rules and regulations that are enshrined in the World Anti-Doping Code. The primary purpose of the code is to protect the fundamental right of athletes to participate in doping-free sport and to detect, deter and prevent doping in sport.

In terms of the policy architecture here, Australia is a party to the UNESCO Convention against Doping in Sport and we are also a leader of the global antidoping sports movement. We have been since its inception. By enacting these amendments, Australia will meet its obligation to join the rest of the world in adopting internationally harmonised antidoping principles by 1 January 2015. The amendments in the bill follow extensive consideration by WADA and consultation with all members of the international antidoping community, including the Australian government. The consultation process involved over 300 separate submissions and dozens of stakeholder meetings.

The Australian government made submissions at each stage of the consultation process, identifying several areas in which the code might be enhanced to better address evolving doping threats. In developing the Australian government's submissions, consultations were held with Australia's national sporting organisations, athlete bodies and other relevant contributors to offer views on the operation of the code and to identify desired changes. The revised code and the bill to support its implementation in Australia reflect this exhaustive consultation.

To be clear, if the amendments in this bill are not enacted, Australia's antidoping arrangements will not reflect the revised World Anti-Doping Association code and we will be deemed by WADA as non-compliant by 1 January 2015. If that happens, we will fall out of step with the antidoping arrangements of our national sporting organisations, and these organisations are required to abide by the rules of the international sporting federation. We would be faced with different rules, sanctions, definitions and operations between ASADA and the national sporting organisations and further complications for the conduct of major international sporting events in Australia.

Members of the committee will be familiar with the key amendments being proposed in the bill. Most of the submissions, I think, to the committee have focused on the alleged impacts associated with the introduction of the prohibited association antidoping rule violation. I think there are some misconceptions there, which we would be pleased to address for the committee, but, clearly, history has shown, particularly recently, that sporting organisations have been susceptible to individuals who have sought to facilitate doping regimes while they themselves have remained outside the jurisdiction of the antidoping authorities. The new prohibited association antidoping rule violation specifically addresses the potential impact of such individuals and protects the clean athletes from them, but the violation applies only in very limited and sports related or professional circumstances.

ASADA works closely with its national sporting organisations to implement the code and the doping arrangements. Our national sporting organisations are currently updating their antidoping policies in anticipation of the legislative requirements, aligning the revised code from January. This includes the revised provision for sanctions in line with the revised code.

In summary, we believe that the bill strikes an appropriate balance between, on the one hand, giving effect to our obligations under the UNESCO convention and the World Anti-Doping Code and, on the other hand, meeting our obligation to ensure the rights of the clean athlete continue to be protected. I understand Mr McDevitt has a perspective from ASADA.

Mr McDevitt : Thank you for the opportunity to appear before the committee. Whilst my intention, obviously, is to be as open and honest as I can with the committee, you would be aware that our legislation and the WADA code restrict what I am able to say in relation to certain ongoing matters.

CHAIR: Can I interrupt you there. I did not make that point at the beginning of the hearing, but I think it has been broadly followed anyway. I do not think any of us are looking to interrogate ongoing investigations and I advise senators to be mindful of that in any questions.

Mr McDevitt : Thank you. Mr Learmonth has referred to the extensive consultation process that took place prior to the 2015 code being finalised. I point out that the current version of the code is actually the fourth published version of the 2015 code and there were over 50 different working drafts in the lead-up to that final version. Several changes to the language of the code were made to improve consistency with the legal opinion on code enforceability. That was provided by Judge Jean-Paul Costa, who is a former President of the European Court of Human Rights. Obviously, the feedback from stakeholders was used by WADA to help make the code clearer and more effective.

There are a couple of specific changes that I would like to refer to—firstly, the issue of increasing the periods of ineligibility. The amendments allow for longer periods of ineligibility to be applied for real cheats and more flexibility for sanctioning in certain circumstances. There was a real push by stakeholders for longer periods of ineligibility for intentional cheats as opposed to people who have breached the violations unintentionally. The code currently allows for periods of ineligibility of up to four years if aggravating circumstances can be established, but this has actually hardly ever been applied. An example is that, if an athlete can establish that a violation of presence, use or possession was not intentional, the period of ineligibility will not be four years.

There was also a stakeholder consensus that more flexibility in sanctioning should be permitted in certain circumstances where the athlete can demonstrate that he or she was not cheating. For example, where the athlete can establish no significant fault for an adverse analytical finding involving a contaminated product, the period of ineligibility may range from, at a minimum, a reprimand, to, at a maximum, two years. The window in which an athlete may accumulate three whereabouts failings, which is where there are failures to attend or there are missed tests, which will trigger an anti-doping rule violation, has been reduced from 18 months to 12 months.

The question on how the 2015 code impacts on human rights has been widely discussed. The code specifically looks at how the principles of proportionality and human rights should be considered and applied. There are many provisions within the code that have been amended to make sure that consideration of these principles are front and centre when the code is being implemented.

It is also noted that minors and a lower level athletes are given some additional concessions in the new code. For example, the definition of 'no significant fault' states that a minor need not establish how a prohibited substance entered his or her system to establish no significant fault.

Importantly, there are 10 anti-doping rule violations under the 2015 code. It is important to note that only two of those violations can actually be proven through presence of a banned product in either urine or blood. The really important thing here is: how seriously do we in Australia take our anti-doping efforts? We have relied previously very heavily on testing, but this is clearly a move internationally and nationally to adopt greater intelligence and investigational capabilities in order to be able to prove those other eight violations which simply cannot be proven merely through presence in urine or blood of a banned substance.

We still acknowledge that testing is an extremely important tool in the arsenal of a nationally anti-doping organisation, but we welcome the changes to the code that increase the importance of investigations and intelligence. The use of investigations and intelligence allows us to more effectively gather evidence to prove the majority of the anti-doping rule violations and also to better plan testing so that our tests may be planned in a smarter and more targeted way. The increased focus on investigations and intelligence and on the athletes at the elite end of the scale also encourages an increased focus on smarter testing and analysis choices.

The 2015 code requires the use of risk assessments when anti-doping organisations do their test distribution plans. The risk assessment will also enable a more effective selection of substances to be tested for. This means that funding can be better allocated and more efficiently used.

There is an incentive for athletes and athlete support personnel to provide information to enable the discovery of anti-doping rule violations, criminal offences or professional misconduct. This incentive is called substantial assistance and it allows for the suspension of up to 75 per cent of a period of ineligibility subject to certain conditions.

There has been some discussion about the statute of limitations being extended to 10 years from the current eight-year period. Recent events demonstrate that sometimes it takes a long time before sophisticated doping schemes can be uncovered. The Court of Arbitration for Sport takes into consideration the reasons for the delay of a matter. The increase to 10 years was certainly not intended to be oppressive or to enable the passage of time to prejudice the position of either the NADO or the athlete or athlete support person. The reality is that athletes who choose to dope can roll the dice on whether they will be able to remain undetected for a decade. We know what we are dealing with here are extremely sophisticated substances and extremely sophisticated screening methods and methods to avoid detection. We currently keep samples for eight years. Keeping the samples for 10 years will allow a better chance for technology to catch up and for us to catch cheats.

Importantly, the 2015 code has an improved ability to make athlete support personnel more accountable by ensuring that sports include those people into their policy's jurisdiction if they are participating in the activities of a sport as an athlete support person. There have been several high-profile cases in recent years of athlete support personnel engaging in behaviour that amounted to systemic cheating without those people being included in a sports anti-doping policy. This meant the athlete support personnel in question could have a major impact through unethical practices but sports were not able to sanction or ban them. These new measures are designed to ensure that that can never occur.

Prohibited association captures the athlete support personnel who have been involved in doping activities but are currently outside the jurisdiction of anti-doping authorities. This means it is an anti-doping rule violation for an athlete or other person to associate in a professional or sport related capacity with athlete support personnel who are currently ineligible and have been convicted in a criminal, disciplinary or professional proceeding for conduct that would constitute doping.

The reality here, in my view, is that this is a protective mechanism for athletes. We have many athletes who are naive and do not understand the reality that there are across the globe some sports scientists and sport support personnel who move around sports, plying their trade and their snake oil and so on. This is an opportunity to protect those athletes by notifying them about such persons and ensuring that they protect themselves.

My final comment is in relation to the satisfaction with ASADA in the way it does its work. Since 2010, ASADA has conducted annual surveys of athletes and sporting organisations. Since 2010, there has been consistently strong satisfaction and effectiveness ratings amongst athletes, support personnel, health professionals and sporting organisations. Since 2010, more than eight out of ten respondents to our annual survey said they were satisfied or very satisfied with our programs and services as well as our staff and customer service. In 2014, eight out of ten respondents found that ASADA was effective or very effective at deterring athletes and support personnel from using prohibited substances and methods in Australian sport. In 2014, more than seven out of ten respondents said ASADA's activities were effective or very effective at maximising doping detection.

CHAIR: Thank you very much for that statement. I want to ask a general question. It may have been touched on in your opening statement but not in any detail. You talked about the various aspects of how the legislation will work and how it might improve things, but I am interested in, from ASADA's perspective, your ability to do your job to try to prevent doping in sport, to protect athletes and to ensure we have integrity in sport when it comes to issues around doping. How will this legislation, in broad terms, make it easier for you to do your job and fulfil your obligations?

Mr McDevitt : I think it will make ASADA's job quite a bit easier on a number of fronts. I mentioned the example of one being the extension of the statute of limitations from eight years to 10 years.

It is similar to the sorts of issues that we see with hackers in the high-tech crime world; there is a constant battle between those who hack and those who try to protect systems. We see the same thing in the world of piracy, where there is a constant battle between those who seek to pirate and those who seek to protect copyright. We see exactly the same thing in the doping world—lots of people producing thousands of new substances which are going onto the licit or illicit markets each year; smarter, more sophisticated ways to avoid doping and to screen so that tests do not pick it up. I am extremely pleased that we will now keep the samples for 10 years. We will now have samples for 10 years, and people who cheat take a significant gamble. That is one element that I am very pleased about. Another element that I am very pleased about—

CHAIR: Just on that, that effectively allows technology to catch up in some cases. There are some things that are very difficult to screen for and we cannot necessarily detect, but in eight or 10 years time potentially we can. This gives us that extra ability to use technology as it becomes available.

Mr McDevitt : That is absolutely correct. We have seen, just in the last couple of years, some new tests developed, which are now detecting positive findings in urine samples which previously had been deemed as being clear because the test was not sophisticated enough to pick up, for example, metabolites of certain substances which are broken down in the body but are still present in the urine. More sophisticated testing can pick those up. I am very pleased about that. If you think about DNA testing in the eighties, it was very difficult. Now, decades later, you see case after case being solved through DNA because the science has caught up.

The second point that I think is really good for ASADA is the move towards intelligence and information sharing and an investigations focus. Let's face it: testing detects, on average, I think, between one and two per cent. We had the head of WADA recently say that he thought the rate of doping was as high as 25 per cent, which is quite extraordinary. So there is a significant gap there.

We also have eight violations which, as I said in the opening, simply cannot be proven. So we have to have information sharing. We have to have intelligence. We have to have tools beyond simply collecting urine and blood samples if we are really serious about dealing with doping in this country. That is another area where I think we will have significant benefit. There has been quite a bit of discussion about the prohibited association.

CHAIR: We might move to some questioning on that now, if you like, because that is one of the big issues that has been raised.

Senator MOORE: Mr McDevitt was talking about ASADA and the issues around resourcing.

CHAIR: We will come to the issues one by one. There is a range of issues and we have had a bit of an overview. I will move to the prohibited association issue. There will be questions, I think, from across the committee on that.

People like the Australian Athletes' Alliance, the Law Institute of Victoria and others have raised concerns about how far this might go, effectively. Let's deal with one of the issues that was raised about someone who has a minor conviction for some form of recreational drug use. What will be the restrictions on them? I am interested in the department or ASADA explaining to us how this piece of legislation will work when it comes to that particular point.

Mr Godkin : It might be useful if we go through some of the key elements of the prohibited association ADRV. That is enshrined in article 210 of the code. That bears close reading.

Senator DI NATALE: Are you walking about the WADA code?

Mr Godkin : I am talking about the World Anti-Doping Code; yes. There is some misunderstanding around some of these provisions. Firstly, the association which might be the subject of a prohibition must be in a professional sports related capacity. So there are limitations around that prohibition to start off with. It is not meant to interfere with the day-to-day interactions between individuals outside of those particular provisions. It is targeted at athlete support personnel, and that is quite a significant point because, when we start talking about antidoping-rule violations, they are antidoping-rule violations relevant to athlete support personnel. That is not all of the antidoping-rule violations in the new code; there are 10 of them.

The athlete must be able to reasonably avoid the association, and in submissions to the antidoping organisation, which is probably ASADA in this case, they will be able to identify why they cannot reasonably avoid that association. The athlete support person must have committed an antidoping-rule violation, or have been found in a criminal, professional or disciplinary hearing to have engaged in conduct that would have constituted an antidoping-rule violation. The critical point there is that, for athlete support personnel, possession, for example, is not an antidoping-rule violation. As to examples that we have heard—for example, recreational use of marijuana: under the ADRVs, that is not currently a rule violation for athlete support personnel.

Senator DI NATALE: But conviction for use is, isn't it?

Mr Godkin : No, because athlete support personnel can now, for example, take cannabis, and that is not an antidoping-rule violation, unless—and there is one condition here—you can demonstrate that that is in connection with the athlete. For example, if somebody had cannabis at an event for provision to an athlete, you might be able to make that case. So recreational use, individually, by athlete support personnel would generally not be captured. I might just add that we have tested some of the examples that have been used in some of the submissions—not only ourselves but with WADA—and they agree with our position on this.

Senator DI NATALE: But can I just—sorry, do you mind if we interrupt? It is specifically on that point.

CHAIR: No. We will go back to it. I want to hear about these things.

Senator DI NATALE: We have just got to clarify that point: that is if you are engaged in an activity when you are part of the support team—so you are saying that, if you are convicted for smoking cannabis and you are part of a support team, that is not a violation. What if you are an athlete, you have been found guilty of a breach of the code, you are no longer playing the sport and then you want to engage as a support person? Doesn't a different set of rules apply, because you are under a different set of obligations?

Mr Godkin : If I understand, if you are an athlete who has been subject to an antidoping-rule violation then you are banned from sport. I should also say, as to the prohibition for people who are currently captured by antidoping organisation rules: this already exists. If you are currently a coach subject to antidoping organisation rules and you have been found guilty of an ADRV, you cannot compete in sport for the period of ineligibility.

Senator DI NATALE: 'Compete'?

Mr Godkin : Sorry, you cannot participate in sport.

Senator DI NATALE: You cannot participate, for the period under which you are banned?

Mr Godkin : Correct.

Senator DI NATALE: Beyond that, would the fact that you have got a past conviction create a problem in being somebody who is involved as a support person?

Mr Godkin : The key here is that, as to the conviction or the disciplinary process et cetera, it must be found to constitute an ADRV if that person had been subject to the rules of a sport. What we are dealing with here primarily is people who are outside the jurisdictions of sport, so we are trying to curb their influence by saying that athletes themselves cannot associate with those people under those prescribed arrangements.

CHAIR: How does that work with the timing? That is one thing I am not clear about. You are talking about two different classes of people here: those who are currently captured, and then you are seeking to capture a different class, a broader class you want captured, but you cannot impose sanctions as such on that person because you do not have the ability to do so—

Mr Godkin : That is right.

CHAIR: Therefore, you talk about things like their being convicted of, say, a drug offence. How long does that last? In the case of those who are currently captured, as I understand it—and I may be wrong—it applies for the period of the suspension.

Mr Godkin : That is right.

CHAIR: So, once that suspension is served—say someone serves two years—they can presumably still interact with athletes, and coach and do all those sort of things.

Mr Godkin : That is right.

CHAIR: With the person who is now outside, what are the time parameters, given that you are not imposing the sanction as such?

Mr Godkin : That is also identified in 210, and that the six years or longer of the suspension, or whatever the outcome of the particular process was, is identified in the act. So it is the longer of those periods.

CHAIR: Six years or longer?

Mr Godkin : But, to be clear, this is six years in terms of what they are calling the disqualifying status for that person. Because they are beyond the reach of antidoping organisations, you cannot actually make them ineligible, if you like. All you can do is to identify them as disqualified, and then take action against athletes who may continue to associate with them in a sports related or professional capacity.

CHAIR: This is primarily aimed at stopping the dodgy doctors and others who hang around on the edges and who you cannot regulate. So you are regulating those in the system to prevent them from associating with those people.

Mr Godkin : That is absolutely right. If this goes right through to a conclusion for people who continue to associate, the penalty is between one to two years, depending on the circumstances.

Senator DI NATALE: Many of the submissions focus on the point where you say: 'If you have been convicted of a crime that otherwise would constitute a doping violation'. Just to explain that: if you are a support personnel, for example, someone who is a sports scientist, you would be a prohibited person if your crime were the administration of a banned substance?

Mr Godkin : That is right. It is an ADRV that would be captured.

Senator DI NATALE: What if you have administered that substance in a different setting? It might be a banned substance. How do we make that distinction?

Mr Godkin : Do you mean in a different setting to—

Senator DI NATALE: I do not understand what that means. What are you trying to capture with that specific clause—'convicted of a crime that otherwise would constitute a doping violation'?

Mr Godkin : What it is saying is that for someone to have disqualifying status they have to have been convicted in a disciplinary or other professional hearing of something that would have constituted an antidoping rule violation as an athlete support person. Out of the current eight and the new 10 antidoping rule violations, some of those do not apply to athlete support persons—for example, we do not test athlete support persons. So you cannot have 'presence violations' for an athlete support person.

Senator DI NATALE: So this is specifically during their tenure as an athlete support person? I think the bill is ambiguous, which is why we have had this sort of feedback. You are saying that it only applies if they are convicted of a crime that was incurred while they were participating in sport as a support person?

Mr Godkin : While they were providing support as a support person to an athlete, yes. But that may be completely outside of the locus of an antidoping organisation's reach. It might be a physiotherapist somewhere who is not affiliated formally with sports but who is providing support to an athlete who is subject to the code.

Senator DI NATALE: What about the professional misconduct? It is one thing to have been convicted of a crime for something; it is another thing to be sanctioned by a professional body. It is very broad. What does 'sanction for professional misconduct' actually mean?

Mr Godkin : The key here again is professional misconduct which would otherwise have been an antidoping rule violation under the violations in the code. If it is not captured under those violations then the prohibited association does not apply. I will give you an example. If an athlete support person outside of the remit of an ADO were involved in the trafficking of prohibited substances and were found by whatever professional body they had to be guilty or were convicted of that offence against their particular standards—

Senator DI NATALE: Or 'sanction'—whatever that sanctions is.

Mr Godkin : that is right—that would constitute an ADRV and that person would get prohibited status. What that means then is that the ADO would say to athletes, 'You cannot associate with that person in a sports related or professional capacity.' It is not saying that you cannot associate with the person; it is just within that criteria.

Senator DI NATALE: What if there is an investigation because someone suspects a breach, someone reports a professional—let's say a sports scientist. They have got suspicions about them. They are sanctioned by their accrediting body—you have used the example of physiotherapy—because they are not keeping records appropriately. So they receive a professional sanction, but the case of having provided someone with a banned substance is not proven—there is speculation—but they receive a sanction. You are saying that, under this clause, they could still be classified as a prohibited person, even though the offence is not proven?

Mr Godkin : No, I am not saying that. I am saying that if they have been identified as conducting activities that would have constituted an antidoping rule violation and if they were captured by the rules of sports or an antidoping organisation.

Senator DI NATALE: But that does not appear to be the way it is written. It specifically talks about whether they have been sanctioned for professional misconduct. The reason we have got the feedback from the Commercial Bar Association and the Law Institute is that it appears to be very open.

Mr Learmonth : The way to look at those things is that they are processes which are used to establish that certain things have happened. That certain things have happened—whether it be a criminal proceeding, a professional disciplinary proceeding or whatever it may be—is not of itself enough to trigger these proceedings. The finding against the person in one of those contexts has to be a finding that, if they had done that action within the jurisdiction of the WADA code, it would be a rule violation. That they may have been professionally sanctioned or criminally prosecuted is neither here nor there except insofar as it brings to light that that person did certain things. If those things were done in the jurisdiction of the WADA code and were then found to be doping violations, then we are talking, then we are caught. That there has been a finding of some sort is of itself neither here nor there.

Senator DI NATALE: I accept that that is the intent. I suppose the question is whether the legislation reflects that intent. There is obviously some confusion or debate about whether that happens and whether the drafting needs to be tightened.

Mr Godkin : There is no confusion here. Section 210(2) is quite clear. It says 'if the person has been convicted or found in a criminal, disciplinary or professional proceeding to have engaged in conduct which would have constituted a violation of antidoping rules if code compliant rules had been applicable to such person'. That is in section 210(2) of the code; it is under the ADRVs. Under the code, we have no option but to completely replicate those within our own regulations. That is what the regulations will state.

CHAIR: Just to be clear on this: you are talking about an objective finding of fact in some professional body, court of law or tribunal; it is not an allegation; there has been some finding by some competent body against the person. In that case, ASADA would have to make a judgement that that in fact would have constituted a breach of the WADA code, and that then engages the prohibited association test. Is that broadly the flavour of it?

Mr Godkin : That is correct. I should add that that person has the opportunity to explain to, in this case, ASADA why those criteria do not apply to that person. I might also say that the athlete also has the opportunity to submit as to why the relationship does not fulfil the criteria.

CHAIR: Is there any formal process around that, or is ASADA simply looking at the finding and saying it clearly fits within the code?

Mr Learmonth : It depends on any other possible violation. The athlete in question, as Mr Godkin said, is given an opportunity to explain and to make representations. The person who is the subject of interest—that is, the person who is found to have done a certain thing—is also afforded that opportunity. The CEO, in light of all circumstances, will form a view; and the Doping Rule Violation Panel, as in any other rule violation, will also consider the matter.

Mr McDevitt : My sense is that, in reality, this particular violation would be used in a very judicious and sparing manner. There are checks and balances. Certainly for me, this is totally about the protection of the athlete from those who might be out there seeking to move among sports and ply their wares. Perhaps in the wording we do not have the clarity that you might seek; but we do have checks and balances, we do have a lot of discretion in terms of this particular violation. As the CEO, I would see this as something that would be used very judiciously and sparingly.

CHAIR: Two questions flow from that. The first question, which was put by another witness—I forget who it was—is: how much does the WADA code influence the discretions? Is there guidance in the WADA code? Are you able to take guidance from things like the WADA code in matters of fine interpretation as to what is in and what is out?

Mr Learmonth : Absolutely, and we do exactly that on a very regular basis.

CHAIR: Is it the intention that the regulations would spell some of these things out? We often have broad-brush things in the legislation. Would the regs spell out some of the guidance around these things?

Mr Godkin : Yes, and they would absolutely replicate the ADRVs that are in the code.

Senator MOORE: When are the regulations due to be released? Are they being drawn up now? I commonly make the point when we have an act and regulations that the regulations have the detail but we do not have them in front of us.

Mr Godkin : The regulations are currently being drafted. There is a lot of work going into that now. Some of the code changes will have to be reflected in the act and some of them will be reflected in the regulations.

Senator MOORE: So subsection 14(3) of the act is where this is put into the act and then the regulations that apply to that would I hope clearly spell out how it is going to operate in practice. Are the regulations disallowable instruments?

CHAIR: They are regulations, so that obviously would be.

Senator MOORE: I just want to have it clear on the record that they would be subject to parliamentary scrutiny.

Ms Fagan : Part 3 of schedule 1—'Prohibited association'—refers specifically to article 2.10.1 and 2.10.2. That might help provide a bit of clarity. You asked before about how much guidance we get from WADA. When we are prosecuting these matters, the WADA code is our bible. We speak to WADA quite often and get guidance from them. So I understand that the legislation may not be clear to someone who does not deal it all the time but we are probably a little more familiar with it.

CHAIR: So the schedule incorporates the WADA code?

Ms Fagan : Yes, absolutely.

Senator MOORE: Is it subject to appeal? This process that people are going through is the standard appeal process that is picked up further in this act about the extended appeal process within ASADA. Is this element appellable?

Mr Learmonth : It is amenable to the same appeal rights as antidoping violations—the Federal Court, the AAT and Court of Arbitration in Sport.

Senator MOORE: Good. It has not come out before. I want to get it on record that there is a process. The regulations will public. They will be disallowable—so they will come back to parliament if there is concern about the regulations not meeting the process. And, once it is in place, any element of this decision-making process down the line will be appellable through the standard process?

Mr McDevitt : That is correct.

Senator MOORE: Good.

Mr Learmonth : Also, in terms of guidance, as we were saying earlier it is not just the regs; there is the WADA code, which is incorporated, and there is a lot of guidance there which can already be referred to. The chair was asking about examples of how to have a CEO form judgements about whether or not to apply this power. For example, the code provides examples of what might be considered as a professional sports related association as opposed to a familial or personal association. It lists a variety of things—training, strategy, techniques, nutrition, therapy, treatment, prescriptions, providing bodily products for analysis, allowing the banned sportsperson to serve as an agent or a representative. It gives clear guidance as to the things the CEO should consider in forming their views.

Senator DI NATALE: Going back to the issue of professional misconduct, I accept that now and understand a little better about what the intention is. But the secondary concern that flows from that is that a professional sanction requires a lower burden of proof; it can be a more ad hoc process and so on. On that basis, an athlete can be subject to a breach because they are associating with a prohibited person who has only been listed as a prohibited person because there is a very low bar in terms of being professionally sanctioned. It is very different from a criminal offence—I think that is in the first point—or banned from sport on the basis of a proven violation. That concern has been raised. I am interested in your response.

Ms Fagan : I suppose the answer to that is that the person still needs to satisfy our requirements to have committed an antidoping-rule violation. I wish it was that easy sometimes to prove an antidoping-rule violation but it is not. We have to satisfy every single element. So regardless of whether the bar is low, we still have our own standards internally and through the independent hearing bodies. The athlete as we have just discussed, still has the right to appeal. So we would certainly be required, potentially at CAS, to prove the violation.

Senator DI NATALE: That is the athlete, because of the association. Going back a step, the person who is the support person has been prohibited because they have been sanctioned by a professional body.

Ms Fagan : That is right.

Senator DI NATALE: Which can be a pretty variable process, having seen the way some professional health organisations deal with these things. So you are relying on that sanction?

Ms Fagan : No. In order to find the violation for the athlete we would have to show that the support person, who was not covered by an antidoping policy, had committed all of the elements of the antidoping-rule violations. For example, you mentioned before a physiotherapist or somebody interjecting.

Senator DI NATALE: Yes.

Ms Fagan : We would still have to prove that that injection was of an athlete who was registered at the time because that is one of the elements of the offence. So in order to find the offence for the athlete, we would have to satisfy all the other elements which the support person had—

Senator DI NATALE: And what about to ban them? Do you need to have the same level of proof or do you just do it on the basis of the sanction?

Ms Fagan : In order to ban the athlete?

Senator DI NATALE: In order to make them a prohibited person, do you have to go through that same process?

Ms Fagan : I would imagine that we would, yes. Certainly that would be our intention.

Senator DI NATALE: That is pretty important. If you are basically going to make a finding that a person is a prohibited person, what is the burden of proof that is required? Is it just that they have been sanctioned? If you look at the case and think, 'This guy looks a bit dodgy. They've got this sanction. We're going to make them a prohibited person,' or do you go through the process you have just described in proving the violation? There are two steps to that. Does the first step still have that high bar?

Ms Fagan : Certainly. This is where we are grateful that there is an increased focus on intelligence and investigations. We would need to be able to show that that person had satisfied all of the elements of the offence in order for them to have been found to commit the criminal offence or the professional misconduct that would have been an antidoping-rule violation. As Mr Learmonth mentioned before, we are trying to catch athlete support persons who are not under our jurisdiction but are behaving in a manner which would mean—they would be under our jurisdiction but for the fact that they are not tied to a policy. So we are still looking at their behaviour and ensuring that they have satisfied all of the elements of that particular antidoping rule violation.

Senator DI NATALE: I think I have done enough with that, thank you.

Senator MOORE: I have a timing question. In terms of the regulations being brought forward, will those regulations have to pass the parliament before we meet our requirements under the WADA process?

Mr Godkin : They need to be enacted by 1 January 2015—

Senator MOORE: So they are regulations to be enacted as well as the core legislation?

Mr Godkin : for us to be compliant with the expectation that the code will be applied by them.

Senator DI NATALE: There is just one last question. The issue of the family member: why is that in there?

Mr Godkin : I think it may have come in because the definitions in the code of 'athlete support personnel’ show it can be a family member fulfilling the role of an athlete support person. For example, if a family member was the coach of an athlete, a son or daughter—

Senator DI NATALE: Say a tennis coach?

Mr Godkin : Yes and, for example, if they were registered as a coach and subject to the sports rules and the antidoping rules, then if they committed a violation, they would be sanctioned as per the normal arrangement and they would be banned from sport. It does not mean they cannot associate. If they are outside of the antidoping organisation and they were found to be guilty of some sort of an offence which would have constituted an ADRV, they can be given disqualified status, but the actual point of operation is that the athlete cannot associate with that person for sports-related or professional reasons.

Senator DI NATALE: What about driving them to the footy game?

Mr Godkin : My understanding is that 'sports related and professional reasons' has been specifically injected into the code to distinguish that from normal day-to-day interactions. You could probably have an argument as to whether housing and feeding somebody is preparation for sport or not.

Senator DI NATALE: Providing them with a nutritionally balanced diet.

Mr Learmonth : But again, the code provides examples and guidance on what is to be considered professionally related or sports related and it is things like obtaining training strategy technique, nutritional medical advice, therapy treatment or prescriptions, bodily products for analysis—

Senator DI NATALE: You mentioned nutrition. Is that not providing someone with a meal?

Mr Learmonth : Nutritional medical advice.

Senator DI NATALE: Advice, okay.

Mr Learmonth : Like a dietician.

CHAIR: We will move on to some other topics—there are a number. Concerning the issue raised—and this was raised by the Athletes Alliance—on the increased penalties despite no significant fault, I think, Mr McDevitt, you touched on penalties. I know there are a number of changes in penalties here and perhaps some more flexibility, but is there a concern that someone can have no significant fault yet still incur a pretty substantial penalty?

Mr McDevitt : My understanding is that for somebody to have a claim of no significant fault in effect means that the doping has been unintentional. To that extent, the start point would remain at a two-year sanction as opposed to the four-year sanction.

Mr Learmonth : So the range, if it is no significant fault, would be zero—that is, a reprimand up to two years.

CHAIR: That is currently the case? What is the current case?

Mr McDevitt : The current is two years with an opportunity, if there are aggravating circumstances, for that to go to four years. What we will have now is for intentional doping a start point of four years as opposed to—

CHAIR: But where there is no significant fault, is there a change, and if so, what is that change under this proposed legislation?

Ms Fagan : I suppose the changes under the legislation—it can get quite technical. It splits it into whether it was a specified substance or non-specified substance. But fundamentally, the principle is basically the same. As Mr McDevitt mentioned before, if there are aggravated circumstances, you currently have the ability to increase the sanction, but it can be quite difficult without significant resources to prove those aggravated circumstances. The code has taken that into account and put it at four, but you can work backwards.

CHAIR: But that is penalties broadly. That is for intentional doping, is it not?

Ms Fagan : Yes. The new code also looks at sabotage and contamination; there are situations where athletes have done everything possible, but there was a banned substance, whatever it was, a supplement or whatever, that they took that was not listed on the label. The new code takes that into account. It gives the athlete the ability to prove that, and the onus depends on whether it is a specified or non-specified substance. Fundamentally, the principle has not changed. The athlete has the ability to reduce their sanction if they can establish no significant fault or no fault.

CHAIR: In the case of where you establish no significant fault, is there a maximum now? Is that two years now? I am just trying to get clarification on this point.

Ms Fagan : This is one of the things with the new code. The current code has quite a complicated table for working out sanctions, with aggravated circumstances and subsequent violations and so on. The current code has actually reduced that and made it quite a lot simpler. You can reduce it quite significantly, effectively, from two years. To establish that there was no significant fault is quite a high bar to reach, but it is possible in some circumstances for that to happen. The new code talks about sabotage, which is rare and very hard to establish, but it is a possibility that is being considered.

CHAIR: So there is no significant change on that particular point but you are talking about four years rather than two as the starting point now.

Ms Fagan : Four years, depending on whether it is specified or non-specified and what the circumstances are. Fundamentally the principle is the same, but it has basically been streamlined.

Senator DI NATALE: The principle might be the same, but isn't the penalty different? Can I read a quote to you from one of the submissions. 'Currently under the wider code the minimum sanction for an athlete who ingests a non-specified substance through no significant fault of his or her own is a one-year suspension—that is, 50 per cent of the otherwise applicable sanction of two years.' Under the new code that effectively doubles to two years—that is, you get that 50 per cent sanction based on the new four-year penalty. Is that accurate?

Ms Fagan : That is accurate, but there are always other circumstances in any case.

Senator DI NATALE: Please explain this to me; I am trying to learn. If there is no significant fault and if this is a case where a doctor has prescribed a medication that they thought was not on the banned list and it is, why should the athlete receive a harsher penalty than they are currently getting at the moment—which, at one year, already seems pretty harsh.

Ms Fagan : As a doctor also, Senator, you would understand the differences between non-specified and specified substances. It is a lot harder to accidentally take a non-specified substance, and that is why it is not on the specified substances list. We have strict liability: you are responsible for what is in your body. Olympic athletes and a lot of professional athletes, and even amateur athletes, understand that they are responsible for what goes into their systems. ASADA provides services—

Senator DI NATALE: But if you are seeing a doctor who is a sports physician, why would we increase the penalty on the athlete? It seems to me that at the core of this we have athletes who are following the advice of doctors, highly trained sports professionals. The current system is already pretty harsh. We have had the example of the soccer player whose career was effectively ended and then the substance was no longer on the list, and now we are looking at increasing that penalty from one year to two years. It seems we are catching the wrong people.

Ms Fagan : That raises issues of information sharing as well. If there is a qualified sports doctor who is holding himself or herself up to be qualified to give advice and he or she prescribes to an athlete a substance that is on the banned list which is publicly available, that is a concern in itself.

Senator DI NATALE: We often have this discussion and we think of high-profile Olympic athletes but, let us face it, most people who participate in sport are participating at second and third tier levels. They might go and see their GP. Those people are ultimately not doing anything. We all want to catch drug cheats, but why would we increase the penalty for someone in that situation rather than just saying, 'Look, we are going after the wrong people.' I do not understand why we are targeting that group.

Mr Godkin : Firstly, we are not talking about therapeutic use. If a physician prescribed a banned drug for legitimate medical reasons, the athlete could obtain a therapeutic use exemption.

Senator DI NATALE: That is only if they know it is banned.

Mr Godkin : The obligation is on the athlete not to ingest anything which is banned.

Senator DI NATALE: I accept that; I accept strict liability. I just think it is silly that we are ending an athlete's career after effectively giving them a two-year ban now, going up from one year, on the basis of them not being a drug cheat but making a simple mistake.

Mr Godkin : To address the issue you raised, the code is primarily targeted at international-level and national-level athletes. It does also incorporate other athletes, but there are provisions for those lower-tier athletes, as you put it, to get retroactive TUEs under certain circumstances. So it is not trying to catch people out. It is trying to get intentional doping cheats. It is not trying to get somebody who took for legitimate reasons something prescribed.

Senator DI NATALE: But they are caught up in it.

Mr Godkin : They are caught up in it but they can get a retroactive therapeutic use exemption, which means they are not going to be found guilty of an ADRV in that circumstance.

Senator DI NATALE: We have had examples of people who have been caught up in it, and I suppose the point here is why we are increasing the penalty on those people. If the aim is to get intentional doping out of sport, how does this do that?

Mr Godkin : Are we talking about national-level and international-level athletes here, or the lower tiers?

Senator DI NATALE: In some cases we may be.

Mr Godkin : If they are part of the registered testing pool, for example, then it comes with those obligations. The code does promote strict liability in that instance.

Senator DI NATALE: Mr McDevitt, do you think that is a sensible way of trying to achieve what you are trying to achieve, which is to catch the people who are doing this systematically and deliberately?

Mr McDevitt : I think you have to consider whether or not we are talking about an intentional cheat or somebody who unintentionally has ingested or injected some banned substance. For intentional cheats, in all of the consultations and discussion worldwide that led to the changes to the code there was a very clear push and demand for higher level sanctions for intentional cheats. So we then move from the two-year start point to the four-year start point.

In the circumstances you are talking about in which somebody has been administered a substance or a medication that contains something that was banned, they can make their case and claim a therapeutic use exemption, and that could be applied retrospectively. I am not worried about this. I think this is targeted at intentional cheats. With people for whom something has happened unintentionally I think the ultimate landing point will probably be pretty consistent with where it is now.

CHAIR: There are two or three more issues to cover so we might move to a new issue. One issue that has been put forward, and this is a broader point that has been made by the Athletes' Alliance, is that of collective bargaining being part of the answer to regulation to some degree. I am interested in your views, Mr McDevitt, as to whether you see that as a potentially appropriate solution. It has been put to us that sports should be able to more or less negotiate with their athletes and work out reasonable processes and then follow those processes. I am not trying to verbal anyone, but I think that was broadly the position that was put to us. I would be interested in your views on the desirability or otherwise of that.

Mr McDevitt : Are we talking about sports looking after sports?

CHAIR: To some degree. I think that was the broad thrust. I do not want to verbal anyone, but I think broadly there was a feeling that what works for the Olympics and what works for Olympic athletes does not necessarily translate to some of the professional codes.

Mr McDevitt : In the cycling review, ex-justice Wood made it clear in his recommendations that in his view most sports would not have the capability nor the motivation to actually take this on themselves. What we have at the moment is, I think, improving as we move forward. If we did have a situation where we had a host of different arrangements for professional sporting, for example, as opposed to our Olympic sporting bodies, then I think it would lead to confusion and claims of unfairness and inequality. What we have got at the moment is not perfect. Nobody is saying it is, but my sense is that we need to educate athletes, whatever sport they are from, that this is the overriding set of rules and these particular substances are performance enhancing or whatever regardless of which sport they play. A single set of rules across all sports makes sense to me. That would be my view on it.

CHAIR: There is a question around your powers under this legislation as ASADA's CEO and particularly round the ability to disclose information. Some have argued that that ability to disclose information is too broad. I am interested in your comments on that. What is the problem with the current powers in terms of information flow and how does this bill potentially improve things?

Mr McDevitt : I think in order to particularly deal with the eight antidoping violations that are not via presence, the flow of information both into and between NADOs and other agencies is absolutely critical. Hence, we see things like opportunities to amend the Customs regime. For example, if there are shipments of steroids coming across the border then I think the average taxpayer would expect that the national antidoping organisation would know about that. We need to make sure that we have that flow of information. We know that support personnel and sports scientists move not only nationally but internationally. We need to be able to share information with other NADOs. Similarly, we need to be able to gain information, and hence the powers that we have to issue notices for people to answer questions. Sure, those powers exist in some sports but, unfortunately, they are confined to those which the sports policy captures, so it would not, for example, capture the chemists and compounding companies that I might like to talk to. The flow of information here is critical.

In terms of commentary on ongoing cases and the protection of information there, it is really important that we protect the rights of the individuals who are involved in these processes. As I have mentioned previously, I think there is a risk when looking at and assessing our entire framework through the Cobia investigation because, in terms of the passage of information and that investigation being done under a very public spotlight, it is quite different than the normal method of operations.

CHAIR: I will be a little more specific. The Athletes' Alliance has raised issues around privacy for athletes. They referred to article 17 of the ICCPR:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home …

You do not see any implications for privacy of athletes in these changes? How will they be safeguarded through this legislation?

Mr McDevitt : ASADA is subject to very significant governance arrangements, including the Privacy Act. That applies to us as well. We think protection of the individual's privacy is absolutely paramount to athletes. Unfortunately, on some occasions athletes themselves choose, for whatever reasons, to publicise their case. There are dozens of cases going through the ASADA framework at the moment across a whole range of different sports that, quite rightly, are not public—nobody knows and they will not unless the athletes themselves for some reason choose to make that public.

CHAIR: I think at an estimates hearing we did discuss this a bit. We had one high-profile athlete who was publicly giving his version of events. I think you expressed some concern about your ability to respond to that. If there were a future scenario similar to that, where an athlete were talking about their case, would you be able to respond? Would this legislation enable you to do that?

Mr McDevitt : Yes, and I think that is extremely appropriate. We have had examples of where athletes have gone very public in terms of discussing their cases. However, in the way they discuss their cases there are a lot of omissions, and it is not a fulsome and correct record of activities or process or events. I think the opportunity for myself to be able to come out in those cases and actually correct the record is a very important thing for the reputation of the process and for the reputation of the agency itself.

Senator DI NATALE: I want to get to some broader issues. There has been a lot of commentary around your role—not you personally but the organisation and so on and that very challenging circumstances. One of the themes that has come up consistently is the issue of resourcing. I understand that a couple of staff in Victoria are no longer there. There are real questions about whether you have capacity to do what you need to do. You have a huge mandate. There are also some other things that have been raised, and I might just put them to you and get your response. The first thing is: resources and the time it takes for cases to be heard and for you to do your job. The second thing is: the question around your relationship with government. I understand that, previously, you were answerable to a board, and that the board was abolished and now you report directly to the minister. I am interested to know whether you think there is a case again for another board to sit more independently. And then the third thing is: we have heard about the problems with some of the tribunals—with CAS and so on—and potential conflict when a sporting code is hearing a case around one of their athletes. One of the proposals is for a single national tribunal. Someone has made that suggestion. Can I get your view on those three issues and anything else that you think would be helpful for us to hear about how you could better do your job? Maybe an inquiry is an appropriate tool to do that, but I am interested to hear your thoughts.

Mr McDevitt : The first issue you raised was in relation to resources. I doubt you will ever get any CEO of a Commonwealth agency sitting on this side of the table saying that they wanted less resources. Of course, we all want more and there would be other things we could do. We live under the same fiscal constraint as every other agency across the Commonwealth. You are right, it is a significant brief and body of work that we have responsibility for. We did have a surge in our resources to be able to cope with Cobia—the investigation into the AFL and the NRL. We are now going back to the sort of levels that we were at pre-Cobia. We are looking at the best way to get efficiencies. We are reducing our testing numbers and putting that resourcing into the investigations and intelligence, and that sort of thing. We are trying to do the best that we can with what we have. I guess I have only been there five months, so it is something that I would like to keep an eye on. I think it is a reasonable question to ask. But probably right now, moving to this new operating model, I am pretty comfortable with what we have.

You mentioned staff in Melbourne. That is part of it. What is the best way to actually centralise or decentralise your staff? What is the best staffing model? At the moment we have the bulk of the full-time staff in Canberra, and then we have quite a large casual component spread around the country. That is one of the things that we are looking at. I will probably be better placed to answer that question more fully a little further down the track. In terms of governance and the board, or the potential to go to an arrangement with a board, I have worked in a number of agencies where you have a board and also a direct line to a minister, and have needed to negotiate that. I am quite comfortable with where I am at at the moment. I sense that part of the question around a board would be that it may give protection from political interference. I can say in the five months that I have been here that I have not been subject to political interference. I have been allowed to do my job.

Senator DI NATALE: I suppose it is more a case of perception than reality. I wondered if that was something—

Mr McDevitt : It could be about perception; but, at the same time, one of the overriding issues that we have here and the constant complaint that we have is the amount of time that it takes from start to finish. The end-to-end processes here are quite convoluted; there is no doubt about that. They are quite complex. They present challenges to me as a regulator and also to an athlete having to navigate them. If you did put in a board there, my sense is that you would have an extension of that; you would probably further extend and convolute the end-to-end processes. My personal view is that I am pretty comfortable with how things sit at the moment, without having a board that I would then also have to negotiate with on a regular basis.

In relation to your third issue about tribunals and how sports having their own tribunals could lead to the perception of a real conflict of interest and, if not, certainly a perception of a conflict of interest, with them ultimately being responsible at the end of all this negotiated process, with them being the ones who actually hear the case and then apply the sanction. I think there would be people out there who would perceive a potential for a conflict of interest. As to whether or not that puts sports in a difficult position, maybe they might have some comment about that. Then there is whether or not there would be a possibility of a single tribunal, which I think is the New Zealand model. But it comes back to your earlier point about whether or not at some point there would not be a lessons learned opportunity, a bit of a review.

My sense for now is that we need to get this across the line. We need to be compliant with the rest of the world, with the other 170-odd countries, by 1 January. But I agree with you—and I said this earlier in my tenure—that a lessons learned opportunity to perhaps streamline some of our processes would be a useful thing to make sure we are protecting the athlete. However, you are not really protecting the athlete by delaying justice—so we probably could do something in that space. But, first off, I think we have to get this bedded down.

CHAIR: I am interested in going back to where we started with some of the questioning, and that is around the implications for sport if we do not pass this legislation—that is, if we were to reject it and not implement the WADA Code. I am interested to know, either from the department's point of view or from ASADA's point of view, what the potential implications are for Australia, for our sporting reputation. We have a range of things coming up here. We are hosting the Cricket World Cup, the Asian Football Confederation cup and the Netball World Cup. Would a failure to implement the WADA Code have any broader implications in the view of anyone at the table?

Mr Learmonth : There are implications in a couple of ways, and I think you have hit on them quite directly. The national sporting organisations will be faced with differing obligations. They would have the regime that ASADA would be forced to administer, and they separately would have an obligation to their international federations to be WADA compliant. So there would be two inconsistent codes that they would be subject to. I think it will be quite difficult for them; there is no question of that.

In terms of being noncompliant, I think that would be a fairly difficult proposition for WADA to find Australia noncompliant with the code. Australia has historically been an international leader in antidoping. It is perceived to be very strong and its leadership is valued. That also underpins part of our attractiveness as a destination for international sporting events. For example, we have the international cricket cup, as you pointed out, early next year, and the Asian football cup. Being seen to run a clean, WADA-compliant sporting event no doubt adds to the attraction. There would undoubtedly be some reputational fallout should Australia be not WADA compliant.

CHAIR: Mr McDevitt, regarding the point that Mr Learmonth raised about the differing obligations, you would have your legislation and then you would have a number of sports with different obligations. How would you reconcile those two?

Mr McDevitt : With great difficulty. At the moment, on my desk I have a template for 94 draft policies for the sports that we cover in the country. I am waiting to be able to get those out to the sports for them to make any additional comment or any additions, which normally would only be impacted on by their international obligations through their international federations, and get those back and signed off by 1 January so that we can have a consistent model across the country. I share Mr Learmonth's view: I think it would be a very difficult and uncomfortable circumstance for us as a national antidoping organisation to find ourselves at odds, quite frankly, with the rest of the sporting world.

Senator DI NATALE: Given the resources the NRL and AFL investigation has consumed, have you been able to investigate all of the other cases that you needed to over the past year and a half?

Mr McDevitt : Yes, we have. I have issued 20-plus notices across eight different sports, not counting the NRL and the AFL. We had a division of resources where we had a team dedicated to the AFL and NRL matters and then a separate team that would continue to conduct the business as usual. In fairness to all of those other athletes, we could not put their matters on hold, so we have been progressing those matters simultaneously. I am not saying it has been easy; it has been quite difficult and there has been a lot of work and a lot of pressure on individuals in the organisation, but I am quite proud that they have managed to maintain and complete that work.

CHAIR: I thank all of our witnesses today for appearing. We are now adjourned.

Committee adjourned at 12:27