Mr GRIFFIN (10:05 AM) —Let me start by making it clear that Labor support the Australian Sports Commission Amendment Bill 2004. We do so because it assists government agencies to continue the fight against drugs in sport. The bill does not represent any new policy direction by the government; it merely facilitates the exchange of information between government agencies and national sporting associations to assist in identifying and investigating drug cheats.

Like much of the action taken by this government to stamp out drug cheats in sport, it is, again, too little, too late. The fact that the provisions of this bill are to be applied retrospectively is evidence in itself that the government is playing catch-up, not setting new directions. Playing catch-up in the fight to eradicate the use of performance-enhancing drugs in sport is simply not good enough. The recent BALCO case in the USA is evidence of this. Drug cheats are becoming more sophisticated. New drugs and new techniques to enhance biophysical performance are being developed just about daily. At the same time they are becoming harder to detect.

Australia has prided itself on being a world leader in the battle against the use of performance-enhancing drugs in sport. As a nation, we find the whole concept of individuals, teams and, in the past, even governments using drugs to enhance the performance of elite athletes totally abhorrent. We are a fair-minded people, proud of the achievements of our elite sports men and women. We have no tolerance for drug cheats and look to the government to provide leadership on this important matter.

Much to the embarrassment of this government, it is Labor that has led the way in the fight against drugs in sport. It was a Labor government that took action to stamp out the use of performance-enhancing drugs in sport by establishing the Australian Sports Drug Agency in 1990; it is Labor that has consistently put forward policies to eradicate drugs from sport; it is Labor that has consistently argued for the appointment of a sports drug ombudsman; and it is Labor that has consistently argued that the current system of detecting, investigating and dealing with drug cheats is unworkable, with too many players, too many different rules and too many different standards. Australia needs a consistent, uniform approach to dealing with drug cheats—a system that applies to everyone involved, from Customs and drug testers to sports bureaucrats and sports associations; and a system which athletes, athlete support staff, sports associations, government agencies and the general public can easily understand.

The confusion that surrounds drug testing and dealing with drug cheats is typified by recent press reports that AFL commissioners and executive staff are to be subject to voluntary random drug testing. According to the press reports, this decision was made to assuage young footballers concerned that random off-season drug testing could be an invasion of their privacy. The concern was not with testing for performance-enhancing drugs, but for recreational drugs. The motivation behind this gesture by the AFL commissioners and executive may be of the highest intent, but what message does it send to the broader community? Do we really expect sports administrators to adhere to the same antidoping standards as elite athletes?

I raise this not to be disparaging of the AFL. The AFL, like many sports, is trying to deal positively with the problem of drugs in sport, and I am supportive of its efforts in this regard. Unlike the government, the AFL has been open and consultative in developing its antidoping policy. But the fact the commissioners believe they have to apply elite athlete antidoping standards to the governance activities of the AFL in order to gain the support of elite athletes is symptomatic of the confusion that surrounds the intent of antidoping policies in this country.

What this highlights is the lack of leadership on this matter by the government. Sports organisations are crying out for help, but the government is not listening. We only need to look at the background to this bill to see just how slow the government has been to act, even when faced with allegations of widespread drug use in a government owned facility.

It was only after Senators Faulkner and Lundy raised in the other place concerns about doping practices at the AIS Del Monte facility for cycling, and followed up their concerns in Senate estimates hearings on 27 May 2004, that the government reluctantly decided to take action. The concerns raised by Senators Lundy and Faulkner related to allegations of the use of the banned substances equine growth hormone and Testicomp by members of Australia’s cycling team. As all of Australia is now aware, cleaners found evidence that a room at the AIS Del Monte facility was being used by one or more elite athletes as an injecting room for performance-enhancing substances. Instead of fully investigating these allegations as soon as the ‘sharps bucket’ was found at Del Monte, the government fumbled the ball.

What was the government’s reaction? It tried to cover it all up until after the Athens Olympic Games. The Australian public were not informed. Instead the government instigated a series of amateur and secretive investigations by coaches, ASC bureaucrats and a lawyer contracted to the ASC. So ineffective were these investigations that the government was forced to initiate a more formal inquiry by the Hon. Robert Anderson QC. In his report Mr. Anderson identified a raft of inadequacies and incompetence that beggars the imagination.

There is no doubt that it was only after persistent questioning by Senators Lundy and Faulkner that the minister was forced into engaging Mr Anderson. If Labor had not pursued the matter, nothing would have happened. What made this situation worse was that the government had been warned of problems with some sporting organisations submitting timely drug-testing information. Senator Lundy, in May 2003 during Senate estimates hearings, highlighted problems between the ASC and the ASDA on the importance of sporting organisations submitting timely drug-testing information. How did the minister react to this? Did he publicly reinforce the importance of maintaining a consistent drug-testing regime for sports? Did he instruct the ASC to withdraw funding from the sports that failed to comply? No. All the minister did was issue a written statement indicating that differences between the ASC and ASDA on the importance of sports associations complying with drug-testing requirements had been settled.

We can only speculate that, if the minister had responded to the problems raised by Labor in 2003, the Del Monte affair would have been handled in a far more competent manner. In his report into the doping allegations at Del Monte, Mr Anderson made wide-ranging recommendations which showed just how underdone this government’s approach to drugs in sport really is. Mr Anderson’s recommendations included: the introduction into all AIS athlete agreements of a provision allowing for random room searches at residential facilities; the implementation of a system of random room searches; the task of conducting room searches to be allocated to staff other than coaches and support staff who have regular interaction with athletes; involving agencies such as the Australian Federal Police and the Australian Sports Drug Agency in the process of designing random search procedures and training designated AIS staff; initiating regular consultation between the designated searchers and the ASDA to share intelligence on the latest trends in sports doping practices; establishing clear policies for AIS athletes in relation to the practice of self-injecting; and building an education program into the existing drugs in sport education and counselling programs with the specific aim of installing the idea, especially in young athletes, that they should not only refrain personally from drug taking but also be intolerant of it in their sport and be prepared to join in the efforts to eradicate it.

What has happened since? Consistent with the government’s previous actions, not much. It is true that the power to search athlete’s rooms has been written into AIS scholarship agreements. This was confirmed by the Australian Sports Commission Chief Executive Officer, Mark Peters, in response to questions from Senator Lundy at the February 2005 Senate estimate hearings. Mr. Peters also indicated that processes and procedures to initiate random room searches had not been finalised, so no room searches had actually been conducted. He indicated that discussions with the agencies suggested by Mr. Anderson to finalise the development of these processes and procedures ‘are still in progress’.

Interestingly, an ASC spokesperson was reported in the Courier-Mail of 18 February 2005 as indicating there were ‘legal and privacy issues’ that could make the ASC baulk at introducing the searches. It is significant that I can find no statement from the minister in relation to these matters. Given the circumstances that led to these recommendations being made by Mr. Anderson, I would have thought it crucial for the minister to take the lead and reassure Australians that action has been taken, and not just leave it to an ASC official. The government’s position with regard to the investigation of sports drug allegations is also unclear.

Late last year the minister released a paper prepared by the Department of Communications, Information Technology and the Arts titled ‘Discussion paper about proposed legislation affecting Australian arrangements for the investigations and hearing of sports doping allegations’. The discussion paper looks at legislating to establish an independent board called the Sports Doping Investigations Board, with members appointed by the Commonwealth minister for sport and recreation.

Establishing a board is not the answer. The 1990 Senate drugs in sport inquiry came to this conclusion 15 years ago after working its way through two years of hearings, at least one confirmed sports death and 15,000 pages of evidence and documents. But the minister is not interested. He is only interested in protecting the interests of the sports bureaucrats and some sporting associations. This is evidenced by the minister’s announcement in March 2003, well before the Anderson inquiry, that a ‘working group comprised of portfolio agencies will be consulting with the Australian Olympic Committee, the Australian Commonwealth Games Association and national sporting organisations on the possible establishment of an independent tribunal’. Nearly two years later, we have still to learn of the outcomes of the deliberations of this working group.

In July 2004, following pressure from the Australian Olympic Committee for the government to establish a sports drug ombudsman, a spokesperson for the minister is quoted in the Age as saying that the minister was close to announcing the establishment of an independent agency to investigate all sports drug agencies but needed to consider ‘fairly weighty legal issues’. Did the working group ever meet? If it did meet, what were the recommendations? What were the ‘fairly weighty legal issues’ the minister was considering in July of last year? Have these matters been resolved?

Only the minister knows the answer to these questions, and he is saying nothing. Given the level of inaction by the minister, it is easy to speculate that these are the statements of a minister anxious to look as though the government is doing something when it is really just marking time. Will we need to wait for another sports drugs scandal before the minister finally acts? Will it be necessary for Australia to be embarrassed before the international sports world in the lead-up to the 2006 Commonwealth Games before the minister finally acts? It really is an extraordinary situation.

We have a government willing to take the highest possible moral ground on eradicating drugs from international sport, but unwilling to address the situation in their own backyard. As journalist Liam Bartlett said in an article published in the Sunday Times on 18 July 2004 when commenting on the failure of the ASC to act quickly on the cycling allegations:

Does the minister seem concerned about this situation? It appears not.

Labor believes the answer is to establish a sports drug investigation capacity as part of the Office of the Commonwealth Ombudsman. Expansion of the Office of the Commonwealth Ombudsman would reduce the need for new legislation, avoid the need to duplicate administrative structures and make use of the extensive experience in undertaking reviews and investigations that is already present in the Ombudsman’s office. There will be a need for legislation to achieve this, and Labor calls on the government to act on this suggestion as a matter of urgency. The legislation should empower the Commonwealth Ombudsman to work with state and federal police departments and the ASDA to investigate, search and prosecute alleged incidents of doping in sport. All incidents of doping in sport within Australia’s borders should be referred to the expanded Office of the Ombudsman, including the importation of banned substances. In this expanded role, the Office of the Commonwealth Ombudsman would also work closely with the AOC and Commonwealth Games committees. Under Labor’s proposal, the Ombudsman would also represent federal government agencies at any hearings within the Court of Arbitration for Sport.

Labor recognises that many NSOs have developed their own antidoping policies based upon World Anti Drug Agency guidelines but believes the community wants a consistent approach to sports drug incidents. The community cannot understand why there is variation in antidoping procedures and penalties between sports. Australians do not want drug cheats in any sport, and the government has a responsibility to ensure this happens. Establishing a new board as proposed by the government, irrespective of how prominent its members may be, will not address this problem. As I indicated earlier, Australians want certainty and consistency about how drug cheats are dealt with.

Let me now turn to the bill before the House. The amendments proposed are clearly designed to close a gap in current legislation. Given the retrospective application of the amendments, it is also reasonable to assume that prescribed information has been informally disclosed to the ASC in the past. If this did occur, at least this legislation seeks to regularise the situation and put in place some measures to protect the privacy of athletes accused of being drug cheats.

The unauthorised release of test results that occurred during the 2005 Australian Open is a good example of the damage that can occur if there is no regulatory structure around drug testing, drug investigations and drug allegations. Despite this, the need for retrospective legislation is indicative of the government’s approach to many of the contemporary issues it faces. There is no strategic plan; its only mode of operation is to be reactive to events that occur. Rather than formulate policy and legislation in a logical and thoughtful manner, this government waits until there is a crisis and then acts. As always, it acts without thinking through the full implications of its actions. In the case of this legislation, what thought has the government given to what happens when it finally decides to act on Mr Anderson’s recommendations to establish an independent drug investigation body? What will the role of the ASC be in this new environment? Will there be a need to further amend this act once the new body has been established?

The amendment will allow the executive director of the ASC to release prescribed information received from the CEO of Customs to ASC officials and to sporting organisations for the purpose of investigating and implementing antidoping policies. The bill provides for such information to be released only if the executive director of the ASC is satisfied that the information should be disclosed to another person in the course of taking action under an antidoping policy of the ASC. Specifically, the executive director must be satisfied that the disclosure of the information will not contravene any terms of the authorisation as disclosed to the ASC by Customs.

Specific conditions under which the executive director can release prescribed information are set out in the bill. These specific conditions require the executive director of the ASC to: be satisfied that the information to be disclosed is for permitted antidoping purposes of the organisation to which it is to be released and that the organisation has given a written undertaking, (i), that the information will be used or disclosed only for permitted antidoping purposes of the organisation and, (ii), that the organisation will take reasonable steps to satisfy itself that the information will not be used or disclosed by a person to whom the organisation has disclosed the information in a way that is unfairly prejudicial to the interests of the person to whom the information relates; be satisfied that the disclosure of the information would not contravene any terms of the authorisation under which the protected information was disclosed to the ASC by Customs; and be satisfied that the person to whom the information relates is accorded natural justice.

Labor understands the need for information to be passed to other ASC officials and to relevant NSOs but is concerned to ensure the protocols and procedures associated with this are clearly spelt out and subject to public scrutiny. To this end, I call on the minister to give an undertaking that the procedures developed by the executive director of the ASC to govern the release of prescribed information to ASC officials and to other sporting organisations will be made publicly available. This will ensure all athletes, and all Australians, understand the procedures and will be assured the privacy of individuals is appropriately protected.

The bill includes a provision requiring that the executive director of the ASC advise an affected athlete of his or her intent to release prescribed information and that a written submission be made on the matter. The executive director of the ASC must advise on the manner in which, and the conditions under which, the disclosure of prescribed information is to be made. This includes specifying the form in which the information is to be presented and the mode of transmitting the information. The submission period will normally be 14 days after the day on which the person receives the notice, or, if the executive director of the ASC considers it appropriate, a shorter period. The bill identifies that a shorter period may be appropriate when, for example, a competition is imminent. The executive director of the ASC is prohibited from disclosing the information to others until the submission period has ended and any submission received considered. Written notice of any proposed disclosure to an athlete or their nominee must advise the person that receipt of a submission before the end of the specified submission period has the effect of shortening the submission period.

At the 2004 federal election Labor put forward a plan that would tackle the problem of drugs in sport—a plan for action, ready to go. By contrast, the government continues to set such a slow pace that no drug cheat need fear being discovered, unless they leave drug paraphernalia for the cleaners to find. Labor support this bill because we have to. What other option do we have in the face of a policy vacuum? The lack of any leadership or policy direction to rid sport of drug cheats by this government is an insult to all those athletes who train hard to perform their best for this country, without the aid of performance-enhancing drugs. This bill addresses only one very small part of the actions required to rid sport of drug cheats. Labor will keep the pressure on the government to respond to all of the recommendations of the Anderson report and to establish an independent tribunal to investigate and deal with sports drug allegations. In the meantime, I commend the bill to the House.