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Rural and Regional Affairs and Transport Legislation Committee
Heffernan, Sen Bill
Di Natale, Sen Richard
Gallacher, Sen Alex
Bernardi, Sen Cory
Brandis, Sen George
Edwards, Sen Sean
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Rural and Regional Affairs and Transport Legislation Committee
(Senate-Friday, 1 March 2013)
CHAIR (Senator Sterle)
Senator DI NATALE
Senator DI NATALE
Senator DI NATALE
Senator DI NATALE
Senator DI NATALE
Senator DI NATALE
Senator DI NATALE
Senator DI NATALE
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ABRAHAMS, Mr Michael, Legal Counsel, Australian Cricketers' Association
FINNIS, Mr Matthew, Board Member, Australian Athletes' Alliance and Chief Executive Officer, AFL Players' Association
SCHWAB, Mr Brendan, General Secretary, Australian Athletes' Alliance
CHAIR: Is everyone suited up and ready for battle? I welcome representatives of the Australian Athletes Alliance. The alliance has lodged submission No. 6, would you like to make any amendments or additions to your submission?
Mr Finnis : Senator, we do not wish to make any amendments or variations. Perhaps we could make some introductory comments and some observations in relation to some of the other submissions which have been made.
CHAIR: I invite you to make brief opening statement. The time is yours, but if you go on too long I will be rude and interrupt you.
Mr Finnis : Thank you for the opportunity—
CHAIR: I am sorry to interrupt. Do you have a problem being filmed?
Mr Finnis : No. The triple A represents eight player associations which to some extent overlap the organisations represented by Mr Speed. It comprises approximately 3,000 of Australia's most elite athletes. Many of those are professional athletes who participate in significant team sport competitions but it also comprises many Olympic athletes or athletes who might be described as amateur in some circumstances. Regardless of the employment status or their earning capacity, one thing these athletes have in common is that they all play their sport because they love the sport and they have the highest interest in a level playing field and in pure performance. The athlete associations which we represent have a strong track record in supporting measures which have been introduced in some cases through legislation or in others through the sports themselves—through contract—in seeking to preserve, promote and maintain the integrity of sport. Our comments and submissions go to some of our concerns with the bill, but, please, in no way mistake them in any way for us being apologists for those who might seek to undermine the integrity of sport. We believe it is our athletes who have the greatest interest in ensuring that because their very livelihoods depend upon it. It is important to note that any variation of athletes' rights—and some of those are contemplated by the bill—goes to the fundamental human rights of athletes and in our view such abrogation should only occur in the most exceptional circumstances where absolutely necessary. We are concerned that perhaps it has not been articulated to the level or threshold that I think the public, or indeed the athletes, would suggest is appropriate for us to be confident that such fundamental variations are indeed justified.
I think it is important that the bill is considered and that the role of athletes is considered as being part of the solution. The athletes are not the problem; the athletes have an opportunity to be part of the solution, particularly, as we have heard already, in fighting against performance enhancing drugs we are going to be less reliant upon analytical positive test results to drug testing and more reliant upon information that can be provided. Indeed, the very review of the WADA code that is going on right now contemplates the role of encouraging athletes to come forward but also to cooperate with investigations, even when they themselves might have some exposure—but that is dealt with through the code. I think what we need to be careful of is that, by virtue of the structures that we establish in legislation, we do not necessarily foster and facilitate that trust and confidence and cooperation of the athletes, with the very institutions they rely upon and that are surrounding them, to provide that level playing field.
So I think it is important to make those points. It is about proportionality in terms of a response, but every athlete has a fundamental interest in stamping out any threat to the sport which may come about in the form of the performance enhancing drug use.
CHAIR: Thanks, Mr Finnis. Mr Schwab or Mr Abrahams, did you wish to use the 30 seconds that is left to say something?
Mr Schwab : I would like to briefly touch on the submissions of the AOC and the Australian Sports Commission, if I may.
CHAIR: Yes, you may. I would ask you to keep it short so that we can get to questions.
Mr Schwab : Certainly. There is a very strong thrust in those submissions about taking a strong stand, which of course sounds simple. The recommendation is that athletes sign statutory declarations—indeed, there is a recommendation in that submission that we move towards criminal penalties. I think Senator Brandis and Senator Di Natale have observed just how onerous the contractual obligations are that athletes have to sign, and which they sign with the support of their associations.
Senator HEFFERNAN: Would Mr Armstrong have signed one of those?
Mr Schwab : I'm sorry, Senator—Mr?
CHAIR: I think he means the American cyclist.
Senator HEFFERNAN: Mr Armstrong, you know—
CHAIR: Anyway, keep going, Mr Schwab.
Mr Schwab : There is a move in that submission towards even criminalising some aspects, so we could have a scenario where an athlete who fails to disclose information, with a reverse onus, is potentially committing a criminal act—where the very circumstance that Senator Heffernan has just described, had that been a positive test for the most performance enhancing of substances, is not a criminal act. The question needs to be asked: why would we do this? WADA, with the support of ASADA—ASADA has to operate under the auspices of WADA—has a long history of taking strong stands. The recent example has been athletes' whereabouts. We must survey the athletes 24 hours a day, seven days a week, so we can test them out of competition. The AOC submission itself identifies the ineffectiveness of that process. Athletes suffered career-ending penalties if they failed to be where they were going to be up to three occasions over a prescribed period.
So we have had enough of a strong stand. What we need is an intelligent approach which is balanced, informed and proportionate. Should we introduce statutory declarations, we make four observations. First, they are likely to be ineffective. The obvious drug cheat who is facing career-ending penalties will not hesitate to sign a statutory declaration. Second, we are moving towards non-analytical means, including investigation. There is a process of reviewing the WADA code—and, as we say in our submission, this bill should be considered once that process has been completed, which will be towards the end of the year. But what we do know is that there will be greater investigative powers and there will be encouragement for athletes to come forward. In fact, the proposed WADA code will completely exonerate a proven drug user who provides substantial assistance up to the requirements of the code from any penalty, because they understand how important that is. The requirement to sign a statutory declaration, of course, could run counter to that process.
The third problem with the statutory declaration is that it places the prosecuting responsibilities outside of ASADA and outside of the sport into the hands of the broader law enforcement authorities who have all their other competing obligations. We sign up to a code so that it can be enforced quickly, effectively and within the sporting framework; that is why the contractual arrangements are so important. We endorse what Mr Speed said: perhaps the biggest problem with this bill or the biggest problem that would justify this bill is the need to attract the so-called third parties—the people outside sport's contractual regime.
The fourth point about the statutory declarations and about any move towards criminalisation is that we would then have criminal standards. If it is going to be a criminal offence then we would be expected to be entitled to the presumption of innocence, and athletes would have to have any offence proven to the criminal standard beyond a reasonable doubt. The WADA code does not operate in those circumstances. The WADA code provides a lesser standard so that we can have a practical approach.
I thank you for the opportunity to make those observations about the submissions of the AOC, which have been endorsed by the Australian Sports Commission and which, under the present arrangements, are planned to be implemented throughout sport irrespective of this bill.
Senator DI NATALE: I am interested in that last point. Are you suggesting that by raising the level of proof to a criminal standard we might, in fact, be hamstrung in the sense that WADA operates under a different burden of proof?
Mr Schwab : Exactly right. WADA operates under the force of contract, but it is a very strong force; there is a strong global movement. The penalties are set out in the contracts and there is an appeal, ultimately, to the Court of Arbitration for Sport. WADA can bring its own appeals. The legal framework is very robust but the burden of proof and the standard of proof are subject to different tests which have been developed based on a peculiar requirement of the anti-doping regime.
Senator DI NATALE: I will use an example. The obvious one is the recent announcement by the Australian Crime Commission and the actions that resulted from that. I assume you are very familiar with the inner workings of that process. Has there been any evidence as far as you can tell that any of the teams or individuals involved failed to cooperate with the investigations and, therefore, the sorts of powers outlined in this bill are warranted?
Mr Finnis : I am not aware of any such evidence. I am aware of only my personal experience, which would suggest the contrary; the athletes have been more than willing to cooperate with the processes.
Senator DI NATALE: On the question of a civil or criminal penalty being applied to individual athletes, if you are a particularly elite-level sportsmen—an AFL footballer on a significant contract, often in the hundreds of thousands of dollars per year, with potentially 10 or 15 years ahead of you—do you think it would make any difference to have the penalty imposed on top of that as a deterrent?
Mr Finnis : No, I think the primary motivator would be—and ought be—the fact that it is a privilege to play the game and, as part of that, they have signed up to the contractual arrangement whereby they forego certain liberties which we would ordinarily expect, and they do so because of their value in curbing any threats to the integrity of the sport. But there needs to be a proportionality to that, and the athletes are in the best place to ensure that proportionality through their contractual negotiations and their collective representation through the association and the AFL.
Senator DI NATALE: On the illicit drugs code, because I am sure that potentially may be a question from other senators, how many other sports do illicit drug testing—out-of-competition drug testing? How many of the elite codes do what you do?
Mr Finnis : We were obviously the first sport to do that. When Senator Brandis was Minister for Arts and Sport the government introduced its own policy framework for all NSOs to avail themselves of that testing. So I do not know how many of them do that. What I do know is the reason we did that was quite separate to the performance enhancing framework, because we do know that some illicit substances are banned on match day. But we also know that it is beyond the remit of ASADA to test athletes for the use of those illicit substances outside of game day. It is simply not done. Therefore, the fact that we decided to do that in AFL was wholly above any reason for catching cheats, but purely around the health and welfare of the athletes.
Senator DI NATALE: To be clear about that, we have some illicit drugs that are not performance enhancing, but many of which I am sure impact adversely on a player's performance.
Mr Finnis : Yes.
Senator DI NATALE: The AFL is under no obligation whatsoever under the WADA code to test for those substances, but it has in fact initiated its own testing regime for those substances in an effort to address issues of player welfare. Is that an accurate summary of the AFL approach.
Mr Finnis : That is an accurate summary.
Senator GALLACHER: The casual observer would notice that NSW harness racing had some difficulties and that some jockeys have had some difficulties with their code. Then, if you watch any national telecast, whether it be the tennis or the football, you see an increasing culture of betting odds coming across the screen. To what extent do we need assurance that the deterrents are there for match fixing or for the first goal, for argument's sake?
Mr Finnis : Given his experience, Mr Schwab might answer that.
Mr Schwab : I have had extensive involvement in international football. I represent the World Players' Union. Match fixing is a big problem in football. What I can say is that it does not start with the players; it starts with organised crime, who are driven by the massive betting markets. There are billion dollar betting markets on football. And not even big matches—even small matches, sometimes third division games in small European countries. There is a huge global effort to deal with it. I must say that Australia has done well in that respect. It has been very pre-emptive. We have had very good cooperation with the Coalition of Major Professional and Participation Sports. There is now a national match-fixing policy, which has been legislated throughout the country. Australia has done a good job there.
There is another Senate inquiry into that very matter. I think it does go to the integrity of sport in the public eye. We have to make sure that our cultural values are right. But in terms of the specifics of our national policy, we always have to be robust, but I think the right steps have been made, and we have to monitor this space very closely.
Senator BERNARDI: Your submission says that AAA does not consider:
…the National Anti-Doping Scheme (or 'NAD scheme'), which … reflects the World Anti-Doping Authority Code ('WADA Code')) to be a fair and effective governing model to prevent doping.
Why don't you think it is effective or fair?
Mr Finnis : I will offer my observation and then perhaps I will go to my colleagues for their response. I would probably point as much to the AOC's own submission in this regard, which I think points to a number of the failings of systems over the years in terms of the ability to actually curb this issue. The observation, I guess, is offered in a general sense to say that we recognise that the efforts that traditionally have been utilised have not necessarily been successful, which is why we do support components of the bill that go to extending the information-sharing arrangements and also go to extending the purview of the operation of the legislation beyond the athletes to those who might otherwise fall outside of the jurisdiction of sports, which it has not been able to do in the past.
Senator BERNARDI: Yet your submission rejects the idea that an athlete's doctor or legal adviser, who are outside of the normal WADA code, can be compelled to give evidence?
Mr Finnis : When it comes to the public interest, we think the public interest in maintaining the confidence in a relationship between a doctor and a patient in a more fundamental public interest that must be preserved for the very safety of athletes that could otherwise be compromised, as potentially is the case here.
Senator BERNARDI: You represent 3,000 athletes. How many of them have returned a positive test for performance-enhancing or illicit drugs in the last one, two or five years?
Mr Finnis : We will separate performance-enhancing from illicit drugs.
Senator BERNARDI: Why?
Mr Finnis : The bill is focussed on performance-enhancing drugs. When it comes to my own sport, we have heard evidence already that in the past 18 years there has only been one athlete who has tested positive—I cannot speak for all sports.
Senator BERNARDI: Does that reflect your concerns that the existing governing model is neither effective nor fair? Is it that ineffective that only one person has been detected.
Mr Finnis : From our point of view, the fact that no-one is detected does not mean the system is not working. We would like to assume, on the basis there has only been one anti-drugging rule violation, that our sport is completely clean. But we are not naive enough to suggest that it might not be at risk. Therefore we need to have an effective regime which does its best to catch these people.
Senator BERNARDI: I appreciate your candour. You have tried to differentiate between performance-enhancing drugs and illicit drugs. There is a third category of drugs—performance-enhancing drugs that are neither illicit nor banned under the WADA code. This bill deals with all those things. You cannot say you only want to talk about one bit, as this bill deals with all of it.
Mr Finnis : Yes, but our submission, insofar as it relates to the particulars of the bills, is that the coercive powers being sought to be conferred we say ought only be used in any case where they go to the investigation of an anti-doping rule violation under the NAD scheme or the WADA code.
Senator BERNARDI: AFL is your sport, isn't it?
Mr Finnis : Yes.
Senator BERNARDI: Yet recently the MCC was out with ministers and representatives of professional sport talking about the use of peptides that are neither illegal nor contravening the WADA code.
Mr Finnis : My understanding is that some of those peptides are indeed banned.
Senator BERNARDI: Some may be, but we do not know as no detail was put forward. In fact only 150 smears have been tested.
Mr Finnis : We rely upon medical experts who govern the list to decide what is performance enhancing and what is not. If it is on that list we need to make sure that any use of that is being detected and investigated to the extent it can be.
Senator BERNARDI: But this bill is not limited to that. You have identified insufficient definitions in your submission, such as rights afforded to ASADA and various other things. There is a range of areas in which your members could be vulnerable and hauled before the tribunal on the basis of not breaching the WADA code, the Australian criminal code or any internal drug policy attached to your professional members.
Mr Finnis : That would give us cause for concern, because essentially we are doing a bit of jurisdiction splitting. On one hand we have a robust series of contractual relationships which govern the employment relationship and on the other hand we seem to have potential interfering by another regime over the top which we do not think facilitates the most ideal outcome.
Senator BERNARDI: I have one more question in respect of costs. Have you thought about this? If your athletes are asked to appear before ASADA for an investigatory hearing, who bears the costs of that?
Mr Finnis : We are very concerned about that. I would hate for people to focus on the fact that my members are professional athletes playing an elite team sport when the majority of the athletes who will be affected by this bill are earning far less, indeed many of them are below the minimum wage. So we are very concerned about the compliance costs. I think that the representatives from the Victorian bar would probably be able to attest to the demands that are put upon pro bono advice and support for athletes in what is becoming an increasingly complex and regulated regime. We are very concerned about that.
Senator BRANDIS: Mr Finnis, coming back to your answer to Senator Bernardi's previous question when you said your members are subject to a very robust contractual regime and they are also subject to this legislation. It is actually worse than that—isn't it?—because, as Mr Schwab pointed out, one of the effects of this legislation is to criminalise non-cooperation with an investigation into things which are not themselves crimes. That's right, isn't it?
Mr Finnis : As I understand it.
Senator BRANDIS: So because the legislation is so widely drawn, under these new provisions that the government wants to include one of your members might be required to give information as part of an investigation under an NAD scheme and asked about substances which are not illicit drugs, which are not in breach of the wider code, which are not in breach of the UNESCO anti-doping convention and which are not in breach of an internal code of a particular national sporting organisation, such as the AFL, and yet if they fail to cooperate in answering questions about that conduct, which is neither illegal nor in breach of any relevant code, they have committed a crime. What do you say about that?
Mr Finnis : I think our submission addresses our concern with that. We understand the desirability—in fact, the necessity—to be able to capture people who might not be captured through the contractual jurisdiction of sport and who may peddle these substances. We think it is important that they are captured more within the purview but we think that it is not a broadbrush approach that needs to be taken. There is some very fine drafting, I would have thought, that is required to appropriately strike the balance
Senator BRANDIS: Rather than I would have thought defining a drug as 'any substance', which is what this act does at the moment, it might be a more intelligent approach to simply say it is a crime to be a supplier or a trafficker in a wider code prohibited substance for the purposes of supplying it to a sportsperson or a sports doctor if its use were reasonably expected to be a breach of the wider code or the code of that sport. Mr Schwab, would that be a better way to go about it?
Mr Schwab : You have drafted very well and effectively, it seems, on the run there but in principle yes. I would also like to make a very important point about how a substance gets on the prohibited list. There is a threefold test which is being debated vigorously as the code is presently being reviewed and it is actually likely to make the test even narrower. I represented an athlete called Stan Lazaridis. In answer to the question of Senator Bernardi—why do we say the code is ineffective and unjust?—can I give you an example about what happens. As the AAC submission suggests, less than 0.9 per cent of the tests are positive so there is a concern over testing. David Howman, the CEO of WADA, believes that doping is at double digits. We have not seen any evidence to support that, not even with the report the other day. There has been no evidence to suggest it but let us assume that the testing regime is not as effective as it could be. We have to ask ourselves why that happens.
If we look at who are producing the positive tests, the research of the World Athletes Union show that the vast majority of those for anabolic steroids and things like that that we are trying detect are in sports like body building and weight lifting. Then there is another portion for things such as cannabis, which are not performance enhancing but are prohibited on match day.
Then we need to deal with cases like the Stan Lazarides case. He tested positive for Finasteride but failed to get his therapeutic use exemption in on time. He received a two-year ban. That ended his career. At the end of his ban—two-weeks after it had elapsed—Finasteride was taken off the prohibited substance list because it had been improperly included. It had been included because it was meant to be a masking agent for anabolic steroids. In the prosecution of the case, even ASADA said that this had absolutely nothing to do with the artificial enhancement of sporting performance.
These two factors together—the ineffectiveness of testing and the unjust nature of a strict liability code with mandatory penalties—mean that we cannot say, 'Let's go tough again; let's take a strong stand.' The athletes say, 'Let's take an effective stand, please.' Nearly all athletes want a level playing field. We are disadvantaged when the WADA people and ASADA take a strong stand that is ineffective. It needs to be balanced and it needs to be proportionate. This international process will not completed until the end of the year. In our submission, it is not for the Australian parliament to add substances to the list of banned substances. That is a matter for inclusion on the prohibited substance list of WADA.
Senator BRANDIS: Can you expand on the last point that you made? You talked about a process not being completed until the end of the year.
Mr Schwab : Yes.
Senator BRANDIS: Are you saying that these amendments to the ASADA act are premature until the WADA review is completed later in 2013?
Mr Schwab : Yes. That is our very strong submission to the committee.
Senator BRANDIS: Mr Finnis, you and your two colleagues are the only witnesses giving evidence today who represent athletes. All the other witnesses are either from enforcement agencies or represent sporting organisations or the sporting power structure, as it were. You were asked by my colleague Senator Bernardi about the ACC investigation. I want to ask you a general question. I fully appreciate the concern of all athletes—apart from the dodgy ones, and I am sure that there are not many of those—to be compliant with their obligations and to be drug free. How did you and your members feel when they saw the Australian Crime Commission and two ministers of the federal government making sweeping assertions touching all Australian sportspeople about drug use?
Mr Finnis : Our members were alarmed, because of the nature of the report and the contents of it that were mentioned and the manner in which it was reported. You must remember that the athletes were not advised beforehand of the contents of the report or indeed given any briefings about it. When that information was provided—and our sport was one of the sports that was mentioned as being part of the investigation that led to the report—our members were quite alarmed. It is their expectation of us as an association that we get to the bottom of the extent and the scope of the evidence in that report that has been relied upon to make those statements and announcements in the way that they were.
Senator BRANDIS: But it is important that we get to the bottom of this without potentially besmirching the reputation of every clean athlete, isn't it?
Mr Finnis : Absolutely.
Senator BRANDIS: Mr Schwab, did you want to say anything?
Mr Schwab : Yes. There needs to be a much greater focus on prevention. Senator Gallacher asked the group about the issue of betting and match fixing. One of the great focuses there has been on prevention. That involves education and trying to tackle the problem at it source. We still have a long way to go. There is not nearly that focus when it comes to ASADA. ASADA, for example, has greatly reduced the educational programs provided to athletes.
I will give you an example of what occurs. ASADA will email a PowerPoint presentation to the sport. The sport will then email the PowerPoint presentation to the clubs. The players will be given a 15-minute PowerPoint presentation by somebody who is probably not qualified to give it, because it is a complex matter. That person will often be someone in charge of the sports science or the conditioning aspects of the club, who may well be pushing the boundary—we do not know—according to what was imputed in the ACC report.
At the end of that process the athletes sign a declaration saying they have been trained. That is not an effective prevention process. That means that much greater investigation needs to be made in that area. And it requires investment for the education programs to be delivered by people the athletes trust, which tends to be the players associations.
Senator EDWARDS: I will cover this very quickly because a lot of the issues about the types of drugs have been covered and the issue of the law has been covered. What is your view on ASADA's ability—if the powers that this bill is proposing are delivered—or resources or capacity to fulfil what this bill proposes? I will throw it to you, Mr Schwab.
Mr Schwab : Our submission generally makes the point that we think that research and analysis is required to develop these measures which are recommended, given the concerns and questions they raise about the fundamental rights of athletes—and athletes do have human rights and they are also workers, so they have the rights of workers—and we think that that work needs to be done.
Senator EDWARDS: But ASADA gets, effectively, as much power as the ACC. And my contention is that it is not a criminal investigation organisation.
Mr Schwab : No.
Senator EDWARDS: How do you feel about that? Your members would have to be, firstly, confused that since 7 February there has not been an avalanche of charges laid or clubs and individuals coming forward. There has not been. How do you feel now that that has transpired, that this bill proposes to give an organisation which is not trained in criminal investigations the power to ruin your members' lives?
Mr Schwab : I just reiterate what I said. I think your question is a very good one. It is alarming. I note that in the explanatory memorandum to the bill there are no financial implications to it, which means that it is assumed, I understand, that ASADA already has those capabilities, in the eyes of those who have proposed the bill. That is another of the many questions that we believe need to be thoroughly researched and analysed. If it is to be investigating a contractual breach then we are content that ASADA could do that. I am sure, as Mr Speed and other have said, the athletes will fully cooperate in that process. If it is investigating a contractual breach, we can live with that; it makes sense. But the broader issues are canvassed in our submission.
I also commend the submission of the Victorian bar. I think their submission puts, in very clear terms, our concerns about the human rights and the other aspects raised by the bill.
Mr Finnis : We also support the initiatives around information-sharing and extended jurisdiction where there are gaps.
Senator EDWARDS: Sure. We all support getting a good solution.
Senator BERNARDI: Mr Schwab, you were rather critical of the existing drug testing regime and the effectiveness of it. Surely there is a case for extending the role, the investigatory powers and the responsibilities of ASADA to ensure that drug testing is more effective and more efficient. Can you respond to that, briefly.
Mr Schwab : Yes. ASADA is a creature of WADA. We say that the international community which is dealing with these issues has all of the global learning. Let them complete the process and then we can get any bill that is required right, and we can do that at the right time.
Senator BERNARDI: Has your organisation sought any legal advice in respect of what you have described as human rights violations in this bill or some of the difficulties that it may place your athletes in professionally?
Mr Schwab : We have clearly used our extensive legal resources within our community, and we have also relied on those who have made other submissions—but externally, no; not at this stage.
Senator BERNARDI: I am not asking you to table it, but you think there are some legal implications attached to this?
Mr Schwab : Senator Thorp, I think, made the point earlier about international conventions, and I was very pleased to hear that point. Australia is part of an international community and sport is a source of pride in that respect. We spoke of the international convention; many of these human rights that we are talking about are international standards. The international community looks at these things in two ways. I spend a lot of time in Europe representing athletes, and I can inform the committee that in Europe the rights of the athletes are looked at as human rights and as the rights of workers, and they respect those in all of the decision making that is done at the policy level.
CHAIR: We have run out of time. Thank you, very much, gentlemen.
Proceedings suspended from 11 : 01 to 11 : 14