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Australian Sports Anti-Doping Authority Amendment Bill 2013
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Stephens, Sen Ursula (The ACTING DEPUTY PRESIDENT)
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Di Natale, Sen Richard
Australian Sports Anti-Doping Authority Amendment Bill 2013
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Monday, 24 June 2013
Senator DI NATALE (Victoria) (21:25): I welcome the opportunity today to speak to the Australian Sports Anti-Doping Authority Amendment Bill 2013. The revelations earlier this year following a 12-month investigation by the Australian Crime Commission that organised crime is behind the increase in the use of banned performance enhancing drugs across our major sporting codes, and possible attempts to fix matches and manipulate the betting markets, came as a shock to many people. It was labelled the blackest day in Australian sport by some and it was in part the catalyst for the legislation we are debating today.
We are told the bill is important to protect sport from the influence of organised crime and from the drug cheats. It is important that we, as part of this process, protect what is called 'the integrity of sport'. I have heard that phrase used a lot over recent months and I have really tried to understand what that means. To understand what it means, you really need to reflect on what sport means to most Australians.
Sport has always been a huge part of my life. My mum reckons I was an active kid and it was my love of sport that kept both of us sane: swimming at the local swimming club, street cricket matches, club soccer, club footy, club cricket—all of those things of a weekend. It was an experience that is no different to the experience of many Australian kids.
We are a sporting country; we love to play sport; we love to watch sport. Often the success of our weekend at home depends on the success of our local footy team. Some people do worry that we are too obsessed with sport and that our obsession clouds out more important, more noble pursuits. But it is a view that ignores a lot of really good things about sport: the huge health benefits; the lessons from working in a team environment, learning to respect rules and the umpire's final decision; and the role it plays in bringing communities together. And sport, above all, is a great leveller. It does not matter who you are, it does not matter where you come from; ultimately, sport brings people together just to share in the sheer joy of it all.
Some people think of this as an overly romantic view and that somehow by accepting that view you are ignoring what are some of the many threats to Australian sport. But I am very aware of those threats. One avenue by which the integrity of our sports is threatened is via the connection with gambling. I have made no secret of my concern at the increased number of gambling services around live and televised sport in this country. I know many people right around the country share my concerns that a professional sporting activity somehow now becomes an interactive gambling experience. It is something we are working very hard to change.
One of the greatest threats to the integrity of sport is the use of illegal performance-enhancing substances. It is a threat because the very essence of sport is that it is an even contest—a contest between athletes who, as a result of their innate abilities, hard work and determination, are pitted against each other on a level playing field.
Some people argue that this is all too difficult—it is too hard—and that we should simply lift the ban on performance-enhancing drugs and just ensure that the playing field is level and that everybody gets access to the same drugs. They say that we are fighting a losing battle and so that is the approach to take. But it is a very dangerous argument. Imagine the choice that we would be giving to athletes: participate in this pharmacological arms race and put yourself at risk of very serious harm or give up a competitive edge to an opponent. We really need to do what we can to try and address the problem.
It is a difficult problem, because the temptation to use banned substances to get an edge over the competition has always been too much for some people. I can imagine what it would be like to have spent your whole life working towards a goal and then to have that achievement snatched away from you because an opponent had an unfair advantage. Australians rightly take doping very seriously. We have a strong sense of fairness. We understand that there is no room for drug cheats in Australian sport.
There are some people who deliberately, knowingly and with great planning and preparation set out to cheat in an effort to get an unfair advantage. Those people deserve to be punished. But it is also important to acknowledge that that is really only one part of the problem and that, in fact, doping can be much more subtle and much more insidious. It is a much bigger problem than simply that of unethical athletes willing to cross the line just to get an unfair advantage. We have to accept that modern sport is an industry. It is big business. Many athletes are not sole traders but are part of larger team environments. They are surrounded by coaches, trainers, doctors, nutritionists, physios, sports scientists and so on. And all of them are under tremendous pressure to perform. Among that team of people there will sometimes be disagreement on where the line between doping and legitimate sports science is drawn.
Even when you consider the money at stake and the huge amount of public scrutiny, it is hard to imagine the pressure on a young athlete. Imagine that you are a 17-year-old kid from the country. You have finally achieved your dream of playing AFL football. You find yourself in a team environment in which particular practices appear to be the norm. You would not expect that individual to be abreast of the latest in sports science. In fact, as a medical doctor it is hard enough to keep up with this stuff. Some of the substances that have been reported in the papers are things that I have never heard of and I really have very little information about whether they are legal or illegal or, in fact, whether they are putting people at risk of serious harm. The difference between a peptide and a protein milkshake might not be as clear to some as it should be.
It is true that athletes will always bear ultimate responsibility for what goes into their bodies and pay the price when mistakes are made. But if athletes and entire teams are found to have wandered into the doping grey areas and beyond, it is as much an organisational failure as a case of individual cheating by athletes.
So far, anti-doping efforts have focused on testing. Testing is of course the clearest and most obvious way of identifying a drug cheat in any sport. But because of the need for constant randomised testing it is also important to acknowledge that elite athletes make a huge sacrifice for their sport in terms of their personal privacy. Their whereabouts are constantly monitored. They suffer various indignities in delivering samples. But it is a sacrifice that they make willingly. The athletes are as concerned as anyone about ensuring that there is a level playing field.
But testing is only ever going to be a small part of the answer, because there are always people willing to push the boundaries who will be one step ahead of the testing. This is a very sophisticated and organised process. If people set out to cheat deliberately, there is every chance that they will not be caught through testing. It is thus important to shift our efforts beyond testing to a process of investigation. The Greens agree that there is a very important role for ASADA outside the testing regime.
It is these long and detailed investigations that will uncover the real story behind many cases of doping, both deliberate and inadvertent. And it is not just about the athletes: it is about the suppliers, the support staff and, in some cases, the involvement of organised crime.
Doping in sport is an issue that has always plagued professional sport and it will continue to do so. That is particularly true as the stakes in professional sport get higher every year. The search for an edge will become all the more intense. We will never be completely free of doping. But we can have certainty that it is only a very small part of the sporting landscape. We need to recognise the intense pressure that our athletes are under, pressure which stems from the huge amount of national attention, the billion dollar revenues and the winning-at-all-costs culture that has developed in many of our sporting codes. A big cultural shift is required. It does not appear to be on the horizon or as if it is going to happen any time soon. But, in the meantime, we must do what we can to stem the problem.
Fortunately, Australia can boast in ASADA an agency that has high standards and an excellent reputation. We now have John Fahey as the head of the World Anti-Doping Authority. We are doing well in this space. This bill, I hope, will go some way to furthering the ability of Australian authorities to conduct the sophisticated investigations that we need. But we need to do much more. It is important that we also tackle those broader cultural issues around our major sporting codes.
The bill amends the Australian Sports Anti-Doping Authority Act to grant new powers to ASADA. For the first time they will have the power to compel people to attend interviews, and those who refuse to comply with a disclosure notice from the authority's CEO face fines in the many thousands of dollars. A person issued with a disclosure notice can be required to attend an interview and provide documents and other information. Also, the bill, as written, compels a person who has been called in to provide some evidence. I accept the justification for this provision. I understand it, but it is also important that those provisions are viewed in the context of the impact they have on individual liberties.
If the authority has good reason to suspect something is going on that is against the code, the investigation can be hampered if individuals refuse to cooperate. We are all well aware of some of the issues that have recently transpired with scandals around our major sporting codes, and cycling as well. It is true that we do need to get to the bottom of the issue, and I understand the reasons for granting ASADA increased powers.
But it is also our job in this parliament to examine any expansion in the powers of any government agency. While we want the sporting authorities to be able to carry out their mandate of safeguarding integrity in sport, the rights of the athletes and the support personnel also have to be safeguarded. During the course of the inquiry we heard many concerns from the community about some aspects of the bill. The powers were described as broad and sweeping. We heard the legal fraternity describe some of their concerns around the implications for justice. The Commercial Bar Association of Victoria described the provision granting coercive powers as an unjustified infringement of the athletes' human rights. We also heard concerns from the Scrutiny of Bills Committee, the Parliamentary Joint Committee on Human Rights and others about issues such as privacy, the reversal of the onus of proof, the potential to compromise a fair trial and the unprecedented nature of coercive powers granted to ASADA.
It is my view that the privilege against self-incrimination is fundamental in our democratic system of justice and forcing an athlete or support personnel to give evidence, even if it could compromise their own career, does fly in the face of this principle. Serious concerns were raised about this specific issue. Subjects of a disclosure notice who are asked to produce documents have to prove that they do not have them. The onus of proof is then placed on the athlete, and that needs careful consideration. I am also worried about doctor/patient confidentiality and whether that could be compromised if an athlete's doctor is brought in for questioning. The line between doping related and general health matters can be a fine line to draw.
The Australian Greens do share some of these concerns. When I originally was confronted with this bill, in my capacity as the Greens spokesperson for sport, I thought we would be dealing with a non-controversial piece of legislation, particularly in the context of the recent Australian Crime Commission report. But it soon became clear that the bill does represent a major expansion of ASADA's investigative powers and does in fact touch on some very fundamental legal principles.
We do not want to unfairly reduce the freedoms of Australian sports people, so we have to satisfy ourselves that these new powers will have an impact on Australian sport and then balance that against the infringement of the individual liberties of Australian sportspeople. It has been represented to me that these new powers could have the perverse effect of decreasing cooperation with investigations by complicating the relationship between athletes and ASADA, and that also needs to be considered.
I have weighed up these objections carefully. I am very concerned about the burden on athletes. I do understand that athletes already make huge sacrifices in their sport and that they are subject to regular and random testing under extremely intrusive circumstances, as it currently stands. Further singling out athletes with coercive powers might be a step too far.
To be satisfied that these new coercive powers were necessary we needed to be sure that there was evidence of people not cooperating and that the powers would make a difference. Part of that discussion, with Australia's role as a world leader in anti-doping, was that WADA did not request these changes, so we needed to make sure they were appropriate in the Australian context.
To decide where the balance lay between protecting the integrity of sport and protecting individual liberties and human rights, we decided that the bill needed some checks and balances. We decided it was not appropriate to abrogate the privilege against self-incrimination—that athletes have as much right to this protection as a suspect fronting the police for an interview in a criminal matter. For this reason we have proposed amendments that make it clear the subject of a disclosure notice has the right to remain silent should they so choose.
With regard to the reversal of the onus of proof regarding documents, we accept this if the onus can be satisfied with a statutory declaration. We understand that the penalty of perjury should be enough of a disincentive. We propose amendments to the bill to make it clear that a statutory declaration will suffice.
In response to the concerns regarding oversight of the ASADA CEO's use of new coercive powers, we consulted with the government on an amendment that would require the consent of additional members of the Anti-Doping Rule Violation Panel. We believe that coercion is a serious power and we would not agree to grant it without this level of oversight. We also propose an amendment that makes it clear a doctor cannot be brought in to give evidence unless there is reasonable suspicion they have been involved in a violation of the anti-doping rules.
In conclusion, the Australian Greens do place a high value on sport and the integrity of sport. Recent developments have raised serious questions about what is going on inside our major sporting codes. Ultimately we do accept the argument that ASADA needs further powers to expand its investigations into doping, but those powers need to be limited and they need to be fully compatible with fundamental legal and human rights that we value so highly in this country.
Finally, I want to say that it is important that we do not look just at the athletes but also at the support structures around the athletes. Where there is a problem, it needs to be traced all the way down the line, because ultimately this is a shared responsibility. At the end, we need to accept that it is not just through investigation but also by changing the current culture—the 'winning at all costs' culture—that we will make the greatest gains.
The ACTING DEPUTY PRESIDENT ( Senator Stephens ): Order! The time allotted for consideration of this bill has now expired. The question is that this bill be now read a second time.
Question agreed to.
Bill read a second time.