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Wednesday, 6 February 2013
Page: 316

Senator JACINTA COLLINS (VictoriaManager of Government Business in the Senate and Parliamentary Secretary for School Education and Workplace Relations) (16:10): I present the explanatory memorandum and I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Australian Sports Anti-Doping Authority Amendment Bill 2013 will strengthen Australia's anti-doping regime and in particular ensure the Australian Sports Anti-Doping Authority (ASADA) is better equipped to effectively detect and address doping in sport.

The recent Review of Cycling Australia conducted by the Hon James Wood AO QC has demonstrated that there is still plenty of work to be done in the ongoing effort to address the challenges of doping in sport.

This bill I introduce today responds to the recommendations contained in Mr Wood's Report, but it goes further, reflecting the Governments strong stance against doping in sport.

Australians recognise that sport plays a critical role in improving health, building communities and promoting important life values such as fairness, ethical behaviour, teamwork and determination.

With such attributes ingrained in the Australian sporting psyche, the Australian public expects our sporting champions to achieve success through their ability and dedication rather than artificially through the use of performance enhancing substances.

Intense media speculation around recent revelations of systemic doping in international cycling have unfortunately highlighted that public confidence in sport can be easily undermined by actions that bring into question the integrity of sport.

Doping offences have traditionally been detected through the testing of blood and urine samples to identify the presence of a banned substance. The latest revelations in cycling have demonstrated that doping can be well organised and systemic in parallel with existing comprehensive testing regimes. With doping becoming increasingly sophisticated, it is less likely that anti-doping rule violations will be detected through analytical testing means alone.

It is also the case that a number of the behaviours which constitute an anti-doping rule violation in the World Anti-Doping Code can only be detected and substantiated through non analytical means, that is through investigations and the collection of evidence.

While testing athletes to detect the use of prohibited substances will remain a valuable and fundamental means of addressing doping in sport, increasingly anti-doping organisations will need to have the capacity to undertake effective investigations and intelligence gathering activities. Testing will of course continue to be an important tool in the conduct of these investigations and intelligence gathering activities.

The United States Anti-Doping Agency (USADA) was only able to establish the case against the US Postal Service team, including Lance Armstrong, because it had collected sufficient evidence through its non-analytical investigation activities. USADA was able to collect sworn testimony from 26 people and gain access to documentary evidence that included financial payments, emails, scientific data and laboratory test results.

ASADA already operates a detection program in Australia where a significant proportion of anti-doping rule violations are identified through an integrated strategy of testing, investigations and intelligence gathering.

This proportion has been growing, however, ASADA currently has no power to require somebody to attend an interview or produce documents and must rely on their cooperation to participate or even turn up for an interview. This means that athletes and their support personnel under suspicion have little incentive to assist ASADA in their investigations or intelligence gathering activities.

The absence of such powers limits the capacity of ASADA to investigate allegations and suspicions of doping. This bill will provide ASADA with a power, subject to appropriate protections, to compel persons to attend an interview with an investigator nominated by the ASADA Chief Executive Officer and to produce information or documents relevant to any inquiry that it is conducting under the National Anti-Doping Scheme which outlines the relevant procedures prescribed in the ASADA regulations.

Furthermore, this bill provides for the National Anti-Doping Scheme to authorise the ASADA Chief Executive Officer (CEO) to issue a disclosure notice requiring a specified person to attend interviews with ASADA investigators; and/or provide documents or things that are needed in order to administer the Scheme. While it is expected that most disclosure notices will be for an interview, the ASADA CEO would also have the authority to request any type of document or thing that would help ASADA in its work.

Importantly, a disclosure notice can go to anyone; not just athletes or their support personnel. This recognises that people outside the jurisdiction of Australia's anti-doping regime may have information that would assist ASADA to identify and sanction those who commit anti-doping rule violations.

Failure to comply with a disclosure notice would render the person subject to a civil penalty. A maximum civil penalty of 30 penalty units ($5,100) would apply for failing to comply with a disclosure notice. The proposed amendments will also provide for the establishment of an infringement notice scheme in the regulations. This scheme will allow a person who is alleged to have contravened the requirements of a disclosure notice to pay a fine as an alternative to civil proceedings against them in a court. The maximum penalty that can be imposed for such an infringement would be $1020.

I have also asked ASADA and the National Integrity in Sport Unit within the Office for Sport to work with our national sporting organisations to amend their Codes of Conduct and/or anti-doping policies so that all athletes and their support personnel are required to co-operate with an ASADA investigation. National sporting organisations will be required to apply an appropriately strong sanction (such as significant periods of ineligibility) for those who fail to do so.

While ASADA needs to be able to properly investigate possible breaches of anti-doping rules, it is also important that the rights of athletes are adequately protected. Under the proposed amendments, the ASADA CEO can only issue a disclosure notice if they have reasonable belief that a person has information, documents or things that may be relevant to the administration of the NAD scheme. In other words, the CEO cannot issue a disclosure notice unless there is an apparent need to do so.

Another protection is the inclusion of 'use' and 'derivative use' immunities in the bill. While someone will be required to co-operate with ASADA, any information gathered through the issuing of a disclosure notice will be inadmissible as evidence against the person in a criminal proceeding, unless the person provides false or misleading information. Evidence will also be exempt from use in a civil proceeding except those proceedings arising from the Australian Sports Anti-Doping Authority Act 2006 or regulations made under the Act.

A key strength of ASADA's investigative and intelligence gathering function has been the current information sharing arrangements that exist with Australian law enforcement agencies and other regulatory authorities such as the Australian Customs and Border Protection Service; and the Therapeutic Goods Administration. Co-operation between such agencies has contributed significantly to the identification of many more doping offences than what may otherwise have been the case.

It is proposed to build on these relationships by amending the Australian Postal Corporation Act 1979 to facilitate the sharing of information between ASADA and Australia Post. In cases where ASADA is aware that substances prohibited under our anti-doping arrangements are being sent to a post office box, Australia Post can assist ASADA by confirming to whom the package has been sent.

The bill also targets the operation of the Anti-Doping Rule Violation Panel. The Panel's current role is to review the evidence that ASADA presents to it and determine whether a possible anti-doping rule violation has been committed. Until now, the Panel would also make a recommendation to the national sporting organisation as to the length period of ineligibility for a violation. The national sporting organisation would, using the process specified in its anti-doping policy, then make a decision on the violation.

Under this arrangement however, athletes and support personnel accused of committing an anti-doping rule violation often opt to withhold the information that may justify a lesser sanction from the Panel and present this information at the relevant tribunal convened to hear the matter. In other words, athletes would prefer to "keep their powder dry" until the hearing is conducted.

Given that the Panel is not being presented with full information when making recommendations on the length of a sanction its capacity to add value to the process is compromised. Therefore it is proposed that the Panel cease this role. The Panel would be left to confirm that an anti-doping violation has possibly occurred but each sport would be left to directly determine sanctions in accordance with the provisions laid out in the World Anti-Doping Code and its anti--doping policy.

To still provide the sport with assistance, it is also proposed that the ASADA CEO be authorised to engage with sports directly on the issue of sanctions, based on providing information relevant to the particular case. To maintain the integrity of this process, ASADA has the right to appeal to the Court of Arbitration for Sport if it does not agree with the sanction imposed by the sport.

The bill will also clarify the conflict of interest provisions within the Act in relation to the Panel and the Australian Sports Drug Medical Advisory Committee.

Finally, the bill provides clarity that the eight-year statute of limitations specified in the World Anti-Doping Code applies in Australia's anti-doping arrangements. Action against a person with regards to a possible doping offence must commence within eight years of the date the offence was alleged to have occurred.

Sport has many levels of involvement. Whether it is the person playing in the local competition, the person supporting their favourite team, the person training for the next international competition or the thousands of people employed in sporting businesses that deliver products and services around the world, sport touches us all. The very essence of sport is that it promotes important life values such as fair play, determination, teamwork and friendship.

Sport has the capacity to improve lives, build communities and empower the marginalised in society.

Doping merely serves to undermine the integrity of sport and compromise the contribution that sport can make to society.

The message is clear: with these amendments, athletes and support persons who are involved in doping have a greater chance of being caught. People will have no option but to assist ASADA in undertaking its' investigations and intelligence activities.

I am sure that, for the thousands of athletes and support persons who compete in sporting events based on their own ability and training, this will not be a problem.

I commend the bill to the Senate.

Ordered that further consideration of the second reading of this bill be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.