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Australian Sports Drug Agency Amendment Bill 1998
Bills Digest No. 100 1998-99
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official leg al status. Other sources should be consulted to determine the subsequent official status of the Bill.
Australian Sports Drug Agency Amendment Bill 1998
To amend the Australian Sports Drug Agency Act 1990 (the Principal Act) to recast operational and other provisions as subordinate legislation and to establish an Australian Sports Drug Medical Advisory Committee. The amendments also enable the Australian Sports Drug Agency to provide services which test for the presence of substances which may affect competitor’s judgment or safety.
The use of drugs to enhance sporting performance is said to be one of the reasons for the dissolution of the ancient Olympic Games. 1 While doping was known about early in the modern Olympics and on occasion caused athletes to fall ill and die, the first drug tests were not conducted until the Mexico Olympics in 1968. 2 In 1967, the International Olympic Committee (IOC) established a Medical Commission and developed a definition of doping and a schedule of banned substances. This schedule now includes stimulants, beta-blockers, narcotic analgesics, diuretics, anabolic agents and hormones. 3 During the 1960s and 1970s, governments and sporting organisations continued to implement anti-doping practices and ‘drug testing became a more common feature of high-level sporting competition.’ 4
Drug testing programs commenced in Australia in the early 1980s. In June 1988, the First Permanent Conference on Anti-Doping was held in Ottawa. This led to the formation of International Working Group on Anti-Doping in Sport (now superseded) and the adoption of the International Olympic Charter Against Doping in Sport by the IOC in September 1988. In September 1989 the Council of Europe adopted an Anti-Doping Convention.
The Australian Sports Dr ug Agency (ASDA) was established in 1990 following a recommendation of the Senate Standing Committee on Environment, Recreation and the Arts in its report, Drugs in Sport . ASDA’s mission is ‘to provide an independent, high quality and accessible anti-doping program to enable Australian sport to deter athletes from banned doping practices.’ 5 ASDA is an independent statutory body.
The major service provided by ASDA is its sporting event and out-of-competition testing. Testing consists of a Commonwealth Govern ment-funded testing program and a user-pays contract testing program involving professional sports leagues and international sporting organisations. ASDA can collect sample which are analysed by an accredited laboratory (such as the Australian Sports Drug Testing Laboratory). 6 ASDA also maintains a Register of Notifiable Events. The Register records details of positive test results for the presence of banned substances and details of refusals to comply with a request for a sample without reasonable cause. ASDA is obliged under its legislation to notify details of an entry on the Register to the particular competitor, the relevant national sporting organisation and others. 7 In 1997-98, there were 4,313 doping tests conducted and 42 entries were made to the Register of Notifiable Events. 8
ASDA’s other statutory functions include maintaining an up-to-date schedule of drugs and doping methods and permitted levels (if any) and disseminating that information, encouraging sporting organisations to develop and implement anti-doping initiatives, p roviding information and education about drugs in sport, advocating and supporting research into drugs in sport and implementing anti-doping arrangements. 9
The Principal Act has been reviewed on a number of occasions. 10 The most recent review was conducted in 1997 by an independent consultant. The objectives of that review were to:
… recommend amendments to the structure and contents of the ASDA legislation to ensure that:
- the agency has flexibility to respond in a timely manner to the drug testing, procedural and policy requirements of national and international sporting organisations and also State and Territory Governments; and
- any options to be taken up continue to protect athlete rights to natural justice and privacy. 11
Fo llowing the submission of the report to the Minister there were consultations with national sports agencies, State and Territory government agencies and specialist professional groups. ASDA’s 1997-1998 Annual Report records that there was ‘strong and widespread support for the review’s recommendations.’ 12
ASDA generally supports the review’s recommendations, particularly those proposing:
- the removal of detailed operational and procedural matters from the ASDA Act to Regulations and Operational Procedures outside the legislation so as to allow ASDA to meet the policy needs of IFs 13 and NSOs 14 in relation to the provision of drug testing services;
- increasing flexibility with the IOC list of banned substances to recognise that ASDA conducts its sample collection and screening according to IF lists;
- streamlining management processes; and
- establishment of a Medical Advisory Committee for the provision of expert scientific and medical advice in relation to possible positive test results and further to establish a central approval system for athletes with a genuine medical need for the therapeutic use of scheduled substances. 15
Item 8 inserts a definition of the expression ‘doping method.’ This definition includes the manipulation or substitution of human biological fluid, biological tissue or breath in an manner capable of concealing a person’s drug use. It also includes the use of a substance in a way that is capable of concealing drug use.
Item 12 inserts a definition of ‘drug testing service.’ This is a service testing sporting participants for the use of drugs where testing is by means of a sample provided by the participant.
Item 22 replaces the present definition of ‘sample’ in the Principal Act. The existing definition refers to ‘any human biological fluid or tissue.’ The new definition refers to human biological fluid’, ‘human biological tissue (whether alive or otherwise)’ and ‘human breath’.
Item 28 replaces existing subsection 4(1) of the Principal Act with a new subsection giving examples of the circumstances in which ASDA may request a person to provide it with a sample. These include requests made under ‘drug testing schemes’, requests made under contracts entered into by ASDA for the provision of drug testing services and ‘safety checking services’ (see below) and requests made under ‘anti-doping arrangements’. 16
ASDA’s functions are contained in section 9 of the Principal Act. Item 32 repeals existing paragraphs 9(1)(a), (b) and (c) and substitutes replacement paragraphs stipulating that ASDA has the functions conferred on it by a ‘drug testing scheme’ and that ASDA provides drug testing services. Item 34 adds new paragraph 9(1)(e) which provides that ASDA also provides safety checking services. Safety checking is testing to determine whether a person’s physiological or psychological state makes it unsafe for them to participate in a sporting competition—for example, because of their use of alcohol. 17
Item 35 adds two further paragraphs to subsection 9(1) which empower ASDA to undertake collection, analysis and dissemination of information about the use of drugs in sport and the safety of competitors. ASDA will also be empowered to conduct research.
Item 39 repeals existing subsection 9(2) and replaces it. Under existing subsection 9(2) ASDA is prohibited from collecting samples from competitors except in order to analyse those samples for the presence of scheduled drugs or doping methods. New subsection 9(2) enables ASDA to collect samples to determine whether a person has been using ‘drugs’. 18 ASDA will also be able to test samples to determine whether a person’s physiological or psychological state makes it unsafe for them to participate in sporting competitions. New subsection 9(2A) provides that samples or test results obtained for the purposes of new subsection 9(2) can be used by ASDA for research purposes.
Item 41 adds new paragraph 9(6)(h) . Existing subsection 9(6) recites the constitutional framework in which ASDA operates. Thus, the subsection refers to heads of Commonwealth power such as the appropriations power, the executive power and the external affairs power. New subparagraph 9(6)(h)(i) provides that ASDA may perform its functions ‘by way of the provision of a service, if the provision of the service (i) utilises the Agency’s spare capacity.’ The reference to spare capacity probably derives from two High Court cases in which the defence power was held to justify the use of Commonwealth defence factories to supply civilian markets. 19
Item 47 amends section 10 of the Principal Act which deals with ASDA’s powers. New paragraph 10(1)(bb) will enable ASDA to form or participate in the formation of companies.
Item 48 inserts new sections 10A and 10B into the Principal Act. New section 10A relates to the formation of companies by ASDA. ASDA must not form or participate in the formation of a company without Ministerial approval. The Minister must also approve the appointment of company directors and changes to the company’s constitution.
New section 10B enables the Minister to establish a Foundation the purpose of which is to raise money for research and education/information dissemination on drugs in sport.
Item 43 repeals existing subsection 9A(1) and replaces it with two new subsections. Existing subsection 9A(1) states that if a State or Territory law providing for the collection and drug testing of samples from competitors confers powers or functions on ASDA, then ASDA may exercise those powers or functions. The amendments provide that the Minister must give written approval to ASDA before it can exercise powers and functions conferred on it by a State or Territory law.
Item 49 repeals Part 3 of the Principal Act and substitutes a new Part entitled ‘Drug testing schemes.’ Importantly, new subsection 11(1) provides that drug testing schemes can be established by regulation. At present, the Principal Act details how samples are obtained and tested by ASDA.
New section 11(2) defines ‘drug testing schemes.’ These are schemes applying to sporting competitors which set out schedules of drugs and doping methods. Additionally, they authorise ASDA to request samples from competitors, require ASDA to establish and maintain Registers of Notifiable Events and disseminate information from the Registers to relevant sporting organisations. Drug testing schemes must comply with the statement of competitors rights set out in new section 15 .
The amendments ensure that there can be more than one ‘drug testing scheme’—thus recognising the differences ‘between sports in relation to competitors, drugs and doping methods.’ 20 A ‘drug testing scheme’ can specify how a request to provide a sample is to be made 21 and what procedures are to be followed for dealing with a sample. 22 A scheme may also deal with the disclosure of information to sporting administration bodies, 23 the removal of competitor’s name from the Register of Notifiable Events, 24 incidental matters, 25 and empower ASDA to make drug testing orders 26 (see below for further details).
Where a sample from a competitor returns a positive result, new section 13 gives examples of the circumstances in which ASDA may require a competitor’s name to be entered on a Register of Notifiable Events. Thus, where tests conducted by the proposed Australian Sports Drug Medical Advisory Committee (ASDMAC) or an ‘analytical investigatory body’ 27 show that the positive result is not attributable to naturally occurring levels of the substance, ASDA may require that the competitor’s name be entered on the relevant Register.
New section 14 defines the expression ‘positive test result.’ Under new section 14 findings which are defined as ‘positive test results’ may be made either by an ‘accredited laboratory’ or ‘using specified analytical techniques and equipment.’ Under new section 66 an ‘accredited laboratory’ is a laboratory recognised by the International Olympic Committee as ‘… accredited … for the purpose of testing for the use of drugs in sport.’ It may also be a laboratory recognised by a prescribed organisation as complying with International Standards Organisation requirements or ‘the requirements set out in a prescribed document.’ Under present section 66, only laboratories which are recognised by the IOC as accredited laboratories are defined as ‘accredited laboratories.’
New section 15 contains a statement of competitors’ rights. These rights must be complied with by a drug testing scheme. In particular, a competitor has the right to be notified ‘orally or in writing’ of the consequences of failure to comply with an ASDA request to provide a sample. A competitor must be given written notification if an entry is made on a Register of Notifiable Events. And a competitor has the right to ask the Administrative Appeals Tribunal to review a decision to enter their name on the Register. A drug testing scheme may allow a competitor to waive any of their rights under the scheme.
New section 17B relates to the disclosure of information to sporting administration bodies. It provides that a drug testing scheme may require or permit ASDA to disclose information from the Register of Notifiable Events to sporting administration bodies.
New section 17G enables drug testing schemes to empower ASDA to make what are called ‘drug testing orders.’ ‘Drug testing orders’ can cover any matter which can be provided for by a ‘drug testing scheme.’ According to the Explanatory Memorandum, the purpose of ‘drug testing orders’ is to ‘… provide flexibility to … [ASDA] to make timely variations to drug testing schemes without the need to amend the regulations.’ 28 Drug testing orders, like the regulations 29 which prescribe drug testing schemes, must be tabled in Parliament and may be disallowed by either Chamber. 30
New section 17J provides that new Part 3 does not limit ASDA’s powers to contract for the provision of drug testing services or safety checking services, conduct testing on behalf of foreign sporting organisations or request other sporting administration organisations to conduct testing on ASDA’s behalf.
New Part 3B deals with testing by bodies other than ASDA. New section 17ZC enables ASDA to ask other sporting administration bodies to collect samples from competitors and have them tested. In these circumstances, a drug testing scheme may empower ASDA to enter a competitor’s name on a Register of Notifiable Events if the competitor refuses to comply with a request for a sample or tests positive. The expression ‘sporting administration body’ includes the International Olympic Committee, the Australian Sports Commission, a ‘foreign sporting organisation’, a ‘national sporting organisation’, or a ‘sporting organisation’. 31
Under the Principal Act, ‘the Agency’ (ASDA) consists of a Chairperson, Deputy Chairperson, Chief Executive and not more than three or fewer than one other members. All members are appointed by the Minister and must have qualifications or special experience in a field relevant to ASDA’s functions. 32
Items 64 and 65 amend subsection 28(4) of the Principal Act. Section 28 deals with disclosures of interest by ASDA members. Thus, a member will have an interest in a matter ‘if the member has a direct or indirect pecuniary interest in the matter.’ 33 As a result of items 64 and 65 paragraph 28(4)(a), for example, will now read that a member has an interest in a matter ‘if, and only if, the member has a material personal interest in the matter.’
Section 36 of the Principal Act sets out the circumstances in which the Minister may terminate an ASDA member’s appointment. These circumstances are misbehaviour, physical or mental incapacity, failure to disclose an interest, disclosure of confidential information, absence without leave from 3 consecutive ASDA meetings, or engaging in outside employment without prior approval.
Item 67 inserts two new subsections into subsection 36(1). New subsection 36(1A) enables the Minister to terminate a member’s appointment if he or she is of the opinion that the ‘member’s performance has been unsatisfactory.’ New section 36(1B) adds a general power of termination that enables the Minister to terminate all ASDA members on the grounds that ASDA’s performance has been unsatisfactory.
Existing Part 5 o f the Principal Act deals with ASDA’s strategic plans and annual operational plans. These plans must be submitted to and approved by the Minister and be tabled in Parliament within 15 sitting days of Ministerial approval. Additionally, ASDA must comply with these plans as far as practicable and report on compliance in its annual report.
Items 68 and 69 repeal existing subsections 47(4) and 50(2) respectively. As a result, the requirements for strategic plans and annual operational plans to be laid before Parliament are removed. These amendments apply to plans approved by the Minister before the commencement of item 102 .
Item 75 inserts new Part 7A into the Principal Act. New Part 7A provides for a Australian Sports Drug Medical Advisory Committee.
ASDMAC will consist of a Chairman [sic] and no fewer than three or more than six other members [ new subsection 65B(1) ]. Member’s qualifications are set out in new subsection 65B(2) . Members must be registered medical practitioners and it must appear to the Minister that they have knowledge of or experience in sports medicine, clinical pharmacology, endocrinology or a field prescribed by regulation.
New section 65C sets out ASDMAC’s functions. These include functions conferred under a drug testing scheme, advice to ASDA, the Australian Sports Commission and sporting administration bodies and the provision of services, information or advice. Examples of ASDMAC functions are set out in new subsection 65C(2) and include investigating positive test results, approving the use of prohibited drugs for therapeutic purposes and providing information to sporting administration bodies from Registers of Notifiable Events.
Members of ASDMAC are appointed by the Minister for a specified period, not exceeding five years [ new subsections 65D(1) and (2) ].
The Executive Government can, by regulation, prescribe the way in which ASDMAC is to perform its functions. ASDMAC’s meeting procedures may also be prescribed [ new subsection 65E(1) ]. ASDMAC can determine that resolutions are able to be passed without a meeting occurring [ new subsections 65E(2) & (3) ].
New section 65F deals with disclosure of interests by ASDMAC members. An ASDMAC member is taken to have an interest in a matter being considered by ASDMAC in the circumstances set out in new subsection 65F(4) . For example, a member will ‘have an interest in a matter’ if and only if he or she has a material personal interest in the matter. If an ASDMAC member has an interest in a matter being discussed by ASDMAC then the interest must be declared, the disclosure must be minuted and, unless the Minister or ASDMAC otherwise determines, the member cannot participate in ASDMAC deliberations or decisions on the matter.
New section 65G provides that an ASDMAC member must not participate in decisions of sporting administration bodies relating to a matter if he or she has been present when ASDMAC has discussed that matter or taken part in an ASDMAC decision about the matter.
New section 65L sets out the circumstances in which an ASDMAC member’s appointment can be terminated by the Minister. Included in the grounds of termination are a member ceasing to be a registered medical practitioner [a requirement for appointment to ASDMAC under new subsection 65B(2) ], becoming bankrupt or failing to disclose an interest when required to under new section 65F . The Minister may terminate a member if he or she is of the opinion that the member’s performance has been unsatisfactory. Similarly, the entire membership of ASDMAC may be terminated if the Minister view’s ASDMAC’s performance as unsatisfactory.
Members and former members, employees and consultants of ASDA, among others, are prohibited from disclosing confidential information by se ction 67 of the Principal Act. Item 78 inserts new paragraphs 67(1)(da) & (db) which extend the confidentiality obligations to ASDMAC members and consultants.
The Principal Act contains exceptions to the general prohibition on disclosure. One is contained in paragraph 67(3)(b) which provides that information can be disclosed in keeping with a function, power or duty under the Principal Act. Item 79 inserts new subsection 67(3A) which provides that information disclosed by ASDA to a sporting administration body under a contract for drug testing services is an example of a disclosure permitted under paragraph 67(3)(b).
Item 85 adds additional exceptions to the general prohibition contained in subsection 67(3) of the Principal Act. These exceptions include disclosures to sporting administration bodies about an evasion of a request to provide a sample and disclosures about a person with the consent of that person. ASDA can also disclosure information that was provided to it by a sporting administration body about drugs or safety in sport to another sporting administration body.
Item 89 inserts new section 67AA which enables the Australian Customs Service to disclose information to ASDA about the importation of scheduled drugs into Australia. ASDA may use this information when deciding who to ask to provide a sample. A scheduled drug is defined in new subsection 67AA(4) as ‘a drug included in a schedule set out in a drug testing scheme.’
Item 98 inserts new section 67C . If ASDA is aware that a competitor whose name appears on a Register of Notifiable Events receives support from a government or government agency, then ASDA must notify the government or government agency.
2 In 1904 a marathon runner died in the Olympics after taking a mixture of brandy and strychnine. In 1952 amphetamines were used at the Winter Olympics. In the 1950s Soviet athletes used hormones to enhance sporting performance ‘ … and the Americans developed steroids as a response.’ At the 1960 Rome Olympics, a cyclist collapsed and died from an amphetamine overdose. See ASDA, Drugs in Sport , op.cit.
19 See Seddon, N & Bottomley, S ‘Commonwealth companies and the Constitution,’ Federal Law Review , 26(2), October 1998, pp. 272-307. The authors describe the concept of ‘spare capacity’ as unclear and remark that ‘… it would be a very dubious proposition to engage in commercial activity not otherwise referable to a head of power, just because there was supposedly spare capacity’ (at 279). The two cases are Attorney-General (Victoria) v. Commonwealth (1935) 52 CLR 533 and Re KL Tractors Ltd (1961) 106 CLR 318.
27 A definition of ‘analytical investigatory body’ is inserted by item 2 which states that such a body is ‘a body recognised by the International Sporting Federation as a body that is qualified to investigate samples.’
4 February 1999
Bills Digest Service
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