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Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) Bill 2006

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2004 - 2005

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2005

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of Senator the Hon. Rod Kemp, Minister for the Arts and Sport)



AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2005

 

 

OUTLINE

 

 

The Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) Bill 2005 (‘the Bill’) contains transitional provisions and consequential amendments related to the establishment of the Australian Sports Anti-Doping Authority (‘the ASADA”) by the Australian Sports Anti-Doping Authority Bill 2005 (‘the ASADA Bill’).

 

The Bill deals with the consequences of the proposed ASADA which is to be established by virtue of a change in name to the existing Australian Sports Drug Agency (ASDA), established by section 6 of the Australian Sports Drug Agency Act 1990 .  Among other things, the Bill contains provisions dealing with the vesting of assets and liabilities of the ASDA in the Commonwealth (since the ASADA would be a prescribed Agency under the Financial Management and Accountability Act 1997 (FMA Act) and would not hold money or other property in its own name).  The Bill also provides for the continuing operation of ASDA instruments after the commencement of the Bill.

 

As a result of the ASADA Bill, Schedule 1 to the Bill makes a number of consequential amendments to other Commonwealth Acts.  Among other things, these amendments provide for the repeal of the Australian Sports Drug Agency Act 1990 and provisions in the Australian Sports Commission Act 1989 relating to the ASC’s functions and the disclosure of information by the Australian Sports Commission (the ASC) to ASADA.  It also change references in Commonwealth legislation to the ASDA to the ASADA.

 

Schedule 2 to the Bill contains transitional provisions , including provisions dealing with the vesting of assets and liabilities of the ASDA in the Commonwealth in recognition of the fact that the ASADA would be a prescribed agency for the purposes of the FMA Act, and provisions for the continuing operation of ASDA instruments after the commencement of the Bill.  Schedule 2 also contains provisions transferring money appropriated to ASDA to ASADA and for the termination of ASDA members.  In addition, Schedule 2 contains provisions relating to the continued application of the ASDA Act, the disclosure of certain protected information by the ASC to ASADA and annual reports.

 

FINANCIAL IMPACT STATEMENT

 

The Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) Bill 2005 is not expected to have a significant impact on Commonwealth expenditure.   The Bill provides for all of the assets and liabilities of the ASDA to vest in the Commonwealth with effect from the date on which the ASADA is established. 

 



ABBREVIATIONS

 

 

The following abbreviations are used in this explanatory memorandum:

 

 

 

ASADA                      Australian Sports Anti-Doping Authority

 

ASADA Bill               Australian Sports Anti-Doping Authority Bill 2005

 

ASC                            Australian Sports Commission

 

ASC Act                     Australian Sports Commission Act 1989

 

ASDA                         Australian Sports Drug Agency

 

ASDA Act                  Australian Sports Drug Agency Act 1990

 

ASDA Regulations     Australian Sports Drug Agency Regulations 1999

 

ASDA Orders             Australian Sports Drug Agency Drug Testing (Scheme A) Orders                                         1999 and the Australian Sports Drug Agency Drug Testing                                                  (Scheme B) Orders 2000

 

ASDMAC                   Australian Sports Drug Medical Advisory Committee

 

Bill                              Australian Sports Anti-Doping Authority (Consequential and                                              Transitional Provisions) Bill 2005

 

FMA Act                    Financial Management and Accountability Act 1997

 

Minister                       Minister for the Arts and Sport

 

NAD scheme              National Anti-Doping Scheme

 

 



NOTES ON CLAUSES

 

Clause 1 - Short title

 

Clause 1 provides that the Bill, when enacted, may be cited as the Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) Act 2005 .

 

Clause 2 - Commencement

 

Clause 2 provides that each provision of the Bill specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.  Any other statement in column 2 has effect according to its terms.

 

Item 1 of the table provides that clauses 1 to 3 of the Bill (containing the short title, the commencement provision and the provision explaining the operation of the Schedules to the Bill) would commence on the day on which the Bill receives the Royal Assent.

 

Item 2 of the table provides that Schedules 1 and 2 to the Bill, containing various transitional provisions and consequential amendments to Commonwealth legislation, would commence at the same time that clause 20 of the ASADA Bill commences.  Clause 20 of the ASADA Bill, which establishes the ASADA, would commence on a day to be fixed by proclamation or within 6 months beginning on the day the Act receives the Royal Assent, if clause 6 has not commenced by proclamation (item 2 of the table in clause 2 of the ASADA Bill).

 

Clause 3 - Schedule(s)

 

Subclause 3(1) provides that each Act, and each set of regulations, that is specified in a Schedule to the Bill is amended or repealed as set out in that Schedule and that any other item in a Schedule has effect according to its terms.  Subclause 3(2) provides that the amendment of any regulations under subclause 3(1) does not prevent the regulations, as so amended, from being amended or repealed by the Governor-General.

 

Schedule 1 to the Bill provides for the repeal of the ASDA Act and provisions in the ASC Act, Age Discrimination Act 2004 and the Administrative Decisions (Judicial Review) Act 1977 .  It also inserts provisions in the ASC Act dealing with a function of the ASC and disclosure of information by the ASC to the ASADA.  It also inserts a reference to the National Anti-Doping scheme of the ASADA into Schedule 1 of the Age Discrimination Act 2004 .  Schedule 1 to the Bill also changes references in Commonwealth legislation from the ASDA to the ASADA.  In addition, Schedule 1 to the Bill amends the Financial Management and Accountability Regulations 1997 to provide that the ASADA is a prescribed agency for the purposes of the Financial Management and Accountability Act 1997 .

 

Schedule 2 to the Bill contains transitional provisions.  Part 1 of Schedule 2 to the Bill contains the definitions for the Schedule.  Part 2 of Schedule 2 to the Bill provides for the vesting of assets and liabilities of the ASDA in the Commonwealth.  It also provides for the substitution of the Commonwealth as a party to any proceedings to which ASDA is a party. 

 

Part 3 of Schedule 2 to the Bill provides for the continuing operation of ASDA instruments after the commencement of the Bill.  It also provides for the transfer to ASADA of money appropriated to ASDA. In addition, Part 3 of Schedule 2 to the Bill provides that, for contracts entered into by ASDA to provide services , or contracts entered into by ASDA for the ASDMAC to provide services, the functions of the ASADA and ASDMAC include the provision of those services on behalf of the Commonwealth. 

 

Part 4 of Schedule 2 to the Bill is in relation to the appointment of office holders.  It contains provisions ceasing the appointment of the ASDA members and the appointments of the ASDMAC members and Chair.  It also contains provisions to automatically re-appoint the ASDMAC members and Chair.

 

Part 5 of Schedule 2 to the Bill provides for the continued application of the ASDA Act, modifications to the ASDA Act, modifications to the ASDA Regulations, modifications to the ASDA Orders, and transitional functions for the ASADA in relation to ASDA and for ASDMAC.

 

Part 6 of Schedule 2 to the Bill provides for the disclosure of certain information by the ASC to ASADA and for the continued application of Part VIIA of the ASC Act despite its repeal.

 

Part 7 of Schedule 2 to the Bill provides for the first annual report for ASADA and the final annual report for ASDA.

 

Part 8 of Schedule 2 to the Bill makes miscellaneous provisions including for the exemption from stamp duty, acquisition of property on just terms and the power for the Governor-General to make regulations prescribing matters required or permitted by the Schedule or necessary or convenient for carrying out or giving effect to the Schedule.

 

 

Schedule 1 - Consequential Amendments

 

Schedule 1 to the Bill provides for the repeal of the ASDA Act and provisions in the ASC Act, Age Discrimination Act 2004 and the Administrative Decisions (Judicial Review) Act 1977 .  It also inserts provisions in the ASC Act dealing with a function of the ASC and disclosure of information by the ASC to the ASADA.  In addition, Schedule 1 inserts a reference to the National Anti-Doping scheme of the ASADA to Schedule 1 of the Age Discrimination Act 2004 .  Schedule 1 to the Bill also changes references to the ASDA in Commonwealth legislation to references to the ASADA.  In addition, Schedule 1 to the Bill amends the Financial Management and Accountability Regulations 1997 to provide that the ASADA is a prescribed agency for the purposes of the FMA Act.

 

Administrative Decisions (Judicial Review) Act 1977

 

Item 1 - Paragraph 2(b) of Schedule 3

 

Item 1 repeals paragraph 2(b) of Schedule 3 as this would be redundant upon the commencement of the ASADA Bill.

 

 

Age Discrimination Act 2004

 

Item 2 - Schedule 1 (table item 14)

 

Item 2 repeals the item in Schedule 1 (table item 14) as it would be redundant upon the commencement of the ASADA Bill.

 

Item 3 - Schedule 1 (after table item 32)

 

Item 3 inserts a reference to the National Anti-Doping Scheme, which is a scheme under the proposed ASADA Bill, and which replaces the reference to be repealed by Item 2 above.

 

Australian Sports Commission Act 1989

 

Item 4 - After subsection 7(4)

 

Item 4 is a consequential amendment to modify the ASC’s functions.  It inserts new subclause 7(4A).  The amendment is necessary because the ASADA, on its establishment, would have the major responsibility in Australia for anti-doping policy development and monitoring of compliance by sporting bodies with the World Anti-Doping Code.  It is intended that the ASADA would be Australia’s designated National Anti-Doping Organisation (NADO) for the purposes of the World Anti-Doping Code.  It would be one of ASADA’s roles to cooperate with other relevant national and international organisations in promoting a drug free sporting environment and Code-compliant policies and practices.  It is not intended that this amendment have any effect on the ASC’s ability to manage AIS athletes, athletes that it funds, its facilities or its ability to carry out its other functions under the ASC Act.

 

Item 5 - Part VIIA

 

Item 5 repeals Part VIIA because the ASADA, on its establishment, would have the major responsibility in Australia for anti-doping investigations and would therefore be the body that should receive any information from the Australian Customs Service pursuant to the Customs Administration Act 1985 .

 

 

Item 6 - After section 57

 

Item 6 inserts new clause 57A in relation to disclosure of information to the ASADA.  Because the ASADA, on its establishment, would investigate all allegations of anti-doping rule violations under the World Anti-Doping Code, the ASC would require the ability to disclose information, including personal information, to the ASADA relating to:

a)       sports drug and safety matters; or

b)       the performance of the functions of the ASADA.

 

New clause 57A(2) would provide that any personal information so disclosed would be taken to be NAD scheme personal information for the purposes of the ASADA Act.  This provision would mean that such information would be subject to the provisions of the ASADA Bill in relation to the further protection of that information.

 

 

Australian Sports Drug Agency Act 1990

 

Item 7 - The whole of the Act

 

This item repeals the Australian Sports Drug Agency Act 1990 as it would be redundant upon the commencement of the ASADA Bill (subject to certain transitional matters, see Part 5 of Schedule 2 to the Bill).

 

 

Financial Management and Accountability Regulations 1997

 

Item 8 - Part 1 of Schedule 1 (after table item 116)

 

This item inserts item 116A to the table to provide that the ASADA is a prescribed agency for the purposes of the FMA Act.  For those purposes the ASADA comprises the Chair, Deputy Chair and other members of ASADA, the staff of the ASADA and persons whose services are made available to the ASADA by virtue of proposed section 50 of the ASADA Bill.

 

 

Olympic Insignia Protection Act 1987

 

Item 9 - Section 23 (definition of national sporting organisation)

 

This item amends section 23 by omitting reference to the Australian Sports Drug Agency Act 1990 and substituting it with a reference to the Australian Sports Anti-Doping Authority Act 2005 .

 

 

Schedule 2 - Transitional provisions

 

Part 1 - Introduction

 

Item 1 - Definitions

 

Item 1 contains definitions for the purposes Schedule 2.  In particular, ‘transition time’ is defined to mean the commencement of Schedule 2 to the Bill.  Schedule 2 would

commence at the same time that clause 20 of the ASADA Bill commences.  Clause 20 of the ASADA Bill, which establishes the ASADA, would commence on a day to be fixed by proclamation or, if clause 20 has not commenced within the period of 6 months beginning on the day the Act receives the Royal Assent, it would commence on the first day after the end of that period.

 

Part 2 - Assets, liabilities and legal proceedings

 

Item 2 - Vesting of assets of ASDA

 

The effect of item 2 is that on the day on which clause 20 of the ASADA Bill commences, the assets of the ASDA (as are covered by the definition of ‘asset’ in item 1), would automatically become the Commonwealth’s assets without the need for any conveyance, transfer or assignment.  The Commonwealth would become the ASDA’s successor in law in relation to those assets.  The assets of the ASDA would vest in the Commonwealth because the ASADA could not hold the assets covered by item 2 (see clause 22 of the ASADA Bill).  However, the operation of item 2 would not affect any statutory rights of the ASDA vesting in the ASADA (see the definition of ‘asset’ in item 1).

 

Item 3 - Vesting of liabilities of the ASADA

 

The effect of item 3 is that on the day on which clause 20 of the ASADA Bill commences, the liabilities of the ASDA (as are covered by the definition of ‘liability’ in item 1), would automatically become the Commonwealth’s liabilities without the need for any conveyance, transfer or assignment.  The Commonwealth would become the ASDA’s successor in law in relation to those liabilities. 

 

Item 4 - Certificates relating to vesting of assets other than land

 

Item 4 provides for a simplified procedure in connection with the registration of assets other than land vested in the Commonwealth as a consequence of the vesting of the ASDA’s assets in the Commonwealth under item 2.

 

This procedure is as follows:

 

·       The Minister signs a certificate identifying the asset and stating that the asset (see the definition of ‘asset’ in item 1) has become vested in the Commonwealth under item 2.



·       The certificate is lodged with a relevant State or Territory official responsible for the registration of the asset (the ‘asset official’ as defined in item 1).



·       The asset official may deal with and give effect to the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind and make such entries in a register as are necessary having regard to the effect of Part 2 of Schedule 2 to this Bill.

 

Subitem 4(3) recognises that a certificate under this item is not a legislative instrument.  This subitem is by way of clarification that such a certificate is not a legislative instrument.  It is not an exemption to the Legislative Instruments Act 2003

 

 

Item 5 - Substitution of the Commonwealth as a party to certain pending proceedings

 

Subitem 5(1) provides for the substitution from the day on which clause 20 of the ASADA Bill commences (see the definition of ‘transition time’ in item 1) of the Commonwealth for the ASDA as a party to proceedings that were pending in any court or tribunal before that day and were relating to proceedings taken by the ASDA in the exercise of a right that is vested on the Commonwealth by item 2 or in respect of a liability that is vested in the Commonwealth by item 3. 

 

Subitem 5(3) would allow regulations to determine that either subitem 5(1) or (2) applies in relation to a particular proceeding or class of proceeding rather than the other.  This would enable a situation to be addressed where it is more appropriate for the Commonwealth to be substituted in proceedings for the ASDA instead of the ASADA, or vice versa.

 

 

Part 3 - References to ASDA etc

 

 

Item 6 - References in certain instruments to ASDA

 

Subitems 6(1) and (2) provide for the continuing effect, from the day on which clause 20 of the ASADA Bill commences (the ‘transition time’ - see item 1), of an instrument that is in force before the day on which the ASADA is established and that:

 

·          was made by the ASDA; or



·          was an instrument to which the ASDA was a party; or



·          that was given to, or in favour of, the ASDA; or



·          was an instrument under which any right or liability accrues or may accrue to the ASDA; or



·          in which a reference is made to the ASDA;

and

·          the reference is to the ASDA as an entity with a particular power or capacity that the ASDA would not have,

 

as if a reference in that instrument to the ASDA (whether in full or in abbreviated form) were a reference to the Commonwealth. 

 

Subitem 6(3) would allow regulations to determine that either subitem 6(1) or (2) applies in relation to a particular reference or class of references rather than the other subitem.  This would enable a situation to be addressed where it is more appropriate for an instrument to have effect as if a reference to the ASDA in that instrument is a reference to the Commonwealth instead of the ASDA, or vice versa.

 

Item 7 - Provision of services by the ASADA under contract

 

Subitems 7(1) provide for the continuing effect, from the day on which clause 20 of the ASADA Bill commences (the ‘transition time’ - see item 1), of a contract that is entered in to by ASDA and is in force before the transition time and which was in relation to ASDA providing drug testing services, safety checking services or other services relating to sports drug and safety matters including information technology services. 

 

In relation to these contracts, subitem 7(2) provides that the functions of ASADA include the provision of the contract services on behalf of the Commonwealth.

 

Subitem 7(3) provides for the ASADA Act to have effect as if the services provided by the ASADA were provided under paragraph 21(1)(k) of that Act.

 

Subitem 7(4) provides that subitems 7(2) and (3) do not apply if the particular contracted service was to be provided by ASDMAC on behalf of the ASDA.

 

Item 8 - Provision of services by the ASDMAC under contract

 

Subitems 8 (1) provide for the continuing effect, from the day on which clause 20 of the ASADA Bill commences (the ‘transition time’ - see item 1), of a contract that is entered in to by ASDA and in force before the transition time and which was in relation to providing services including drug testing services, safety checking services or other services relating to sports drug and safety matters (including information technology services) but where the ASDMAC was to provide some or all of those services. 

 

In relation to these contracts, subitem 8(2) provides that the functions of the ASDMAC include the provision of the contract services on behalf of the Commonwealth.

 

Item 9 - Transfer of appropriated money

 

Item 9 provides for references to the ASDA in an Appropriation Act (as defined in subitem 9(2)) to be read as references to the ASADA.  This would enable money appropriated to the ASDA in an Appropriation Act to be appropriated to the ASADA.  This provision is required because item 6 does not apply to references to the ASDA in Acts.

 

 

 

Part 4 - Appointments of office holders

 

 

Item 10 - Termination of ASDA appointments

 

Item 10 provides for cessation of the office of members of the ASDA at the transition time.  Subitem 10(3) provides that any members of the ASDA whose memberships are ceased may nevertheless be appointed as an ASADA member.

 

Item 11 - Automatic re-appointment of ASDMAC members other than the ASDMAC Chair

 

Subitem 11(2) provides for ceasing of the office of members of the ASDMAC at the transition time.  Subitem 11(3) provides that members of the ASDMAC whose offices were ceased are nevertheless, by a notional instrument under section 54 of the ASADA Act, taken to have been appointed as ASDMAC members at the transition time.  Subitem 11(4) provides that a notional instrument starts at the transition time and ends at the end of the period specified in the particular member’s original instrument of appointment as a member of ASDA.

 

Item 12 - Automatic re-appointment of the ASDMAC Chair

 

Subitem 12(2) provides for ceasing of the office of members of the ASDMAC at the transition time.  Subitem 12(3) provides that members of the ASDMAC whose offices were ceased are nevertheless, by a notional instrument under section 54 of the ASADA Act, taken to have been appointed as ASDMAC members at the transition time.  Subitem 12(4) provides that a notional instrument starts at the transition time and ends at the end of the period specified in the particular member’s original instrument of appointment as a member of ASDA.

 

 

 

 

Part 5 - Continued application of ASDA Act etc

 

Item 13 - Continued application of ASDA Act etc

 

This item provides for the continued application and modification of certain parts of the ASDA Act, ASDA Regulations and ASDA Orders despite the repeal of the ASDA Act.  It sets out certain “core operative provisions” and provides that despite the repeal of the core operative provisions (see Schedule 1 to the Bill) those provisions, the ASDA Regulations and the ASDA Orders would continue to have effect after the transition time as if the repeals had not happened.  This is subject to items 14, 15 and 16, which would modify the ASDA Act, ASDA Regulations and ASDA Orders for the purposes of item 13. 

 

The purpose of Part 5 is to facilitate as far as possible a smooth transition from the old ASDA system to the new ASADA arrangements.  Items 14, 15 and 16 are intended to ‘switch off’ certain parts of, respectively, the Act, Regulations and Orders that would otherwise continue to have effect pursuant to item 13. 

 

To achieve a smooth transition, it is intended that certain matters commenced by the ASDA prior to the transition date and pursuant to functions, powers and processes set out in the ASDA Act, Regulations and Orders that would not be ‘switched off’ (under Schedule 1 or items 14, 15 or 16), be taken over by the ASADA at the transition date and concluded by the ASADA pursuant to those ASDA functions, powers and processes. 

 

It is intended that the ASADA would generally only exercise powers or perform functions that have ‘carried over’ from the ASDA Act in relation to matters that have already commenced under the old arrangements.  New matters would be dealt with by the ASADA under the ASADA Act and the NAD scheme.  The intention is that once all the old ASDA processes have reached their conclusion, there would be no provisions of the ASDA Act that would continue to have effect.

 

It is intended, however, that the anti-doping rules set out in the NAD scheme be permitted to deal with matters arising prior to the commencement of the ASADA Bill (see subclause 13(2) of that Bill).  Consequently, the ASADA would also have the option of dealing with matters commenced by ASDA prior to transition under the new regime (ie under the NAD scheme).  This would not be prejudicial to athletes or support persons as the anti-doping rules against which possible violations would be assessed would be the rules that existed at the time of the alleged breach (ie not the potentially different anti-doping rules that might exist at the time of the investigation).  It would be the new procedures, which the ASADA would manage under the NAD scheme and which are intended to be largely based on the existing procedures under the ASDA Regulations but with the addition of a more comprehensive investigative function, which might differ.

 

The core operative provisions which, despite the repeal of the ASDA Act under schedule 1, would continue to have effect under item 13 are:

·          Part 3 of the ASDA Act (which relates to drug testing schemes under that Act);

·          Part 3A of the ASDA Act (which relates to testing on behalf of a foreign sporting organisation or under an anti-doping arrangement);

·          Part 3B of the ASDA Act (which relates to testing by other sporting administration bodies);

·          Part 3C of the ASDA Act (which provides for the Minister to request notification in respect of certain matters);

·          sections 66, 66A, 67, 67A, 67C, 72, 72A and 73 of the ASDA Act (which are various miscellaneous provisions);

·          Part 1 of the ASDA Act, to the extent to which it relates to a provision mentioned in any of the above paragraphs; and

·          item 14 of the table in Schedule 1 to the Age Discrimination Act 2004

 

Item 14 - Modifications of provisions of the ASDA Act

 

This item modifies provisions of the ASDA Act for the purposes of item 13.  Its purpose is to switch off certain provisions in the ASDA Act that would otherwise continue to have effect after the transition time. 

 

To facilitate the possible performance by the ASADA (under the ASDA Act) of functions commenced prior to the transition time by ASDA, however, this item provides a number of amendments of a general nature.  These are that:

·          a reference in the provisions of the ASDA Act to the transition time is a reference to the transition time within the meaning of Schedule 2 to the Bill;

·          a reference in the provisions of the ASDA Act to the “Agency” is to be construed as a reference to the ASADA (except in relation to matters that occurred before the transition time);

·          a reference in the provisions of the ASDA Act to the ASDMAC is to be construed as a reference to the ASDMAC as constituted under the ASADA Act (except in relation to matters that occurred before the transition time); and

·          the ASDA Act does not authorise the amendment of a drug testing scheme after the transition time.

 

In addition to these general interpretative amendments, item 14 proposes amendment to particular section of the ASDA Act.  The “switching off” of particular provisions has consequences, in turn, for other provisions (ie it means that they become redundant and are also “switched off”).

 

By way of example, paragraph 14(f) provides for amendment of section 17Y of the ASDA Act.  The section as proposed to be amended (and with the amendment in italics) would read as follows:

“17Y - Request at instance of foreign sporting organisation or under anti-doping arrangement

If the Agency:

(a) has been asked by a foreign sporting organisation to request a competitor to provide a sample for testing; or

(b) is required or permitted under an anti-doping arrangement to request a competitor to provide a sample for testing;

the Agency may , before the transition time, request the competitor to provide a sample for testing.”

The effect of the proposed amendment is that, even though section 17Y would continue in existence pursuant to item 13 of the Bill, the Agency would not be able to request a competitor to provide a sample under section 17Y after transition.  The provision would be “switched off” at the transition time.  The consequences of such switching off would flow to other sections of the ASDA Act.  For example, if the Agency was unable to request a competitor to provide a sample under section 17Y, then the procedures to be followed in relation to such a request (section 17Z) or the power to notify a sporting administration body of matters arising from the making of such a request (section 17ZA) would be redundant.  They, too, would have no application and would be “switched off”.  

 

The item also provides for other modifications to be able to be prescribed by regulation should that become necessary.

 

Item 15 - Modifications of the ASDA regulations

 

This item modifies provisions of the ASDA regulations for the purposes of item 13.  Its purpose is to switch off certain provisions in regulations that would otherwise continue to have effect after the transition time. 

 

To facilitate the possible performance by the ASADA (under the ASDA Act) of functions commenced prior to the transition time by ASDA, however, this item provides a number of amendments of a general nature.  These amendments are that:

·          a reference in the ASDA regulations to the transition time is a reference to the transition time within the meaning of Schedule 2 to the Bill;

·          a reference in the provisions of the ASDA regulations to the “Agency” is to be construed as a reference to the ASADA (except in relation to matters that occurred before the transition time);

·          a reference in the provisions of the ASDA regulations to the ASDMAC is to be construed as a reference to the ASDMAC as constituted under the ASADA Act (except in relation to matters that occurred before the transition time); and

·          the ASDA regulations does not authorise the amendment of the ASDA Orders after the transition time.

 

In addition to these general interpretative amendments, item 15 proposes amendment to particular regulations.  The “switching off” of particular provisions has consequences, in turn, for other provisions (ie it means that they become redundant and are also “switched off”).

 

By way of example, paragraph 15(w) provides for amendment of regulation 71 of the ASDA regulations.  The regulation as proposed to be amended (and with the amendment in italics) would read as follows:

“REG 71 - Approvals

(1)  The Agency may, before the transition time, on application made in accordance with regulation 72, approve a courier in writing.”

The effect of the proposed amendment is that the Agency would not be able to approve a courier after the transition time and the provision would be “switched off” at the transition time.  The consequences of such switching off would flow to other regulations.  For example, regulation 82 (prescribing the form of application), Divisions 4.2 (Cancellation of approvals) and 4.3 (Reconsideration and review) would become redundant.  This is an illustrative example of the purpose and effect of item 15.

 

The item also provides for other modifications to be able to be prescribed by regulation should that become necessary.

 

Item 16 - Modifications of the ASDA drug testing orders

 

Item 16 provides for the modification of the ASDA Orders for the purposes of item 13.  It provides that, for the purposes of that item a reference in the ASDA Orders to the “Agency” is to be construed as a reference to the ASADA (except in relation to matters that occurred before the transition time).  Because of the low level detail of the ASDA Orders no specific amendments are required as all the Orders would become redundant.  However, the item also provides for other modifications to be able to be prescribed by regulation.

 

Item 17 - ASADA’s transitional functions

 

This item provides that the ASADA’s functions include any functions conferred it by either a provision of the ASDA Act, the ASDA Regulations or the ASDA Orders, continued in effect by item 13.

 

It is intended to ensure that the ASADA would be able to exercise any power so conferred in addition to the functions that would be conferred by the ASADA Bill

 

Item 18 - ASDMAC’s transitional functions

 

This item provides that the ASDMAC’s functions include any functions conferred it by either a provision of the ASDA Act, the ASDA regulations or the ASDA Orders, continued in effect by item 13.

 

It is intended to ensure that the ASDMAC would be able to exercise any power so conferred in addition to the functions that would be conferred by the ASADA Bill. 

 

Item 19 - Disclosure of NAD scheme personal information

 

Item 19 provides that the disclosure of personal information, which is obtained in relation to or which relates to the administration of the NAD scheme, for the purposes of the ASDA Act, ASDA Regulations and ASDA Orders as they remain in effect by item 13, would be an exception to the prohibitions in subsection 71(1) of the ASADA Act.  Such disclosures are authorised by law.

 

 

Part 6 - Continued application of ASC non-disclosure provisions

 

Item 20 - Continued application of non-disclosure provisions - ASC officials

 

Item 20 applies in relation to any protected information, within the meaning of Part VIIA of the ASC Act, disclosed to the ASC prior to the transition time (the day on which the ASADA is established). 

 

The Bill repeals part VIIA of the ASC Act.  Item 20 provides that, despite the repeal, Part VIIA of the ASC Act continues to have effect after the transition time (in relation to the protected information) as if the repeal had not happened.

 

Item 20 is intended to take account of the fact that the ASC may continue to hold protected information received from the Australian Customs Service pursuant to the provisions of Part VIIA of the ASC Act and the Customs Administration Act 1985 .  Item 20 would ensure that such information would continue to receive appropriate protection under part VIIA.

 

Item 21 - Disclosure of ASC information to the ASADA

 

The effect of item 21 is to allow the ASADA to request the ASC to disclose to the ASADA certain information that was obtained by the ASC prior to the transition time.  The ASC would be required to comply with such a written request.

 

For item 21 to apply, the information must relate to a sports drug and safety matter or be otherwise relevant to the performance of the functions of the ASADA (in addition to being obtained by the ASC prior to the transition time).

 

Subitem 21(4) provides that Part VIIA of the ASC Act (which would be repealed by item 5 of Schedule 1 to the Bill, but would continue to have effect because of item 20 of Schedule 2 to the Bill) does not apply to disclosure of protected information in compliance with such a request by the ASADA to the ASC.  This requirement is necessary so that all information be readily available to the ASADA which would be “standing in the shoes” of the ASC for certain functions.  It is important that the ASADA be in a position to expediently investigate any alleged anti-doping rule violations.

 

Subitem 21(6) provides that any personal information so disclosed would be taken to be NAD scheme personal information for the purposes of the ASADA Act.  This provision would mean that such information would be subject to the provisions of the ASADA Bill in relation to the further protection of that information.

 

Part 7 - Reporting obligations

 

Item 22 - First annual report for the ASADA

 

The effect of item 22 is that if the ASADA is established in April, May or June of a financial year (referred to as the ‘first year’ in item 22), the ASADA would not need to prepare and provide to the Minister as soon as practicable after 30 June of that financial year, an annual report for the first year under clause 74 of the ASADA Bill. 

 

However, when the ASADA prepares its first annual report, the report would need to cover the period commencing on the ASADA’s establishment and ending at the end of the next financial year.  For example, if the ASADA were established on 1 April 2006 (as a result of clauses 3 to 79 of the ASADA Bill having been proclaimed to commence on that day), ASADA’s first annual report would need to relate to the period 1 April 2006 to 30 June 2007.

 

However, if the ASADA were established on 1 March 2006, it would need to prepare a report on its operations for the period commencing on 1 March 2006 and ending on 30 June 2006 as soon as practicable after 30 June 2006, as required by clause 74 of the ASADA Bill.

 

Item 23 - Final annual report for ASDA

 

The members of the ASDA are currently required under section 9 of the Commonwealth Authorities and Companies Act 1997 to prepare an annual report in relation to the operations of the ASDA.  The annual report must also deal with the matters specified in section 63 of the ASDA Act. 

 

If the ASADA is established during the financial year that started on 1 July 2005, the ASADA would need to prepare an annual report (for the ASDA) for the period starting on 1 July 2005 and ending immediately before the transition time (the day on which the ASADA is established).  If the ASADA is established on 1 July 2006, it would need to prepare an annual report for the ASDA for the 2005-2006 financial year.

 

 

Part 8 - Miscellaneous

 

Item 24 - Exemption from stamp duty and other State or Territory taxes

 

Item 24 provides that stamp duty and other State or Territory taxes would not be payable in respect of the vesting of an asset or liability of the ASDA in the Commonwealth under Schedule 2 to the Bill, or the operation of that Schedule in any other respect (an ‘exempt matter’) or anything connected with such a matter.

 

The Minister would be able to certify in writing that a specified matter is an exempt matter or that a specified thing was connected with a specified exempt matter.  In all courts, and for all purposes (other than for the purposes of criminal proceedings), the Minister’s certificate would be prima facie evidence of the matters stated in it.

 

Item 25 - Constitutional safety net

 

Item 25 provides that if the operation of Schedule 2 to the Bill would result in the acquisition of property from a person otherwise than on just terms (within the meaning of paragraph 51(xxxi) of the Constitution) the Commonwealth would be liable to pay reasonable compensation to the person in respect of the acquisition.

 

If the Commonwealth and the person cannot agree on the amount of the compensation, the person would be able to institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.

 

Item 26 - Certificates taken to be authentic

 

Item 26 provides that a document that appears to be a certificate issued under Schedule 2 is taken to be such and taken to have been properly given unless the contrary is established.  This is to ensure that effect is given to documents that appear to be certificates given by the Minister unless it is shown that a document is not a certificate or was not properly given by the Minister.  For example, Item 4 refers to certificates that may be signed by the Minister and given to an assets official.  Item 24 refers to a certificate that may be made by the Minister to the effect that a specified matter is an exempt matter for the purposes of that item. 

 

Item 27 - Delegation by Minister

 

Item 27 provides for the Minister to be able to delegate, in writing, all or any of his or her powers under Schedule 2 to the Bill to the Secretary, or an SES officer, in the Department (currently the Department of Communications, Information Technology and the Arts - see Acts Interpretation Act 1901 , s. 19A).  The delegate would exercise these powers subject to the Minister’s directions.

 

Item 28 - Regulations

 

Item 28 provides that the Governor-General may make regulations prescribing matters required or permitted by Schedule 2 to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to Schedule 2.

 

In particular, to deal with unforeseen circumstances, regulations would be able to be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by the Bill or the enactment of the Bill or the ASADA Bill.