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Thursday, 14 February 2019
Page: 10220


Senator RUSTON (South AustraliaAssistant Minister for International Development and the Pacific) (12:02): I table an explanatory memorandum relating to the bill 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 Government strongly supports a fair, safe and healthy environment for all athletes from all nations and is committed to clean sport. Not only is doping a serious risk to an athlete's health and wellbeing, at its foundation it cheats and debases all that is good about sport and that we hold close to our hearts - from improved health through physical endeavour to the pursuit of athletic excellence and the values it teaches.

Doping is a pronounced and current threat to sport, with successive national and international doping scandals over recent years undermining public confidence in the legitimacy of the sporting contest.

International cooperation and coordination of efforts in the fight against doping continue to improve. But even as the anti-doping effort becomes more sophisticated, making it harder for dopers and those who facilitate doping ' to get away with it', doping among athletes at all levels continues.

As part of the Review of Australia' s Sports Integrity Arrangements (the Wood Review), it was found that increasingly sophisticated doping is harder to detect by urine and blood sample analysis alone, with intelligence and investigations now indispensable in the detection of doping incidents and programs.

Accordingly, the Wood Review found that a detection program involving both sample analysis and intelligence-led investigations is required for the enforcement of anti-doping rules, as a foundation for preventive measures and for the pursuit of non-analytical doping cases. The Wood Review also found that the current Australian anti-doping legislative framework requires reform to enable national anti-doping capability to effectively address modem doping threats.

This Bill to amend the Australian Sports Anti-Doping Act 2006 is the first step in implementing the Wood Review recommendation that Australia's anti­ doping legislative framework be strengthened to ensure that it is robust, efficient and responsive to the contemporary threat environment.

Turning now to the key provisions of the Bill.

Streamlining of the administrative phase of the statutory Anti-Doping Rule Violation process

The current anti-doping rule violation process is bureaucratic, inefficient and cumbersome. Past casework has also shown the process can prove confusing, repetitive and lengthy for those persons subject to anti-doping rule violation assertions. Failure to provide prompt and efficient resolution of anti-doping matters can be a significant issue for athletes in particular, who have time- . limited sporting careers. This Bill will remove the unnecessary steps and delays in the pre-hearing process and therefore assist to ensure matters may be heard in a timely and efficient manner. Participants will retain their rights to have the assertion heard by a tribunal (including the proposed independent National Sports Tribunal), which will act as the final arbiter of whether an anti-doping rule violation has been committed.

Facilitating better information-sharing between ASADA and National Sporting Organisations

ASADA collects information for the purposes of administering the ASADA Act and Regulations and when this information relates to the affairs of a person and is capable of identifying that person, the information is considered to be protected information. Quite properly, the ASADA Act currently restricts the on-disclosure of protected information. While the information is held by an 'entrusted person' (essentially, an employee or agent of ASADA), the entrusted person can resist the production or disclosure of protected information, even under subpoena.

Protected information may also be disclosed by ASADA to a national sporting organisation for the purposes of the ASADA Act, including information relating to possible anti-doping rule violations. This is a clear intention of the Act, given the role of sports in the anti-doping framework. However, under current arrangement this risks exposure of sensitive personal information.

These amendments will facilitate this required information sharing between ASADA and sporting organisations by extending statutory protections in the ASADA Act so that, in addition to applying to 'entrusted persons', they also apply to a sporting administration body or person that has received the protected information in confidence from ASADA.

Strengthening ASADA ' s disclosure notice regime

In a complex doping environment, ASADA's investigation capability is crucial in uncovering non-analytical anti-doping rule violations (those which do not involve a positive blood or urine test). Critical to ASADA's investigative capacity is the power of the ASADA CEO to issue a disclosure notice requiring an individual or entity to assist with an investigation.

Disclosure notices can require a person to attend an interview to answer questions, give information, or produce documents or things. The Wood Review found that there were areas of this disclosure notice framework that required strengthening to support this investigative capability.

The ASADA CEO can only issue a disclosure notice if they reasonably believe that the person has information, documents or things that may be relevant to the administration of the National Anti-Doping scheme. The threshold of 'reasonable belief means that disclosure notices are generally only sought, and granted (currently by members of the Anti-Doping Rule Violation Panel), in circumstances where ASADA already has evidence that might suggest that an Anti-Doping Rule Violation has taken place - for instance, in connection with an Adverse Analytical Finding. In circumstances where ASADA suspects an Anti-Doping Rule Violation has taken place but lacks evidence, disclosure notices would not be available to ASADA to progress the matter. These amendments provide for a statutory threshold for the issue of a disclosure notice to be that of 'reasonable suspicion'. A 'reasonable suspicion' threshold for the exercise of similar powers is relatively commonplace in comparable statutory schemes.

There are also limits to ASADA 's coercive powers once a disclosure notice has been granted. Section 13D (1) of the ASADA Act allows a person to claim privilege against self-incrimination when answering a question or providing information to ASADA. A person cannot claim privilege against self­ incrimination in relation to a requirement to produce a document or thing. The Wood Review found that to enable ASADA to effectively execute its intelligence and investigative functions, the right to claim privilege against

self-incrimination , when answering a question or providing information to ASADA, should be excluded. These amendments provide for these changes and include the same protections against non-direct or derivative use in criminal prosecution would exist as they currently do under 13D(2) of the ASADA Act, in respect of providing a document or thing.

In effect, this amendment harmonises the exercise of ASADA's powers across the provision of information whether at an interview or by provision of a 'document or thing'. It also brings ASADA's powers to compel evidence from a witness into line with the powers of investigators acting on behalf of many sports (as a result of clauses in player contracts).

Extending statutory protection against civil actions to cover National Sporting Organisations in their exercise of Anti-Doping Rule Violation functions.

Provided that the ASADA CEO, staff and engaged personnel act in good faith, the ASADA Act establishes a suite of statutory protections for them against civil actions relating to:

the performance or purported performance of any function of the CEO or

the exercise or purported exercise of any power of the CEO.

This protects ASADA in its role when presenting evidence or material against an athlete or support person at a hearing, the issuing of an infraction notice, or in making recommendations about a provisional suspension. However, under the sporting administration body rules (in the National Anti-Doping Scheme), sporting administration bodies and other persons are also required to perform these functions (to the extent that they have not ceded this responsibility back to ASADA).

These amendments extend this statutory protection to protect sporting administration bodies and other persons when bringing anti-doping allegations against an athlete or support person (which is often done after the recommendation of ASADA). As anti-doping cases become more complicated (particularly non-analytical violations) it is beneficial and in the interests of integrity in sport to provide this protection.

Conclusion

To the extent that these reforms are directed to the functions of ASADA, under this proposal such functions would be performed by the proposed new sports integrity agency, Sport Integrity Australia, from 1 July 2020.

The amendments to the ASADA Act are the necessary step in developing a more robust, coordinated and effective anti-doping response. They mark an important development in Australia's anti-doping efforts and will enhance ASADA's ability to combat the mounting sophisticated doping threats.

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.