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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020



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BILLS DIGEST NO. 17, 2020-21 8 OCTOBER 2020

Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 Karen Elphick Law and Bills Digest Section

Contents

Glossary ....................................................................... 2

Purpose of the Bill ........................................................... 3

Structure of the Bill ......................................................... 3

Background ..................................................................... 4

Requirement to implement the 2021 Code ................ 4 Changes to International Standards .......................... 5

Significant changes in the 2021 Code ......................... 5

Committee consideration ................................................ 6

Senate Standing Committee for the Selection of Bills .............................................................................. 6

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 6

Policy position of non-government parties/independents...................................................... 6

Position of major interest groups..................................... 6

Financial implications ...................................................... 6

Statement of Compatibility with Human Rights................ 6

Parliamentary Joint Committee on Human Rights ..... 6 Key issues and provisions ................................................ 7

Expanded definition of athlete ................................... 7

Expansion of the NAD scheme to non-participants ................................................................. 7

Obligations under the 2021 Code ............................. 7

Aligning the NAD scheme to the 2021 Code ............. 8 Compatibility of the 2021 Code with international human rights norms .................................................. 10

Consequential amendments to NST Act ................... 11 Appendix 1 - Summary of some of the significant changes implemented by the 2021 Code ........................ 12

Date introduced: 26 August 2020

House: Senate

Portfolio: Youth and Sport

Commencement: Six months after Royal Assent unless an earlier date is fixed by proclamation.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at October 2020.

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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 2

Glossary Abbreviation Definition

2021 Code

World Anti-Doping Code 2021 (approved but not yet in force)— also known as the revised WADA Code.

2021 Standards

The eight mandatory International Standards issued by WADA which harmonise specific technical and operational parts of anti-doping programs.

AAF

‘Adverse Analytical Finding’, defined at p. 164 of the 2021 Code. A report from an accredited or approved laboratory that establishes in a sample the presence of a prohibited substance or its metabolites or markers or evidence of the use of a prohibited method.

ADO

An Anti-Doping Organisation given responsibilities under the Code.

ADRV Anti-doping rule violation.

ASADA

Australian Sports Anti-Doping Authority (integrated into Sport Integrity Australia in 2020).

ASC

Australian Sports Commission—established by the Australian Sports Commission Act 1989 and known by the brand name ‘Sport Australia’ or ‘SportAus’.

ASDMAC Australian Sports Drug Medical Advisory Committee.

ATF

‘Atypical Finding’, defined at p. 166 of the 2021 Code: A report from an accredited or approved laboratory which requires further investigation prior to the determination of an AAF.

CAS Court of Arbitration for Sport.

CEO Chief Executive Officer of Sport Integrity Australia.

Code

World Anti-Doping Code 2015 with 2019 amendments (as in force)—also known as the WADA Code.

Code Review

A multi-year process of review by WADA of the current Code begun in November 2017. The process is explained at ‘2021 Code Review’.

Convention

International Convention Against Doping in Sport (as amended from time to time), done at Paris 19 October 2005, [2007] ATS 10 (ratified for Australia 17 January 2006; entry into force generally and for Australia 1 February 2007).

ECHR European Court of Human Rights.

Guide for Stakeholders

World Anti-Doping Agency (WADA), 2021 World Anti-Doping Code and International Standard Framework Development and Implementation Guide for Stakeholders, 18 October 2019, WADA.

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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 3

ICCPR

International Covenant on Civil and Political Rights—Australia ratified the ICCPR in 1980 and it is in force for Australia but not fully implemented domestically.1

Macolin Convention Council of Europe Convention on the Manipulation of Sports Competitions—Australia signed the convention on 1 February 2019 but has not yet ratified it.2

NAD scheme

National Anti-Doping Scheme—prescribed by section 9 of the Sport Integrity Australia Act 2020, the NAD scheme is contained in Schedule 1 of the Sport Integrity Australia Regulations 2020.

NADO

National anti-doping organisation—Sport Integrity Australia is Australia’s designated NADO.

NSO

National Sporting Organisation—a generic name for the peak governing body of a sport.

NST Act National Sports Tribunal Act 2019

SIA Sport Integrity Australia.

WADA World Anti-Doping Agency.

Purpose of the Bill The purpose of the Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 (the Bill) is to amend the Sport Integrity Australia Act 2020 (the Act) by expanding the operation of some provisions to include non-participants in sport, to amend the definition of an athlete, and other minor amendments. The expansion to cover non-participants is intended to align Australia’s anti-doping legislation with the new World Anti-Doping Code 2021 (2021 Code) and accompanying International Standards (2021 Standards) issued by the World Anti-Doping Agency (WADA).

Structure of the Bill This Bill has one Schedule divided into two parts. Part 1 makes amendments to the Act. Two key amendments in Part 1 broaden the application of the national anti-doping scheme (NAD scheme) by:

• amending the definition of athlete to include persons who have competed in sport within the past six months and

• adding a new definition of non-participant.

Part 1 also expands the circumstances in which an anti-doping organisation may respond to published misinformation about an ongoing anti-doping rule violation (ADRV).

1. International Covenant on Civil and Political Rights, done in New York on 16 December 1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13 November 1980; Art. 41 came into force for Australia on 28 January 1993). See also: comments of Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT), Legal foundations of religious freedom in Australia: interim report, Chapter 6, JSCFADT, Canberra, November 2017.

2. Council of Europe Convention on the Manipulation of Sports Competitions, (Macolin Convention), opened for signature 18 September 2014, CETS No. 215, entered into force 1 September 2019. Australia signed the Convention on 1 February 2019 but, as at 7 September 2020, it is not yet in force for Australia: Council of Europe, ‘Chart of signatures and ratifications of Treaty 215’, Council of Europe Treaty Office website.

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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 4

Part 2 makes consequential amendments to the National Sports Tribunal Act 2019 (NST Act) to ensure that arbitration is available for any person who is subject to a sporting administration body’s anti-doping policy, including athletes, support persons, and non-participants.

Background Sport Integrity Australia (SIA) was established in 2020 to unite all the existing nationally focussed sport integrity functions into a single entity. It brought together the functions of the Australian Sports Anti-Doping Authority, the National Integrity of Sport Unit, and the sports integrity functions of the Australian Sports Commission.3

Requirement to implement the 2021 Code The World Anti-Doping Code (Code) and the associated International Standards are the core documents that harmonise anti-doping policies, rules and regulations within sport organisations and among public authorities around the world.4 The signatories to the Code are sporting organisations that belong to the Olympic Movement, National Anti-Doping Organisations (NADOs), and national and international sporting federations outside the Olympic Movement.5 Sport Integrity Australia is Australia’s designated NADO and is a signatory to the Code.6

States, including Australia, who have ratified the UNESCO International Convention against Doping in Sport (Convention) have agreed to implement arrangements that are consistent with the principles of the Code as it is in force from time to time.7

Article 4 - Relationship of the Convention to the Code

1. In order to coordinate the implementation, at the national and international level, of the fight against doping in sport, the States Parties commit themselves to the principles of the Code, as the basis for the measures provided for in Article 5 of this Convention. Nothing in this Convention prevents the States Parties from adopting additional measures complementary to the Code…

Article 5 - Measures to achieve the objectives of the Convention

In abiding by the obligations contained in this Convention, each State Party undertakes to adopt appropriate measures. Such measures may include legislation, regulation, policies or administrative practices.

WADA has been conducting a staged review of the current Code, World Anti-Doping Code 2015 with 2019 amendments, since 2017 (Code Review).8 The history and progress of the review is explained in WADA’s Guide for Stakeholders.9 The final stage of the review is now complete and the 2021 Code and accompanying 2021 Standards were approved at the World Conference on

3. K Elphick, Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019, Bills digest, 61, 2019-20, Parliamentary Library, Canberra, 29 November 2019. pp. 4, 6. 4. World Anti-Doping Agency (WADA), ‘The Code’, WADA website. 5. World Anti-Doping Agency (WADA), ‘Code signatories’, WADA website. 6. NADOs have particular roles and responsibilities under the Code, see Article 20.5 of the 2021 Code at pp. 129-131. 7. Articles 4 and 5 of the International Convention Against Doping in Sport (as amended from time to time), done at Paris

19 October 2005, [2007] ATS 10 (entered into force generally and for Australia 1 February 2007). 8. The 2021 Code Review Process is explained at ‘2021 Code Review’ on the WADA website. 9. WADA, 2021 World Anti-Doping Code and International Standard Framework Development and Implementation Guide for

Stakeholders, (Guide for stakeholders), WADA, 18 October 2019, pp. 1-3.

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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 5

Doping in Sport in Katowice, Poland on 6 November 2019.10 Signatories to the Code, including SIA, must modify their rules to incorporate the 2021 Code on or before 1 January 2021.11

Changes to International Standards International Standards for different technical and operational areas within the anti-doping program are developed in consultation with governments and approved by WADA.12 The International Standards contain much of the technical detail necessary for implementing the Code and adherence to the International Standards is mandatory for compliance with the Code.13

The 2021 Standards comprise revised versions of the six existing International Standards:

• International Standard for Code Compliance by Signatories (ISCCS)14

• International Standard for the Prohibited List (The List)15

• International Standard for the Protection of Privacy and Personal Information (ISPPPI)16

• International Standard for Therapeutic Use Exemptions (ISTUE)17

• International Standard for Testing and Investigations (ISTI)18

• International Standard for Laboratories (ISL)19

and two new standards:

• International Standard for Education (ISR)20

• International Standard for Results Management (ISRM).21

The significant changes between the current International Standards and the 2021 Standards are discussed in the Guide for Stakeholders at pages 20-35.22

Significant changes in the 2021 Code The Guide for Stakeholders identifies 51 significant changes between the current Code and the 2021 Code.23 Some of the notable changes identified in the Guide for Stakeholders are outlined in Appendix 1 to this Digest. Most of the changes will be implemented through changes to the Sport Integrity Australia Regulations 2020 (Regulations), the National Anti-Doping Scheme (NAD scheme) at Schedule 1 of the Regulations, and by changes to the anti-doping policies of National

10. Explanatory Memorandum, Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020, p. 2. 11. Article 25.1.4 of the 2021 Code. 12. The existing standards can be found on the WADA website at ‘International Standards’. 13. Preamble to the 2021 Code at page 10. 14. WADA, World anti-doping code international standard: Code compliance by signatories 2021, Montreal, WADA, [2020]. 15. WADA, World anti-doping code international standard: prohibited list, January 2020, Montreal, WADA, [2020]. 16. WADA, World anti-doping code international standard: protection of privacy and personal information 2021, Montreal,

WADA, [2020]. 17. WADA, World anti-doping code international standard: therapeutic use exemptions 2021, Montreal, WADA, [2020]. 18. WADA, World anti-doping code international standard: testing and investigations 2021, Montreal, WADA, [2020]. 19. WADA, World anti-doping code international standard: laboratories 2021, Montreal, WADA, [2020]. 20. WADA, World anti-doping code international standard: education 2021, Montreal, WADA, [2020]. 21. WADA, World anti-doping code international standard: results management 2021, Montreal, WADA, [2020]. 22. WADA, Guide for stakeholders, op. cit., pp. 20-35. 23. Ibid., pp. 4-19.

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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 6

Sporting Organisations (NSOs).24 However, some amendments to the Act and the NST Act are required to give effect to the 2021 Code.

Committee consideration

Senate Standing Committee for the Selection of Bills The Senate Standing Committee for the Selection of Bills has twice deferred consideration of whether to refer the Bill to a committee for inquiry and report.25

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.26

Policy position of non-government parties/independents At the time of writing, no comments on the Bill from non-government parties/independents could be located.

Position of major interest groups At the time of writing, no comments on the Bill from major interest groups could be located.

Financial implications The Explanatory Memorandum states that the Bill has no financial impact on the Commonwealth.27

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.28

Compatibility of the 2021 Code with international human rights norms is discussed below under the heading ‘Key issues and provisions’.

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (PJCHR) noted that the Bill would expand the circumstances in which the Chief Executive Officer of Sport Integrity Australia (CEO) can publicly disclose protected information, which may potentially reveal highly personal information about a person (such as their use of medication, or intersex status if relevant to a sports doping allegation) and has sought the Minister’s advice in relation to whether the measure: is aimed at a legitimate objective, is a proportionate limitation on the right to privacy, and what type of information is likely to be disclosed.29

24. Explanatory Memorandum, op. cit., p. 2. 25. Senate Standing Committee for the Selection of Bills, Report, 7, 2020, The Senate Canberra, 27 August 2020; Senate Standing Committee for the Selection of Bills, Report, 8, 2020, The Senate Canberra, 3 September 2020. 26. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 11, 2020, The Senate, Canberra, 2 September 2020, p. 16. 27. Explanatory Memorandum, op. cit., p. 2. 28. The Statement of Compatibility with Human Rights can be found at pages 3-5 of the Explanatory Memorandum to the Bill. 29. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 11, 2020, 24 September 2020, pp. 78-80.

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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 7

At the time of writing, the Minister’s response had been received, but not yet published, by the PJCHR.30

Key issues and provisions

Expanded definition of athlete Item 1 repeals the definition of athlete in section 4 of the Act and substitutes a definition which includes persons who competed in sport within the last six months. The purpose of the proposed definition is to remove doubt that athlete could be interpreted narrowly to only include those persons who currently compete in sport.31

The proposed definition will ensure that ‘an anti-doping organisation can continue to investigate a possible ADRV against an athlete for a limited period after the athlete has stopped competing’.32

As the Explanatory Memorandum acknowledges, this change is not required by the Code revisions.33

Expansion of the NAD scheme to non-participants

Obligations under the 2021 Code The Code Review identified a gap in anti-doping arrangements when a systemic, state-sponsored, doping program was uncovered in Russia where many of the individuals who facilitated the scheme were outside the jurisdiction of the Code. It recognised that persons such as board members, directors, officers, and specified employees of anti-doping organisations, as well as delegated third-party testing agencies, who are outside the definition of ‘Athlete’ and ‘Support person’ in the current Code may play pivotal roles in facilitating doping in sport.34

The term non-participant is not defined or used in the 2021 Code. ‘Participant’ is defined in the 2021 Code as any ‘Athlete’ or ‘Athlete Support Person’. The 2021 Code generally refers to ‘athlete or other person’ where a provision is designed to also cover non-participants. While ‘Person’ is used in the current Code, the 2021 Code uses the term more often and provides more detail through the addition of examples:35

Anti-doping rules, like competition rules, are sport rules governing the conditions under which sport is played. Athletes, Athlete Support Personnel or other Persons (including board members, directors, officers, and specified employees, and Delegated Third Parties and their employees) accept these rules as a condition of participation or involvement in sport and shall be bound by these rules.

36 Each

30. Parliamentary Joint Committee on Human Rights, ‘Ministerial responses’, Australian Parliament website. 31. Explanatory Memorandum, op. cit., pp. 2, 7. 32. Explanatory Memorandum, op. cit., p. 7. 33. Explanatory Memorandum, op. cit., p. 4. 34. Explanatory Memorandum, op. cit., pp. 7-8. 35. The expansion of the Code to cover ‘other persons’ can be seen in the ‘redline version’ of the 2021 Code which marks the

changes from the current Code: WADA, World Anti-Doping Code 2021 (redline comparison to 2015 Code as amended in 2018), WADA website. 36. Footnote 6 from 2021 Code: Where the Code requires a Person other than an Athlete or Athlete Support Person to be bound by the Code, such Person would of course not be subject to Sample collection or Testing, and would not be subject to an anti-

doping rule violation under the Code for Use or Possession of a Prohibited Substance or Prohibited Method. Rather, such Person would only be subject to discipline for a violation of Code Articles 2.5 (Tampering), 2.7 (Trafficking), 2.8 (Administration), 2.9 (Complicity), 2.10 (Prohibited Association) and 2.11 (Retaliation). Furthermore, such Person would be subject to the additional roles and responsibilities according to Article 21.3. Also, the obligation to require an employee to be bound by the Code is subject to applicable law.

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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 8

Signatory shall establish rules and procedures to ensure that all Athletes, Athlete Support Personnel or other Persons under the authority of the Signatory and its member organizations are informed of and agree to be bound by anti-doping rules in force of the relevant Anti-Doping Organizations.) 37

The 2021 Code extends the operation of anti-doping rule violations to other persons in Article 10.2.3. Article 21.3 of the 2021 Code also imposes specific roles and responsibilities on other persons subject to the Code:

21.3.1 To be knowledgeable of and comply with all anti-doping policies and rules adopted pursuant to the Code and which are applicable to them.

21.3.2 To disclose to their National Anti-Doping Organization and International Federation any decision by a non-Signatory finding that they committed an anti-doping rule violation within the previous ten (10) years.

21.3.3 To cooperate with Anti-Doping Organizations investigating anti-doping rule violations.

The 2021 Code includes a variety of obligations on different stakeholders in relation to non-participants:

• the International Olympic Committee (Article 20.1.7), the International Paralympic Committee (Article 20.2.7), each international federation (Article 20.3.4), each National Olympic Committee and National Paralympic Committee (Article 20.4.8), each NADO (Article 20.5.10), and major event organisation (Article 20.6.5), and WADA itself (Article 20.7.12) must require all of its board members, directors, officers and other employees involved in anti-doping activity to be bound by the 2021 Code as ‘Persons’

• governments are obliged to create rules, regulations or policies for persons bound by the Code by virtue of being involved in ‘Doping Control’ (Article 22.3). There are particular obligations to prevent involvement of persons serving periods of ineligibility, or who would have been disqualified if Code-compliant rules had been applicable to those persons (Article 22.4).

Aligning the NAD scheme to the 2021 Code Section 2.04 of the NAD scheme requires a sporting administration body38 to have in place an anti-doping policy, approved by the CEO, that complies with the mandatory provisions of the Code.39

Division 2 of Part 2 of the Act identifies what must be in the NAD Scheme. Subsection 13(1) lists matters the NAD scheme must deal with. Item 6 adds proposed paragraph 13(1)(ab) which requires that the NAD scheme provide that all non-participants, or that one or more specified classes of non-participants, are subject to the NAD scheme.

Item 2 inserts a new definition of non-participant in section 4 of the Act:

non-participant means a person:

(a) who is neither an athlete nor a support person; and

37. Introduction, 2021 Code, p. 17. 38. Section 4 of the Act defines sporting administration body very broadly. 39. Commonwealth funding for sporting organisations may be linked to having an approved anti-doping policy. See SportAUS, ‘Recognition of National Sporting Organisations’, SportAUS website, n.d.

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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 9

(b) who is bound by a sporting administration body’s anti-doping policy.

The CEO is authorised by section 10 of the Act to amend the NAD scheme. Item 4 inserts proposed subparagraph 10(1)(a)(iia) which will allow the CEO to extend the NAD scheme to any non-participant:

(1) The CEO may, by legislative instrument, amend the NAD scheme, so long as:

(a) the amendment relates to any or all of the following matters: …

(iia) the classes of non-participants who are subject to the NAD scheme;

The Explanatory Memorandum suggests that the ‘classes of non-participant’ which the CEO may prescribe may include board members, directors, officers, and specified employees of sporting administration bodies, as well as delegated third-party testing agencies.40 This is consistent with the obligations of different stakeholders under the 2021 Code. However, the Bill does not limit the class or type of non-participant to those examples. Any class of person who is bound by a sporting administration body’s anti-doping policy, but is neither an athlete nor an athlete support person, could be made subject to the NAD scheme.

It will be possible for the CEO to define the classes of non-participant, more broadly than required by the 2021 Code and apply the anti-doping rules to those classes of non-participant. However, there are some limits to the CEO’s discretion:

• the person must be bound by a sporting organisation’s anti-doping policy and

• the provisions could not authorise the NAD scheme being extended beyond the area of operation of the object of the Act at section 3A:

The object of this Act is to establish Sport Integrity Australia to prevent and address threats to sports integrity and to coordinate a national approach to matters relating to sports integrity in Australia, with a view to:

(a) achieving fair and honest sporting performances and outcomes; and

(b) promoting positive conduct by athletes, administrators, officials, supporters and other stakeholders, on and off the sporting arena; and

(c) achieving a safe, fair and inclusive sporting environment at all levels; and

(d) enhancing the reputation and standing of sporting contests and of sport overall. 41

The Explanatory Memorandum notes that the obligation to require an employee of a sporting administration body to be bound by an anti-doping policy is subordinate to other applicable laws that may preclude such a requirement.42 It does not give any examples of laws which might have that effect.

The CEO already has power to define the classes of athletes and support persons subject to the NAD scheme and has done so in the Sport Integrity Australia Regulations 2020:

40. Explanatory Memorandum, op. cit., p. 8. 41. Section 3A of the Sport Integrity Australia Act 2020. 42. Explanatory Memorandum, op. cit., p. 8.

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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 10

1.06 Classes of athletes subject to the NAD scheme

(1) Persons who compete in sport are subject to the NAD scheme if the sport has an anti-doping policy.

Note: A person who competes in sport and who is subject to the NAD scheme is an athlete (see section 4 of the Act).

(1A) The anti-doping rules apply to all athletes.

(2) The following classes of athletes may be tested by the CEO under the NAD scheme:

(a) athletes in the CEO’s registered testing pool;

(b) athletes in the CEO’s domestic testing pool;

(c) international-level athletes;

(d) athletes who compete in international events;

(e) athletes who compete in national events;

(f) athletes for whom the CEO is required or permitted to test under a contract or an anti-doping arrangement;

(g) athletes in the registered testing pool of an International Sporting Federation, or a national anti-doping organisation or regional anti-doping organisation;

(h) athletes who are present in Australia at the time of the testing;

(i) athletes serving a period of ineligibility.

1.07 Classes of support persons subject to the NAD scheme

(1) Support persons involved in a sport with an anti-doping policy are subject to the NAD scheme.

(2) The anti-doping rules apply to all support persons subject to the NAD scheme.

Compatibility of the 2021 Code with international human rights norms WADA asked an international legal expert, Jean-Paul Costa, a former President of the European Court of Human Rights (ECHR), to comment on the compatibility of the proposed 2021 Code with international human rights norms. Costa’s expert legal conclusion was that the 2021 Code, now that modifications had been made to address some points he had previously raised, did not create any serious human rights issues.43

Costa noted that the body of sport law (the lex sportiva) has been in somewhat of a vacuum in relation to human rights in the past. However, he went on to observe that the current Code has now been recognised by the ECHR as a real source of law and the Court of Arbitration for Sport

43. J Costa, Legal opinion 2019 (expert opinion) on the World Anti-Doping Code, WADA, 26 September 2019.

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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 11

(CAS) has been subject to the judicial supervision of the ECHR with generally positive conclusions, so sport law has now intersected with human rights law. Costa states:

[T]his development is and will be irreversible. The fight against doping and fundamental rights is reconcilable and must and can be reconciled. The draft 2021 Code is now standing on safer legal ground …

In an ideal world, one can always improve certain drafting of articles and add certain comments specifically for the purpose of enlightening the stakeholders but also the lawyers, the disciplinary bodies and obviously the Courts, beginning with the CAS. However, subject to these few reservations, my conclusion is that the provisions of the draft Code examined here are, as a whole in compliance with fundamental rights.

44

Consequential amendments to NST Act The classes of persons who can apply to the National Sports Tribunal for arbitration of a dispute under an anti-doping policy are currently limited to an athlete or support person. The consequential amendments in Part 2 of Schedule 1 ensure that non-participants who are subject to an anti-doping policy will also be permitted to apply for arbitration in the National Sports Tribunal.

44. Ibid., p. 37.

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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 12

Appendix 1 - Summary of some of the significant changes implemented by the 2021 Code

Increased emphasis on health and athletes rights • The fundamental rationale for the Code has been amended to reflect an increased emphasis on the importance of athlete health and to provide a better statement of the ethical foundation of the Code:

Anti-doping programs are founded on the intrinsic value of sport. This intrinsic value is often referred to as “the spirit of sport”: the ethical pursuit of human excellence through the dedicated perfection of each Athlete’s natural talents.

Anti-doping programs seek to protect the health of Athletes and to provide the opportunity for Athletes to pursue human excellence without the Use of Prohibited Substances and Prohibited Methods. Anti-doping programs seek to maintain the integrity of sport in terms of respect for rules, other competitors, fair competition, a level playing field, and the value of clean sport to the world.

The spirit of sport is the celebration of the human spirit, body and mind… The spirit of sport is expressed in how we play true. Doping is fundamentally contrary to the spirit of sport. 45

• The identification of athletes’ rights in the Code has been specifically included as part of the fundamental rationale for the Code. The 2021 Code also continues to provide in Article 20.7.7 that one of WADA’s responsibilities will be, in coordination with WADA’s Athlete Committee, to approve a document that compiles in one place those athletes’ rights that are specifically identified in the Code and also identifies any other agreed upon principles of best practice with respect to the overall protection of athletes’ rights in the context of anti-doping.46

Elevated importance of technical documents • Technical Documents have been enumerated as one of the main elements of the World Anti-Doping Program. Technical Documents relate to mandatory technical requirements for implementation of 2021 Standards. Technical Documents are mandatory and become effective

immediately upon publication by WADA.47

New and amended ADRVs and consequences • Article 2.11 creates a new ADRV of threatening another person to discourage that person from the good faith reporting to authorities of information relating to an ADRV, non-compliance with the Code or other doping activity, or to retaliate against another person for doing so.48

• There have been a number of changes related to acts of tampering with samples. ‘Tampering’ is now a defined term.49 The acts of falsifying documents submitted to an ADO and procuring false testimony from witnesses have been moved up from the comment and specifically included in the definition of ‘Tampering’.50 The sanction provided in the 2015 Code for Refusal and Tampering Violations was four years ineligibility; however, there may be exceptional circumstances where a lesser sanction is justified. Article 10.3.1 has been amended to provide

45. ‘Fundamental rationale for the world anti-doping code’, preamble to the 2021 Code at p. 13. 46. WADA, Guide for stakeholders, op. cit., p. 5. 47. ‘Technical documents’, preamble to the 2021 Code, p. 11. 48. WADA, Guide for stakeholders, op. cit., p. 7; Article 2.11 of the 2021 Code, p. 25. 49. Ibid., pp. 6-7; Appendix 1 ‘Definitions’, 2021 Code, p. 176. 50. Ibid., p. 11; Article 10.3.1 of the 2021 Code, p. 67.

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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 13

that, in exceptional circumstances, the period of ineligibility shall be in a range of two to four years.51

• Article 2.10 prohibiting association in a sport-related capacity with an athlete support person who is serving a period of ineligibility, has been amended to eliminate the advance notice requirement and instead, place the burden on the ADO to demonstrate that the athlete knew that the athlete support person was ineligible.52

• Article 10.2.3 clarifies the definition of ‘Intentional’ so it is consistent with CAS decisions. ‘Intentional’ means that the person intended to commit the act which forms the basis of an ADRV regardless of whether the person knew that such act constituted a violation of the Code.53

• Article 10.4 reintroduces the concept of ‘Aggravating Circumstances’ to deal with special or exceptional circumstances where an additional period of ineligibility from zero to two years is appropriate.54

• The rules for dealing with multiple violations have been changed to better deal with a prior undiscovered ADRV. If the ADO can establish that a prior undiscovered ADRV occurred more than 12 months before the first sanctioned violation, then the later-discovered violation shall be punished as a first violation and run separately following the period of ineligibility for the previously discovered violation. This preserves the principle that a person does not get a second strike until he or she has been notified of the first strike, but maintains additional consequences for separate violations. In Article 10.9.1, the formula for calculating the period of ineligibility for a second ADRV has been modified to make the result more proportionate and not so dependent on the order in which the two violations occurred.55

Treatment of street drugs • Sanctions for street drugs remain a significant problem under the Code. Cocaine is a particular problem. WADA’s List Expert Group will identify those substances on the Prohibited List which are often abused in society outside of sport as ‘Substances of Abuse’. Article 10.2.4.2 provides

that, where the athlete can establish that in-competition use of a substance of abuse was unrelated to sport performance, then the use shall not be considered ‘intentional’ for purposes of the four-year period of ineligibility for intentional use provided in Article 10.2.1.56

Trace amounts of prohibited substances • The ability of WADA-accredited laboratories to detect miniscule quantities of prohibited substances in athlete samples has, in some cases, improved one hundred to one thousand fold over the last decade. This increased analytical sensitivity has made it easier to detect the tail

end of the excretion curve from the intentional use of a prohibited substance. However, it has also increased the likelihood that an Adverse Analytical Finding (AAF) may result from contamination of a supplement or other product. The 2021 Code implements several measures to deal with the increasing capacity of laboratories to find very small traces of prohibited substances:

51. Ibid., p. 11. 52. Ibid., p. 7. 53. Ibid., p. 10. Article 10.2.3 of the 2021 Code, p. 65. 54. WADA, Guide for stakeholders, op cit., p. 12. 55. Ibid., pp. 13-14. 56. Ibid., pp. 10-11.

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- It permits WADA to develop a list of prohibited substances, other than endogenous substances, which may be reported as an Atypical Finding (ATF) and trigger an investigation. This permits a more nuanced treatment of findings when trace elements are found of substances that are known to occur as environmental contaminants; for example, meat contamination in Mexico and China can cause trace levels of clenbuterol to appear in an athlete's urine.57

- It has always been the case under the Code that some substances are prohibited at all times, and other substances are only prohibited in-competition. The general rule has been that if a substance appears in an athlete's sample in an in-competition test, it is an AAF; it does not matter when the substance was taken. The consequences of this approach have become increasingly problematic as WADA-accredited laboratories have developed the ability to detect ever more minute quantities of prohibited substances in an athlete's urine in in-competition samples. In some cases, these substances were obviously used out-of-competition and could not possibly have had an in-competition effect. To address this problem, a special working group appointed by WADA is considering reporting thresholds for certain substances which are not prohibited out-of-competition but which may appear in trace amounts in in-competition tests.58

- The current Code provides that in order for an athlete to receive a reduced sanction on account of product contamination, the athlete must be able to identify the contaminated product which he or she consumed which caused the AAF (current Code, Article 10.5.1.2 in combination with the definition of ‘No Significant Fault or Negligence’). However, there are cases where the AAF involves a very low level of a prohibited substance which is known to occur in contaminated products, but the athlete is not able to specifically identify the product which caused the AAF. In some of these cases, the AAF is much more likely the result of product contamination than the tail end of an excretion curve, but under the current rule no reduction of sanction is permitted. Rather than modify the rule in the current Code related to contaminated products, a better approach is to consider raising the reporting limits for those prohibited substances which are known contaminants. A special WADA working group is working on an approach to do this.59

Results management • Much of the detail currently found in Article 7 has been moved into the new International Standard for Results Management.60 Important principles of results management have been retained in Article 7. Currently, some ADOs limit their decisions to a particular geographic area

so that other organizations must initiate their own proceedings to declare a person ineligible to participate in their events. Article 7.5.1 has been added to make clear that Article 7, together with new Article 15, gives the imposition of consequences by a Signatory worldwide effect in all sports without further action.61

• Articles 10.6.3 (Prompt Admission) and Article 10.11.2 (Timely Admission) have been eliminated and replaced with a new Article 10.8. Article 10.8.1 provides that where an athlete or other person who is facing an asserted period of ineligibility of four or more years admits the violation and accepts the asserted period of ineligibility within 20 days of notice of the ADRV

57. Ibid., p. 6. 58. Ibid., pp. 7-8. 59. Ibid., p. 12. 60. WADA, World anti-doping code international standard: results management 2021, Montreal, WADA, [2020]. 61. WADA, Guide for stakeholders, op cit., pp. 9-10.

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Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 15

charge, then there will be a reduction of one year from the otherwise applicable period of Ineligibility. This provides some incentive for the individual to admit the ADRV and saves the ADO the cost of a hearing without being too lenient. Article 10.8.2 provides an opportunity for the ADO, the athlete or other person and WADA to enter into a Case Resolution Agreement in which the applicable period of ineligibility can be agreed upon based on the facts of the case. The reduction possibilities permitted in a Case Resolution Agreement are not something that a hearing body is permitted to impose or review. Case Resolution Agreements are not appealable by anyone. As in the case of ‘Substantial Assistance’, an athlete who is negotiating a Case Resolution Agreement is entitled to tell his or her story under a ‘Without Prejudice Agreement’.62

More rigorous standards for fair hearings • Article 8 now requires that the hearing panel be ‘Operationally Independent’ from the investigation, the decision to change and the prosecution of the case. ‘Operational Independence’ has been made a defined term. This change was made in response to significant

concern that the ‘impartial hearing panel’ requirement in Article 8.1 was not being followed by all Signatories where, for example in some cases, the same individual is involved in the investigation, the decision to charge an ADRV and the hearing on whether a violation has been committed.63

• Article 13.2.2 makes clear that where the structure of the national level appellate body is not fair, impartial, and operationally and institutionally independent, the athlete or other person shall have the right of appeal to CAS. ‘Institutional Independence’ is a defined term.64

• Article 13.1.1 makes clear that any party to an appeal may submit evidence, legal arguments and claims which were not raised in the first hearing so long as they arose from the same cause of action or same general facts or circumstances raised in the first instance hearing. An example has been added in the comment to this Article to further clarify the point that a different ADRV charge may be asserted on appeal based on the same underlying facts.65

Public disclosure of ADRVs • A comment to Article 14.3.2 has been added to make clear that failure to make a public disclosure under 14.3.2 will not be considered a Code Compliance Violation where it is prohibited by national law. A new provision, Article 14.3.3, has been added which provides

that, after the initial hearing has been completed or waived, the ADO conducting results management may make public its determination or the hearing panel decision and may comment publicly on the matter. This has always been the case, but the right to do so has not been clearly spelled out in the Code.66

Protected persons and minors • Under the current Code, more flexible sanctioning rules are applied to minors. The 2021 Code makes two important changes. First, these more flexible sanctioning rules are applied to an expanded class of athletes described as ‘Protected Persons’ which also includes individuals

62. Ibid., p. 13. 63. Ibid., p. 10. 64. Ibid., p. 15. 65. Ibid. 66. Ibid., p. 16.

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who, for reasons other than age, have been determined to lack legal capacity under applicable national legislation. Second, elite 16 and 17 year old athletes are not included in the definition of ‘Protected Persons’ because, considering their sport experience necessary to achieve that level of performance, they should receive the same treatment as the other elite athletes against whom they are competing. These elite 16 and 17 year old athletes would not benefit from the special flexible sanctioning rules; however, as minors, Article 14.3.7 would excuse them from the mandatory Public Disclosure rule in Article 14.3.2.67

Recreational athletes • A new category of ‘Recreational Athletes’ benefits from more flexibility in the imposition of consequences. The determination of who is a recreational athlete is left to the NADO of the athlete’s country, but must not include any athlete who, in the prior five years has been: an

international-level or national-level athlete; representing a country in an international event in an open category; or been in a Registered Testing Pool or other whereabouts pool of an International Federation or NADO. ‘Recreational Athletes’ benefit from the same flexibility in sanctioning as protected persons.68

67. Ibid., p. 19. 68. Ibid.

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