Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

 

 

2019-2020

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

 

 

 

 

 

 

SPORT INTEGRITY AUSTRALIA AMENDMENT (WORLD ANTI-DOPING CODE REVIEW) BILL 2020

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Youth and Sport, Senator the Hon Richard Colbeck)





SPORT INTEGRITY AUSTRALIA AMENDMENT (WORLD ANTI-DOPING CODE REVIEW) BILL 2020

 

OUTLINE

The Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill 2020 (Bill) aligns Australia’s anti-doping legislation with the revised World Anti-Doping Code (Code) and International Standards (Standards) that come into force on 1 January 2021.

Australia’s anti-doping legislation gives effect to its international obligations under the UNESCO International Convention against Doping in Sport (Convention).  The Convention requires States Parties to implement arrangements that are consistent with the principles of the Code.  The Code provides the framework for the operation of global harmonised rules and regulations.

The international sporting community, including the International Olympic Committee and international sporting federations who are signatories to the Code, are committed to updating their anti-doping policies to reflect the revised Code.  At the same time, the 180 governments who have ratified the Convention, including Australia, are obligated to align their arrangements with the principles of the revised Code.

Sport Integrity Australia is the Australian Government agency that focuses on the elimination of doping in sport, thereby contributing towards the overall integrity of Australian sport and the health of those who compete in sport.  Sport Integrity Australia’s powers and functions are specified in the  Sport Integrity Australia Act 2020 (Act) and the Sport Integrity Australia Regulations 2020 (Regulations), including the National Anti-Doping (NAD) Scheme, which comprises Schedule 1 to the Regulations. 

Sport Integrity Australia implements Code-compliant programs and activities that encompass deterrence (education and awareness), detection (testing and investigations) and enforcement (management of cases involving possible Anti-Doping Rule Violations (ADRVs)). Sport Integrity Australia works closely with Australia’s national sporting organisations (NSOs) to implement these arrangements. As a condition of receiving Australian Government funding or recognition, Australia’s NSOs are required to have an anti-doping policy that complies with the Code as well as acknowledging Sport Integrity Australia’s powers and functions under the Act and NAD scheme. 

All NSO anti-doping policies replicate the essential parts of the Code. This includes the provisions for the sanctioning of athletes and support persons who are found to have committed an ADRV. Penalties (sanctions) for ADRVs are not criminal penalties but involve ineligibility to participate in sport for a certain period, disqualification of results and the forfeiture of any medals, points, and prizes.

In late 2017, the World Anti-Doping Agency (WADA) initiated a comprehensive review of the Code.  This review included an extensive four stage consultation process allowing all stakeholders, including members of the international anti-doping community - international sporting federations, national anti-doping organisations, sporting organisations and governments - to discuss proposed revisions to the Code. The Australian Government participated in this review and provided feedback and comments on draft iterations of the Code at each stage of the review. To formulate its position, the Government consulted with NSOs, the Australian Sports Anti-Doping Authority (now moved into Sport Integrity Australia), the Australian Sports Drug Medical Advisory Committee, Sport Australia, and recognised Australian anti-doping experts.

Revisions to the Code arising from the review were adopted by the international anti-doping community at the World Conference on Doping in Sport in Katowice, Poland on 6 November 2019.

To ensure the continued operation of a globally harmonised anti-doping framework, international sporting federations and governments are now required to amend their own anti-doping frameworks to align with the revised Code and Standards by 1 January 2021.  As a signatory to the Convention, Australia is also obligated to amend its anti-doping arrangements to align with the principles of the Code.

Most of the changes to give effect to the revised Code will need to be made to the Regulations and to anti-doping policies of NSOs.  However, some amendments to the Act are required to ensure that the Regulations can give effect to the Code.  With these amendments, NSOs will be able to meet their anti-doping obligations to both their international sporting federation and as a condition of Australian Government funding through a single Code-compliant anti-doping policy. 

The Bill amends the Act to implement the following Code revisions:

·          Introduce a new category of person - ‘non-participant’ who may be subject to the NAD Scheme.

·          Provide the Sport Integrity Australia Chief Executive Office more discretion to not publish the details of a violation where it was committed by an athlete who competes for recreational purposes, or the CEO is satisfied the person does not have the mental capacity to understand the anti-doping rules.

·          Broaden the situations where the Sport Integrity Australia CEO may respond to public comment on matters that are not finalised.

Outside of the Code revisions, the Bill also amends the definition of athlete to include persons who competed in sport within the last six months to remove doubt that the definition could be interpreted narrowly to only include those persons who currently compete in sport. The Bill also makes consequential amendments to the National Sports Tribunal Act 2019 (NST Act) to provide a non-participant the authority to apply to the National Sports Tribunal (NST) for arbitration of a dispute arising under an anti-doping policy.

The NST Act currently only allows athletes and support persons to apply to the NST for arbitration of an anti-doping dispute - which reflects the scope of individuals subject to anti-doping arrangements under the Act. The proposed consequential amendments ensure that arbitration is available for any person that is subject to a sporting administration body’s anti-doping policy, including athletes, support persons, and non-participants.

Financial Impact Statement

There is no financial impact associated with this Bill.



Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

SPORT INTEGRITY AUSTRALIA AMENDMENT (WORLD ANTI-DOPING CODE REVIEW) BILL 2020

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

Australia’s anti-doping legislation gives effect to its international obligations under the binding  UNESCO International Convention against Doping in Sport (Convention).  The Convention requires States Parties to implement arrangements that are consistent with the principles of the World Anti-Doping Code (Code).  The Code is an international agreement that provides a framework for the operation of harmonised global anti-doping policies, rules, and regulations.

Sport Integrity Australia is Australia’s designated National Anti-Doping Organisation (NADO).  Sport Integrity Australia’s powers and functions are specified under the  Sport Integrity Australia Act 2020 (Act) and the Sport Integrity Australia Regulations 2020 (Regulations), including the National Anti-Doping (NAD) scheme.  The NAD scheme underpins Sport Integrity Australia’s implementation of a co-ordinated and Code compliant anti-doping program that encompasses deterrence and detection, and the results management of cases involving possible breaches of anti-doping rules.

Sport Integrity Australia works with Australia’s national sporting organisations (NSOs) to implement Code compliant anti-doping arrangements.  As a condition of receiving Australian Government funding or recognition, Australia’s NSOs are required to have an anti-doping policy that complies with the Code as well as acknowledging Sport Integrity Australia’s powers and functions under the Act and NAD scheme.

Following a two-year international review, revisions to the Code and associated International Standards (Standards) were adopted by the international anti-doping community - comprising international federations, national anti-doping organisations and Governments who have ratified the Convention - at the World Conference on Doping in Sport in Katowice, Poland on 6 November 2019. 

The review involved four phases of consultation where all stakeholders were invited to make submissions.  The consultation process was open for all to participate.  Over 400 submissions were received from 80 stakeholders throughout the process. 

Most changes to give effect to the revised Code will need to be made to the Regulations and to anti-doping policies of NSOs.  However, some amendments to the Act are required to ensure that the Regulations can give effect to the Code.

Measures in the Bill include:

·          Broadening the scope of individuals who may be subject to the NAD Scheme to include a person who is not an athlete nor support person, but is subject to a sporting administration body’s anti-doping policy,

·          Providing the Sport Integrity Australia CEO’s discretion to not publicly publish the details of an ADRV where the CEO is satisfied that the athlete competes for recreational purposes, or the person does not have the mental capacity to understand the anti-doping rules, and

·          Allowing the Sport Integrity Australia CEO to publicly respond to address misinformation where the comment is based on information that can be attributed to an athlete.

Separate to Code revisions, the Bill also extends when a person is an athlete under the Act to include the six-month period from the last time that person competed in sport.

 

Human rights implications

New Category of Persons - ‘Non-Participant’

This amendment engages:

·          Article 17 of the International Covenant on Civil and Political Rights (ICCPR) which states that no one shall be subject to arbitrary or unlawful interference with privacy, family, home or correspondence, or unlawful attacks on honour or reputation.

·          Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which includes the right to gain a living by work that is freely chosen.

·          Article 14 of the ICCPR which provides the right to a fair and public hearing.

As a result of the amendment, there may be situations where ‘non-participants’ are subject to the NAD Scheme when they otherwise would not have been. Consequently, non-participants may be subject to the powers of Sport Integrity Australia, such as complying with a disclosure notice, if it suspects that person has committed an ADRV. Further, where a non-participant commits an ADRV it may affect that person’s ability to find work in their field within a sporting administration body.

The amendment is considered reasonable and proportionate to both Article 17 of the ICCPR, and Article 6 of the ICESCR. Doping is a significant threat to sport integrity and the health and wellbeing of athletes. The amendment addresses a significant gap in the current Code’s jurisdiction where persons with the authority to facilitate doping can go without appropriate sanction under the Code, as demonstrated by the state-sponsored Russian doping scandal. Such individuals are equally culpable as an athlete or support person in the commission of doping, and it is appropriate they are subject to certain anti-doping rules.

Appropriate restrictions exist to ensure non-participants are only exposed to relevant provisions of the Code. For example, non-participants are only subject to provisions of the Code aimed at deterring doping facilitation. This includes trafficking or administration of prohibited substances or methods, tampering with doping control, complicity in the commission of doping, prohibited association with known doping facilitators, and retaliation against the report of possible doping. Non-participants will not be subject to whereabouts requirements, testing and sample collection, or commit a violation if they possess or use a prohibited substance or method. In addition, the Code notes that the requirement for a person to be bound an anti-doping policy is subject to applicable laws, such as employment law.

Non-participants subject to the NAD Scheme are afforded the same rights as athletes and support persons under the Act. This includes the right to be notified in writing about a possible breach of the anti-doping rules, and the opportunity to provide a written submission in response to that notification. In addition, the same safeguards to issue a disclosure notice exist for a non-participant, that is, the Sport Integrity Australia CEO must have a reasonable belief of a possible ADRV before the CEO can issue a disclosure notice.

Consequential amendments to the National Sports Tribunal Act 2019 (NST Act) as a result of the amendment to the Act to introduce the ‘non-participant’ definition promote Article 14 of the ICCPR, which state that all people are equal before the court and tribunals.

Section 22 of the NST Act currently only allows athletes or support persons to apply to the National Sports Tribunal (NST) for arbitration of a dispute arising under an anti-doping policy.

The amendments to the NST Act allow non-participants, as well as athletes and support persons, to apply to the NST for arbitration of a dispute arising under an anti-doping policy. This provides non-participants with an accessible and affordable option to have their matter heard by a tribunal that is institutionally and operationally independent from their sporting administration body.

Discretion to not publish the details on an ADRV

This amendment promotes Article 22 of the Convention on the Rights of Persons with Disabilities which states that no persons with disabilities shall be subject to arbitrary or unlawful interference with privacy or to unlawful attacks on his or her honour and reputation.

The Bill amends the Act to provide the Sport Integrity Australia CEO a discretion to not publish the details of an ADRV where it is committed by a person who, to the satisfaction of the CEO, does not have the mental capacity to understand the anti-doping rules. This reflects revisions to the Code that recognise it may not be appropriate to publish the details of the ADRV where the person did not have the mental capacity to understand the anti-doping rules.

The Code recognises that individuals with an intellectual disability can be vulnerable and may be subject to influence from doping facilitators or may not necessarily understand the anti-doping rules. As such, it is not appropriate to publish the details of an ADRV, and risk ruin of their reputation, where that person was exploited or did not understand that what they did was in breach of anti-doping rules.

Conclusion

This Bill is compatible with human rights as it promotes rights, and to the extent that it limits rights, these limitations are reasonable, necessary and proportionate to achieving a legitimate objective.

 

Senator the Hon Richard Colbeck, the Minister for Youth and Sport



SPORT INTEGRITY AUSTRALIA AMENDMENT (WORLD ANTI-DOPING CODE REVIEW) BILL 2O2O

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

 

Clause 1 provides for the short title of the Act to be the Sport Integrity Australia Amendment (World Anti-Doping Code Review) Act 2020 .

 

Clause 2 - Commencement

 

Clause 2 provides that the Act commences on a single day to be fixed by proclamation. However, if the provisions do not commence within the period of six months beginning on the day this Act receives Royal Assent, they commence on the day after the end of that period.

 

Clause 3 - Schedule(s)

 

This clause provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.



 

SCHEDULE 1 AMENDMENTS

 

Part 1 - Main amendments

 

Sport Integrity Australia Act 2020

 

Part 1 amends the Sport Integrity Australia Act 2020 (Act) to reflect revisions to the World Anti-Doping Code (Code) based on the extensive two-year review of the Code undertaken by the World Anti-Doping Agency, and also amends the definition of athlete to give effect to the intended operation of the National Anti-Doping (NAD) Scheme.

 

Item 1 - Section 4 (definition of athlete )

 

Doping is now incredibly sophisticated and harder to detect, and there are examples where it is only uncovered after an athlete has retired and no longer competes. It is important 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.

 

The Act currently defines ‘athlete’ as a person who competes in sport. The definition could be interpreted narrowly, to only include a person who currently competes in sport and exclude those persons who previously competed in sport. This interpretation would be detrimental to the NAD Scheme’s operation and restrict the ability of Sport Integrity Australia to investigate possible ADRVs.

 

This item amends the definition of ‘athlete’ to include, as well as a person who competes in sport, any person that has competed in sport at any time in the last six months - so long as that person is subject to the NAD Scheme.

 

Item 2 - Section 4 (definition of non-participant )

 

Item 2 inserts a definition for the new concept of a ‘non-participant’, as a person who is neither an athlete nor a support person, and who is bound by a sporting administration body’s anti-doping policy.

 

The current Code only subjects ‘athletes’ and ‘support persons’ to anti-doping arrangements. However, the Russian doping scandal demonstrated there are persons outside the definition of ‘athlete’ and ‘support person’ who play pivotal roles to facilitate doping in sport. These persons may include board members, directors, officers, and specified employees of anti-doping organisations, as well as delegated third-party testing agencies.

 

The revised Code acknowledges this gap in anti-doping arrangements and provides anti-doping organisations authority to subject such persons to the Code, noting this remains subject to applicable employment laws.

 

Item 3 - Section 8A

 

Item 3 amends the simplified outline of Part 2 of the Act to include the new concept of ‘non-participants’ in the scope of the NAD Scheme.

Item 4 - After subparagraph 10(1)(a)(ii)

 

Item 4 allows the Sport Integrity Australia CEO to amend the NAD Scheme in relation to the classes of non-participants that are subject to the NAD Scheme, consistent with the existing power to amend the NAD Scheme in relation to athletes and support persons.

 

Item 5 - Section 13 (heading)

 

Item 5 amends the heading of section 13 to include ‘non-participants’, alongside ‘athletes’ and ‘support persons’, to maintain a consistent format for headings which include those persons subject to the NAD Scheme.

 

Item 6

 

Item 6 provides authority for the NAD Scheme to specify that either all non-participants, or one or more specified classes of non-participants, are subject to the NAD Scheme.

 

The revised Code broadens the scope of individuals who may be subject to the anti-doping rules to include those involved with sport, but do not meet the definition of ‘athlete’ or ‘support person’. This may include board members, directors, officers, and specified employees of sporting administration bodies, as well as delegated third party testing agencies.

 

This is largely in response to the systemic state-sponsored doping program uncovered in Russia where many of the individuals who facilitated the scheme were outside the jurisdiction of the Code.

 

It is important to note that the Code states that a non-participant is not subject to all requirements of the Code. For example, a non-participant is not required to submit to sample collection and testing, and is only subject to violations of Code Articles 2.5 (tampering), 2.7 (trafficking), 2.8 (administration of a prohibited substance or method), 2.9 (complicity), 2.10 (prohibited association), and 2.11 (retaliation). In addition, 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.

 

Item 7 - Paragraph 13(1)(fa)

 

Item 7 repeals paragraph 13(1)(fa) to remove the authority for the NAD Scheme to require Sport Integrity Australia’s CEO to notify an athlete or other person that association, in a professional or sport related capacity, by an athlete or other person with a support person described in Article 2.10.1, 2.10.2, or 2.10.3 of the Code may be a possible violation of the anti-doping rules.

This authority is no longer required as the revised Code removes the requirement for an anti-doping organisation to notify an athlete or other person that they may be in violation of the anti-doping rule before issuing a formal notification to assert a prohibited association ADRV.

 

Items 8 - 18, 20 - 23, and 25

 

These items make consequential amendments throughout the Act to insert ‘non-participant’ wherever ‘athlete’ and ‘support person’ appear to ensure formatting consistency that all classes of persons subject to the NAD Scheme are mentioned where necessary.

 

Item 19

 

Item 19 broadens the Sport Integrity Australia CEO’s discretion to disclose details of a finalised ADRV in the Violation List on Sport Integrity Australia’s website to reflect the revised disclosure arrangement in the Code.

 

The Code places an obligation on anti-doping organisations to disclose the name of the person who committed the violation, the sport, the particular ADRV committed, the prohibited substance or method (if any) and the consequences imposed within twenty days of the matter’s finalisation. The Code recognises that, in certain circumstances, it is not appropriate to publicly disclose such details. This includes where the individual is under 18 years of age and it is the first ADRV committed by the individual, where disclosing the information could prejudice a current investigation into an ADRV, and where WADA has authorised the non-disclosure of the information.

 

The revised Code expands an anti-doping organisation’s discretion to not publicly disclose the information to include where the individual is a recreational athlete (and has not in the five years prior to the violation been a national-level or international-level athlete), or where it is considered that the individual does not have the mental capacity to understand the anti-doping rules.

 

Item 24

 

Section 68E of the Act allows the Sport Integrity Australia CEO to disclose protected information if:

·          the information relates to an athlete or support person or the representative of an athlete or support person, and

·          the public comments have been attributed to the athlete or support person, or a representative of the athlete or support person, and

·          the disclosure is for the purpose of Sport Integrity Australia responding to the comments.

 

Section 68E reflects obligations under Article 14.3.5 of the Code (14.3.6 of the revised Code). The revised Code expands when an anti-doping organisation may respond to public comments to address misinformation, to include where the information is not disclosed by the athlete or support person themselves, but the information can still be attributed to the athlete or support person. For example, where the athlete or support person discloses protected information to another person, who then discloses that information more publicly.

Item 24 amends section 68E to reflect broadened circumstances in the revised Code and include the ability to respond to comments from non-participants.

 

Item 26 - Application and Transitional Provisions

 

Paragraph 1 of Item 26 clarifies that the previous six months prior to the date of commencement should be disregarded.

 

Paragraph 2 clarifies that, for the purposes of Item 19, the Sport Integrity Australia CEO only has discretion to not publish a violation where it was committed on, or after, commencement of the item.

 

Paragraph 3 clarifies that, for the purposes of Item 24, the disclosure of information can only occur where the information was provided or attributed on or after commencement.

 

Part 2 - Consequential amendments

 

Part 2 contains consequential amendments to the NST Act to provide the new class of persons under the Act, ‘non-participants’, authority to apply to the NST for arbitration under an anti-doping policy.

 

The NST Act currently restricts applications for arbitration in the Anti-Doping Division and the Appeals Division (for anti-doping matters) to an athlete or support person subject to an anti-doping policy that recognises the anti-doping division of the NST. This is consistent with the classes of persons subject to the Act, which only subjects an individual to anti-doping arrangement if that person meets the definition of athlete or support person.

 

To ensure a consistent approach with the Government’s decision to establish the NST as an affordable and accessible tribunal for sporting disputes, these consequential amendments provide authority for all persons subject to a dispute under an anti-doping policy to apply for arbitration in the NST.

 

Items 27 - 47

 

Items 27 to 47 amend the NST to remove references to ‘athlete’ and ‘support person’, and replace them with a generic reference to ‘person’, to provide a broad authority for any person subject to anti-doping arrangements to apply for arbitration in the NST.

 

Item 48 - Saving provision

 

Item 48 specifies that the amendments in Part 2 do not affect the validity of an application or appeal made by an athlete or support person to the NST before the commencement of this item.