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Australian Sports Anti-Doping Authority Amendment Bill 2014

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2013 - 2014

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT BILL 2014

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Sport, the Hon Peter Dutton)





AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT BILL 2014

 

OUTLINE

 

The Australian Sports Anti-Doping Authority Amendment Bill 2014 aligns Australia’s anti-doping legislation with the revised World Anti-Doping Code (the Code) and International Standards (Standards) that come into force on 1 January 2015.

Australia’s anti-doping legislation gives effect to its international obligations under the UNESCO International Convention Against Doping in Sport (UNESCO Convention).  The UNESCO 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 harmonised rules and regulations around the world.

The international sporting community, including the International Olympic Committee and international 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 176 governments who have ratified the UNESCO Convention, such as the Australian Government, are obligated to align their arrangements with the principles of the revised Code.

The Australian Sports Anti-Doping Authority (ASADA) 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.  ASADA’s powers and functions are specified under the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act) and the Australian Sports Anti-Doping Authority Regulations 2006 (ASADA Regulations), including the National Anti-Doping (NAD) Scheme, which comprises Schedule 1 to the ASADA Regulations. 

ASADA implements Code-compliant programmes and activities that encompass deterrence (education and awareness), detection (testing and investigations) and enforcement (management of cases involving possible Anti-Doping Rule Violations (ADRV)).  ASADA works closely with Australia’s national sporting organisations (NSOs) in implementing 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 ASADA’s powers and functions under the ASADA 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 who are found to have committed an ADRV.  Penalties (sanctions) for ADRVs are not criminal penalties but involve bans from sport for a certain period, disqualification of results and the forfeiture of any medals, points and prizes.

In late 2011, the World Anti-Doping Agency (WADA) initiated a comprehensive review of the Code.  This review included an extensive three-stage consultation process allowing all members of the international anti-doping community - international sporting federations, national anti-doping organisations and governments - to discuss proposed revisions to the Code.  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 Johannesburg, South Africa on 15 November 2013. 

The key revisions to the Code include:

·            an enhanced focus on the role of investigations and intelligence gathering;

·            mandatory four year sanctions for certain ADRVs relating to the use of performance enhancing substances such as anabolic steroids;

·            a relaxation of the rules surrounding the requirements for specific athletes to provide ongoing notification of their whereabouts to facilitate testing (known as the ‘whereabouts requirements’), which have been criticised in the past as being unfair and harsh;

·            systems to promote more effective and efficient testing regimes to maximise the chances of catching doping by ensuring that the testing targets the substances most likely to be used by athletes in that sport; and

·            a new requirement on sporting organisations that coaches and support staff do not use prohibited substances themselves.

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 2015.  As a signatory to the UNESCO Convention, the Australian Government 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 ASADA Regulations and to anti-doping policies of NSOs.  However, some amendments to the ASADA 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. 

Amendments to align the ASADA Act with the revised Code

 

New Prohibited Association Anti-Doping Rule Violation (ADRV)

The Code currently specifies a list of eight actions that individually constitute an ADRV. 

The international anti-doping community has agreed to increase the number of violations from eight to ten.  This includes a new violation called ‘Prohibited Association’.  It will become an ADRV for an athlete to associate in a professional or sports-related capacity with an athlete support person who is serving a period of ineligibility or who has been convicted of a crime or sanctioned for professional misconduct for activity that otherwise would constitute a doping violation.  This ADRV is designed to curtail the influence of people with a proven history of doping and with the skills to facilitate systematic doping programmes. 

The amendment provides for the making of regulations that enable the ASADA Chief Executive Officer (CEO) to implement this violation.

Extending the Limitation Period

Currently, action on a possible ADRV must be commenced within eight years from the date the violation is asserted to have occurred.  The Code has been revised so that, from 1 January 2015, authorities will have up to ten years within which to commence action.

This change improves the scope for anti-doping agencies to uncover sophisticated doping programmes and provides greater scope for the retrospective analysis of stored samples as new technologies to identify prohibited substances are developed.

This Bill amends the Act to reflect this extension in the limitation period.



 

Australian Sports Drug Medical Advisory Committee

The Australian Sports Drug Medical Advisory Committee (ASDMAC) is responsible for considering applications by athletes for the legitimate therapeutic use of prohibited substances or methods through the granting of Therapeutic Use Exemptions (TUEs).  The TUE process aims to ensure that athletes can obtain the legitimate medical treatment they require without committing an ADRV.

Under the revised Code, anti-doping organisations are explicitly required to provide for reviews of decisions on TUEs.  While there is a clear authority for ASDMAC to approve TUE applications in Australia, the mechanisms available to athletes to appeal decisions of ASDMAC if unsuccessful are limited.  Currently, the only recourse for an athlete to challenge such a decision is to the WADA.  

The Bill provides for an expansion of the ASDMAC membership so that the responsible Minister may appoint three people with the sole function of reviewing ASDMAC decisions in the first instance.  While these people are ASDMAC members, amendments to the ASADA Act are proposed that will quarantine the review members from the ASDMAC

decision-making process so that reviews are independent of the initial decision.

The Bill also seeks to enshrine in the ASADA Act the requirement of the revised Code that at least one member of ASDMAC should have experience in the care and treatment of athletes with impairments.  While the current ASDMAC membership meets this requirement, it is appropriate to legislate to make it a mandatory consideration in making future appointments to ASDMAC.

Information Management

With investigations and intelligence gathering now considered to be an integral element of any strategy for detecting doping, the revised Code emphasises the need for effective information flows between government agencies, sporting bodies and anti-doping organisations.  This Bill enhances and simplifies the information sharing provisions in the ASADA Act to improve the exchange of information between relevant stakeholders that would assist in identifying and substantiating doping violations.

The Bill seeks to repeal the current sections of the ASADA Act which distinguish between NAD scheme personal information, NAD scheme contract personal information and protected Customs information; and re-structure the information sharing provisions around a single concept of protected information.  Protected information will be defined as information obtained under or for the purposes of the ASADA Act or a legislative instrument made under the ASADA Act that relate to the affairs of a person and could be used to identify that person.  It will be an offence for an entrusted person to disclose that information unless it is an authorised disclosure.  Authorised disclosures will be prescribed in the ASADA Act and ASADA Regulations.   

Violations List

Athletes and support persons should be aware that, given the need for the anti-doping process to be transparent and accountable, the details of an anti-doping rule violation may be made public.  It is current practice for ASADA to report on its website the details of an ADRV once a matter is finalised.  Consistent with Article 14 of the Code, it is proposed that ASADA will be now be required to maintain a public record of ADRVs, to be known as the ‘Violations List’.

The Violations List will include information such as the name of an athlete or athlete support person; date of birth; relevant sport; team; nature of the violation; date when the ADRV was determined and the period of ineligibility and any other consequences imposed. 

The Bill provides discretion for the ASADA CEO not to place the details of a violation on the Violations List in limited circumstances.  These include a first violation by a person under the age of 18 years.

Public Disclosure of Information

Article 14.3.5 of the Code provides that no anti-doping organisation shall publicly comment on the specific facts of a pending case, except in response to public comments attributed to an athlete, other person or their representatives. 

While existing legislation prevents public comment by ASADA on specific facts of a pending case it does not recognise expressly this exception, which is provided for in the Code.  A public comment may be required from ASADA to correct or clarify facts where an athlete or their representative initiates discussion publicly about his or her case. 

Minor Amendments

A number of minor or technical amendments are proposed in the Bill.  A definition for recognised laboratory has been added to reflect the accreditation process specified in the International Standard for Laboratories, the definition of international standard and registered medical practitioner have been updated and reference to ‘safety checking service’ removed to better reflect current practice.

Other Amendments

The operation of the Register of Findings (Register) midway through the ADRV process creates complexity and confusion leading some people to assume that the Anti-Doping Rule Violation Panel (ADRVP) is the final hearing body for an ADRV.  Its purpose is to review the evidence collected by ASADA.  An entry on the Register only indicates that, based on the evidence the ADRVP has reviewed, it is possible that an ADRV has taken place.  Once an entry is made, the matter is referred to a sports administration body for determination. 

The Full Federal Court observed in Anti-Doping Rule Violation Panel v XZTT [2013] FCAFC 95 that, despite the terms used in legislation, the ADRVP makes an ‘assertion’ of a violation, rather than ‘finding’ that an athlete has committed the breach.  In that case, the Full Federal Court considered that the Administrative Appeals Tribunal (AAT) had erred by treating the ADRVP as if it was to make actual findings of violations and record such findings on the Register. 

It is proposed to reduce complexity and the scope for misunderstanding by referring to assertions rather than findings in the ASADA Act and by removing the Register.  The term assertion is used in the Code.

Placing an entry on the Register is currently a trigger to allow a number of notifications to be made under the NAD scheme.  These include ensuring that the athlete has the right to appeal to the AAT.  Despite the removal of the Register, the right of a person to appeal to the AAT in respect of an assertion made by the ADRVP will be retained. 

The amendments will commence on 1 January 2015.

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

 

AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT BILL 2014

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 (UNESCO Convention).  Chiefly, the UNESCO 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 the framework for the operation of harmonised anti-doping policies, rules and regulations around the world. 

The Australian Sports Anti-Doping Authority (ASADA) is the focal point for the Australian Government’s efforts against doping in sport.  ASADA’s powers and functions are specified under the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act) and the Australian Sports Anti-Doping Authority Regulations 2006 (the Regulations), including the National Anti-Doping (NAD) scheme.  The NAD scheme underpins ASADA’s implementation of a co-ordinated Code-compliant anti-doping programme encompassing deterrence, detection and the management of cases involving possible breaches of anti-doping rules.

ASADA 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 ASADA’s powers and functions under the ASADA Act and NAD scheme.  The majority of NSOs are also required to have a Code-compliant policy as a condition of affiliation to their international federation.  This membership enables Australian sportsmen and women to compete in major international events such as Olympic Games and World Championships.

All NSO anti-doping policies replicate the essential parts of the Code.  These include the provisions for the sanctioning of athletes who are found to have committed an anti-doping rule violation (ADRV).  Penalties (sanctions) for doping violations include bans from sport for a certain period, disqualification of results and the forfeiture of any medals, points and prizes.

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 UNESCO Convention - at the World Conference on Doping in Sport in Johannesburg, South Africa on 15 November 2013. 

The review involved three phases of consultations where all stakeholders were invited to make submissions.  The consultation process was open for all to participate.  Over 315 submissions were received from stakeholders and 144 stakeholder meetings were conducted by World Anti-Doping Agency (WADA). 

The review was conducted at a time when stakeholders widely acknowledged that, with the potential rewards that come from sporting success combined with the availability of more advanced substances and techniques that have a very short detection period or are not able to be detected easily, the incentive to cheat through doping has grown.  The key themes that underpinned the revisions to the Code include:

·            supporting the increasing importance of investigations and use of intelligence in the detection of doping;

·            longer periods of ineligibility for serious doping cheats (eg steroid use) and more flexibility in sanctioning for other circumstances (eg when a person takes a substance inadvertently in contaminated products);

·            a greater capacity to sanction athlete support persons (eg coaches, trainers etc) who are or have been involved in doping;

·            greater emphasis on promoting smarter and better targeted testing programmes; and

·            increased cooperation between international sporting federations and national anti-doping organisations.

It is now incumbent on the international anti-doping community to amend their anti-doping frameworks to align with the revised Code and Standards by 1 January 2015.  As signatories to the Code, international federations are currently updating their anti-doping policies to align with the requirements of the revised Code.  As a signatory to the UNESCO Convention, the Australian Government is also obligated to amend its anti-doping arrangements to align with the principles of the Code.

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

Measures in the Bill include:

·            Prohibited Association - authorises the making of Regulations to authorise the CEO to implement the new prohibited association anti-doping rule violation.  Prohibited association will occur when an athlete or other person associates in a professional or sports-related capacity with athlete support persons who are banned from sport, or who have been criminally convicted or professionally disciplined for conduct which would be an ADRV.  This amendment aligns with new Article 2.10 of the Code.

·            Limitation Period - extends the time period in which action on a possible anti-doping rule violation must commence from eight to ten years from the date the violation is asserted to have occurred.  This amendment aligns with Article 17 of the Code.

·            ASDMAC review mechanism - expands ASDMAC membership to appoint three people for the sole purpose of reviewing decisions, where requested, by ASDMAC in relation to applications for Therapeutic Use Exemptions.  This amendment aligns with Article 4.4.2 of the Code.

·            ASDMAC membership - it becomes a requirement that least one ASDMAC primary member must possess general experience in the care and treatment of athletes with impairments.  This change reflects a requirement in the revised International Standard for Therapeutic use Exemptions.

·            Information Sharing - with greater prominence given to role of investigations and intelligence gathering, in the Code, there is a greater emphasis on the need for effective information flows.  Accordingly, the information management provisions in the ASADA Act are being simplified and enhanced.

·            Violations List - While it is current practice for ASADA to report on its website the details of an ADRV once the matter is finalised , t he amendments seek to regulate that practice through the Violations List .   This amendment aligns with Article 14 of the Code.

·            Public Disclosure - allows ASADA to respond to public comments attributed to an athlete, other person or their representatives with respect to a doping matter.  This amendment aligns with Article 14.3.5 of the Code.

·            the opportunity is taken to simplify the ASADA Act, including the removal of the Register of Findings.

The Code has been drafted with due consideration given to the principles of proportionality and human rights.  WADA, as custodians of the Code, ensured these principles were preserved in drafting the revisions by engaging Jean-Paul Costa, a former President of the European Court of Human Rights, to provide advice on the international human rights aspects of the revisions throughout the review process.  Mr Costa’s final opinion on the revised Code was tabled at the World Conference in November 2013.

 

Human rights implications

The proposed amendments engage a number of human rights, including:

·                 Article 22 of the International Covenant on Civil and Political Rights (ICCPR) - right to the freedom of association.

·                 Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) - right to work

·                 Article 2(3a) of the- right to an effective remedy,

·                 Article 14 of the ICCPR - right to fair and public hearing

·                 Article 13.2 of the Convention on the Rights of Persons with Disabilities (CRPD) - right to justice.

·                 Article 17 of the ICCPR - privacy and reputation.

·                 Article 26 of the ICCPR - right to be equal before the law.

 

Prohibited Association Anti-Doping Rule Violation (ADRV)

The Bill includes amendments to the ASADA Act to provide for the ASADA Chief Executive Officer (CEO) to implement the new prohibited association ADRV. 

It has been shown in Australia and internationally that doping can be facilitated by coaches, trainers, people with medical expertise and other athlete support persons.  In some cases, these people operate outside the jurisdiction of the sporting body or national anti-doping authorities, but are able to exercise considerable influence over athletes. 

The international anti-doping community has agreed that the influence of people with a proven history of facilitating doping in sport should be curtailed.  From 1 January 2015, the Code will provide that it will be an ADRV for an athlete or support person to associate in a professional or sports-related capacity with another person who is banned from sport for the period of their ineligibility or a person who has been criminally convicted or professionally disciplined for an action that would constitute an ADRV.  In the former case, the prohibition will be for the period of the person’s ineligibility.  In the latter case, the prohibition will be for the period of six years from the conviction or disciplinary action.

Implementing this violation engages Article 22 of the ICCPR.  Article 22 of the ICCPR specifies, in part, the following:

(1) Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

(2) No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

There may be some situations covered by this ADRV that would engage the right to freedom of association.  For example, the ADRV would appear to prohibit athletes from associating with a coach, trainer or physician as part of a sports club (eg, if a physician serving a period of ineligibility joined a sports club, and purported to give advice to the other members of the club, including the athletes in the club).

Article 22(2) provides for lawful restrictions on the freedom of association if the following three requirements are met:

1.              The restriction must be prescribed by law.

2.              The restriction must be necessary in the interests of national security or public safety, public order (ordre public), the protection of public health or morals, or the protection of the rights and freedoms of others.

3.              The restriction must be necessary in a democratic society.

The first requirement is met as the prohibited association violation will be prescribed by the ASADA Act, ASADA Regulations, and the NAD scheme.  

For the second requirement to be satisfied, the restriction must be in the necessary interests of one of the prescribed purposes.  The inclusion of this violation is important in the protection of public health and morals.  The very purpose of the Code is to protect the fundamental right of an athlete to participate in doping-free sport and thus promote health, fairness and equity for all athletes globally.  Anti-doping programmes are implemented globally to preserve the values of sport - teamwork, dedication, commitment, respect for the rules and to promote a sense of community.

Many parents encourage their children to play sport and many governments sponsor programmes that use sport to achieve development outcomes because of the intrinsic values that sport promotes.  These values are undermined whenever an elite athlete commits an ADRV.  Moreover, if a culture of doping is allowed to flourish at the elite level, there are real risks that it will extend down to those who participate in community sport, risking the health of many individuals.

For the third requirement to be satisfied, the restriction must also be necessary in a democratic society.  In other words; the restriction must be proportionate to the purpose of the activity.   It is important to appreciate that conventional drug testing methods are often not effective in meeting the threats posed by developments in doping practices.  Unscrupulous people purporting to support athletes are likely to take the opportunity to influence the athlete to exploit new and undetectable means of seeking an advantage through the use of prohibited substances and methods. 

After careful consideration and consultation with stakeholders, WADA has felt it necessary to introduce a means by which athletes can be prevented from associating in a professional or sports-related capacity with support persons who have a proven recent history of conduct that would constitute an ADRV.

There are a number of protections associated with the specification of this ADRV that make it a proportionate response to the spread of doping by limiting the influence of doping facilitators:

·                 the violation can only be imposed on athletes covered by the NAD Scheme, as part of a number of anti-doping obligations that they are required to comply with;

·                 an ADRV can only occur after an athlete has been notified by the ASADA CEO of the support person’s disqualifying status and the fact the association with that person in a professional or sports related capacity constitutes an ADRV;

·                 the ADRV will only be committed where the athlete opts to continue the association in a professional or sports-related capacity.

·                 the prohibition on association only applies to persons who have committed an ADRV or who have been convicted of a crime or professionally disciplined for misconduct which would have been considered to be an ADRV in a sporting context;

·                 the prohibition only applies for a limited time (ie, while a person is serving a period of ineligibility, or the longer of six years from the criminal, professional or disciplinary decision or the duration of the criminal, disciplinary or professional sanction imposed); and

·                 anti-doping authorities are required to undertake best efforts to advise a person that they have fifteen days to explain why they do not fit the criteria for determining that an association between an athlete and them should be prohibited.

WADA has drafted this ADRV to ensure that an athlete can maintain personal relationships with other family members.  An ADRV would only be established if the association is one that the athlete or other person can reasonably avoid.  The only limitation on a family member is that they will not be able assist the athlete in their preparation, involvement or participation in sport should they fit the criteria for prohibited association.

Despite these protections, to minimise any risk of this violation impermissibly limiting the right to freedom of association, a provision will be included in the ASADA Regulations to the effect that the new ADRV only applies insofar as it is not inconsistent with Article 22 of the ICCPR.

Article 6 of the ICESCR:

The right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.’ 

A qualified person who delivers services to athletes on a professional basis may lose the athlete’s business if found to have committed offences and other transgressions that would amount to an ADRV.  While this violation may affect a person’s ability to gain a living through their involvement in sport, it does not affect their capacity to use their skills generally.

At the World Conference in November 2013, it was reported that Mr Costa provided a favourable opinion on the specification of the prohibited association ADRV from an international human rights perspective.

Australian Sports Drug Medical Advisory Committee

The Australian Sports Drug Medical Advisory Committee (ASDMAC) is responsible for assessing applications by athletes for the legitimate therapeutic use of substances or methods that are otherwise prohibited from sport.  The granting of a Therapeutic Use Exemption (TUE) allows athletes to access legitimate and essential medical treatment without the risk of committing an ADRV.

Currently, an Australian athlete who wants to appeal a decision by ASDMAC would need to appeal to WADA.  Revisions to the Code have highlighted the need for an appropriate domestic review mechanism when a TUE application is rejected. 

The proposed amendment to the ASADA Act seeks to expand the maximum number of ASDMAC members by three with these members appointed for the sole purpose of reviewing decisions by ASDMAC. 

This proposed amendment engages positively with Article 2(3a) of the ICCPR -

To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity’.

as well as Article 14 of the ICCPR:

‘All persons shall be equal before the courts and tribunals. …………. everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’

The introduction of this review process improves an Australian athlete’s access to seek an effective remedy should they feel aggrieved by a decision by ASDMAC.  Athletes will, in the first instance, no longer have to apply to a body based overseas for a review. The establishment of this mechanism also protects the integrity of the TUE process.

An amendment to the composition of ASDMAC is also proposed whereby it becomes a legislative requirement that at least one member of ASDMAC must possess general experience in the care and treatment of athletes with impairments.  The term ‘impairment’ reflects the wording of the Code. 

In practical terms, there are members of ASDMAC who already possess this experience.  However, the proposed amendment formally recognises the needs of athletes with an impairment.  In this way, the proposed amendment promotes Article 13.2 of the CRPD:

‘In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.’

Information Management

With the increasing sophistication of doping, anti-doping authorities are shifting towards the use of smarter detection regimes that incorporate testing, intelligence gathering and investigation techniques.  With anti-doping authorities expected to build their investigative capability to improve detection, there is a greater need to ensure that authorities have access to the information they require.  Accordingly, the information management provisions in the ASADA Act are to be simplified and enhanced to improve information flows.

Article 17 of the ICCPR is engaged by this amendment:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

The ASADA Act currently provides for the disclosure of personal information in the circumstances specified.  These circumstances facilitate the performance of ASADA functions.

There are currently strict secrecy provisions regulating the disclosure of some types of information held by ASADA.  The amendments will offer a clearer basis for those provisions with all personal information collected for or under the Act being ‘protected information’.  There remain strict limitations on the release of that information and provision has been made for it to be used or disclosed in giving effect to the anti-doping regime set out in legislation.

 

It is also recognised that there may be imperatives requiring the disclosure of information for other purposes, for example, if ASADA uncovers information about the misconduct of an individual who is beyond the jurisdiction of the Code or where the conduct is so serious it requires attention beyond the Code.  The CEO retains discretion to disclose protected information in certain circumstances so that the secrecy provisions do not frustrate the broader public interests that may be triggered in respect of information held by ASADA.

 

The offence in section 67 applying to an entrusted person disclosing protected information is not triggered where the disclosure is authorised or required pursuant to certain other laws. Like the secrecy provisions already in the ASADA Act, the new section 67 creates an evidential burden on a defendant who seeks to show that a disclosure was authorised or required within the terms of subsection 67(2).

 

The placing of an evidential burden on the defendant in relation to these exceptions engages the right to be presumed innocent in article 14(2) of the ICCPR Article 14(2) of the ICCPR provides that persons charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

 

Reverse burden provisions will not violate the presumption of innocence if they are reasonable in the circumstances and maintain the rights of the accused.  Such a provision may be justified if the nature of the offence makes it very difficult for the prosecution to prove each element, or if it is clearly more practical for the accused to prove a fact than for the prosecution to disprove it. 

 

The scope of ‘entrusted persons’ to whom the secrecy provision applies is broad as are the potential sources of authority for a disclosure.  It will not reasonably be possible for a prosecution to disprove every conceivable source of authority in many cases, when that information is within the knowledge of the entrusted person who made the disclosure.  In order to protect the information effectively, it will be necessary for a defendant to raise the authority to an evidential standard consistent with subsection 13.3(3) of the Criminal Code and consistent with the existing legislation.

 

ASADA will continue to be prevented from providing information publicly on the specific facts of a pending case.  However, under the Bill and consistent with Article 14.3.5 of the Code, ASADA will be able to respond to public comments attributed to an athlete, other person or their representatives prior to the finalisation of a case. 

Consideration was given to whether these amendments engage Article 17 of the ICCPR.  While this amendment may engage Article 17 of the ICCPR, this ability to disclose is only available to the ASADA CEO after public comments have been made by an athlete or representative.  A response may be needed to correct or clarify facts where an athlete initiates discussion publicly about his or her case.  It is important that the public’s access to information is not distorted by secrecy requirements that are inconsistent with the Code.  It facilitates the smooth operation of the ADRV process by reducing the prospect of there being no public misconceptions about ASADA’s actions in performing its functions.

Being subject to the Code, an athlete and his/her representatives can be reasonably expected to be aware of Article 14.3.5 of the Code and that any public comments they make may invite a public response.  Accordingly, recognising expressly in the Act this aspect of the Code is considered to be a proportionate amendment.

Violations List

For the anti-doping process to be transparent and accountable, the public needs to be informed of the details of individual anti-doping rule violation.  An athlete’s knowledge that an ADRV will not be kept secret from the public still serves as one of the strongest deterrents against doping.  It is current practice for ASADA to report on its website the details of an ADRV once a matter is finalised.  Consistent with Article 14 of the Code, under the amendments, the ASADA CEO will be now be required to maintain a public record of ADRVs, to be known as the ‘Violations List’.

The information included on the Violations List is based on the requirements specified in Article 14.3 of the Code and will include information such as the name of an athlete or athlete support person; date of birth; relevant sport; team; nature of the violation; date when the ADRV was determined and the period of ineligibility and any other consequences imposed. 

Consideration was given to whether these amendments engage Article 17 ICCPR.  The Violations List is considered necessary to maintain the transparency of the ADRV process and to ensure consistency with the Code.  Article 14 of the Code outlines principles for the coordination of anti-doping results, public transparency and accountability while respecting the privacy of all athletes and other persons.  While Australia’s anti-doping arrangements require the identity of those people who are under investigation by ASADA remain confidential, once a doping matter has been finalised, it is important to maintain transparency, probity and public confidence in the ADRV process by releasing the details of the ADRV. 

To protect the rights of athletes, names will not be published on the Violations List until after the ADRV process has been completed and athletes have had the opportunity to appeal decisions.  Moreover, the details of the ADRV only remain on the Violations List for the term of the athlete’s period of ineligibility. 

Ultimately, athletes are best placed to ensure that their names are not published on the Violations List by not committing an ADRV.

The Bill also provides the ASADA CEO with some discretion not to publish the details of an ADRV on the Violations List when:

·            the person is under the age of 18 when the ADRV was committed and it is their first violation;

·            the publishing of the violation may compromise an ongoing investigation; and

·            when, under the Code, WADA has authorised the non-inclusion of information.

Consideration was given to whether these amendments engage Article 26 of the ICCPR:

‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

Making provision for the non-publication of details of an ADRV by a minor on the Violations List is consistent with the Code.  This principle recognises that a minor may be more easily influenced into doping than other athletes because minors can be the victims of people who are close to them who encourage and facilitate doping.  Minors generally have less expertise, experience and education to be able to resist such pressure.

Register of Findings

In order to simplify the operation of Australia’s anti-doping arrangements, it is proposed to remove the requirement for the Anti-Doping Rule Violation Panel (ADRVP) to maintain a Register of Findings (the Register).  An entry on the Register only indicates that, based on the evidence the ADRVP has reviewed, it is possible that an ADRV has taken place.  The matter is then referred to a sports administration body for determination. 

The operation of the Register midway through the ADRV process creates complexity and confusion by leading people to believe incorrectly that the ADRVP is the hearing body for ADRVs when its purpose is merely to review the evidence collected by ASADA.

The Full Federal Court observed in Anti-Doping Rule Violation Panel v XZTT [2013] FCAFC 95 that, despite the terms used in legislation, the ADRVP effectively makes an ‘assertion’ of a violation, rather than ‘finding’ that an athlete has committed the breach.  In that case, the Full Federal Court considered that the Administrative Appeals Tribunal (AAT) had erred by treating the ADRVP as if it was to make actual findings of violations and record such actual findings on the Register.  These amendments reduce complexity and the scope for misunderstanding by referring to assertions rather than findings and removing the Register.

Placing an entry on the Register is currently a trigger to allow a number of notifications to be made under the NAD scheme.  This includes providing the athlete with the right to appeal to the AAT.  Despite the removal of the Register, amendments are proposed that retain the right of a person to appeal to the AAT in respect of an assertion made by the ADRVP.  In this way, amendments to the provisions relating to the Register do not affect human rights.

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.

 

 

The Hon Peter Dutton MP, the Minister for Sport

 

 



 

AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT BILL 2014

 

NOTES ON CLAUSES

 

Clause 1:    Short title

This clause provides that the Bill, once enacted, may be cited as the Australia Sports Anti-Doping Authority Amendment Act 2014 .

 

Clause 2:   Commencement

Sections 1 to 3 of the Bill will commence on the date that the Act receives the Royal Assent.  Schedules 1 to 6 of the Bill will commence on 1 January 2015.

 

Clause 3:   Schedule(s)

This clause provides that each Act 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 - PROHIBITED ASSOCIATION

 

Amendments to the Australian Sports Anti-Doping Authority Act 2006

 

Item 1:   Section 4 (definition of athlete )

This item amends the definition of ‘athlete’ consistent with the definition in the revised Code.

 

Under the Code, an anti-doping organisation has discretion to direct its activities to different classes of athlete.

 

Item 2:   Section 4 (definition of support person )

This item amends the definition of ‘support person’ consistent with the definition in the revised Code.

 

Item 3:   After paragraph 13(1)(f)

Section 13 of the ASADA Act specifies what the NAD scheme must contain.  New paragraph 13(1)(fa) provides authority in the NAD scheme to authorise the ASADA Chief Executive Officer (CEO) to commence the new Prohibited Association anti-doping rule violation (ADRV) by notifying an athlete or other person that an association with a particular person in a professional or sports related capacity may be a possible ADRV.

 



 

SCHEDULE 2 - AUSTRALIAN SPORTS DRUG MEDICAL ADVISORY COMMITTEE

 

Amendments to the Australian Sports Anti-Doping Authority Act 2006

 

Item 1:   Section 4

This item inserts a definition of ‘Australian Sports Drug Medical Advisory Committee (ASDMAC) primary member’ and ‘ASDMAC review member’ to distinguish between the ASDMAC members who make TUE decisions in the first instance and those members whose role is only to review these decisions, when requested.

 

Item 2:   Section 4 (paragraph (b) of the definition of vacancy )

Section 4 includes a definition of ‘vacancy’ to clarify that a vacancy relating to the primary members of ASDMAC has a meaning affected in Section 5.

 

Item 3:   Paragraph 5(2)(a)

This item confirms an ASDMAC vacancy referred to in paragraph 5(2)(a) only relates to a vacancy in the office of an ASDMAC primary member.

 

Item 4:   Subsection 5(2)

This item confirms an ASDMAC vacancy referred to in paragraph 5(2)(a) only relates to a vacancy in the office of ASDMAC primary members.

 

Item 5:  paragraph 53(b)

Section 53 details the membership of ASDMAC.

 

Paragraph 53(b) is amended to provide for at least 3, and not more than 6, ASDMAC primary members.

 

Item 6:   At the end of section 53

New paragraph 53(c) is added to reflect the 3 ASDMAC review members that will be part of ASDMAC’s membership.

 

Item 7:   After subsection 54(2)

Subsection 54(2) lists the qualifications and other requirements that people must possess if they are to be appointed as ASDMAC members.

 

New subsection 54 (2AA) specifies that at least one ASDMAC primary member must possess general experience in the care and treatment of athletes with impairments.  This change reflects a requirement in the revised International Standard for Therapeutic use Exemptions.

 

Item 8:   Subsection 56(2)

Subsection 56(2) prescribes the circumstances in which the Minister can appoint acting ASDMAC members.

 

This item updates subsection 56(2) and inserts subsection 56(2A) to recognise the distinction between acting ASDMAC primary members and acting ASDMAC review members, explaining the circumstances in which each may be appointed. 

 

Item 9:   Paragraph 56(3)(b)

Subsection 56(3) specifies that a person cannot act as the ASDMAC Chair or an ASDMAC member if they do not meet the eligibility criteria for appointment as an ASDMAC member.

 

Paragraph 56(3)(b) is amended and new paragraph 56(3)(c) is added to include a reference to ASDMAC primary and ASDMAC review members.

 

Item 10:   After subsection 65(1)

Subsection 65(1) provides that the regulations may specify the manner in which ASDMAC is to perform its functions, and the procedures to be followed at or in relation to ASDMAC meetings.

 

New subsection 65 (1A) provides for regulation to make different provisions in relation to meetings for the ASDMAC Chair, ASDMAC primary members and ASDMAC review members.

 

This will enable the regulations to differentiate between the role of ASDMAC primary members (who assess TUE applications), and the ASDMAC review members who may review ASDMAC decisions in relation to TUE applications that were rejected.

 

Item 11:   Subsection 65(2)

Subsection 65(2) relates to the circumstances whereby a resolution is taken to have been passed at a meeting of ASDMAC.

 

This item makes it clear that the circumstances by which a resolution is reached in relation to subsection 65(2) can only be made by a majority of ASDMAC members, excluding ASDMAC review members.

 

Item 12:   Paragraphs 65(2)(a) and (b)

Confirms that these paragraphs refer to ASDMAC members other than the ASDMAC review members.

 

Item 13:   After subsection 65(2)

New subsection 65(2A) is added to specify the circumstances whereby a resolution is taken to have been passed at a meeting of the ASDMAC review members.

 

Item 14:   After subsection 65(3)

This item updates subsection 65(3) to include a reference to new paragraph 65(2A)(a) so that all ASDMAC members are subject to the restriction in section 59.

 

Item 15:   Subsection 65(4)

This item updates subsection 65(4) to include reference to the new subsection 65(2A).  A majority of all ASDMAC members, including the Chair, primary members and review members will be required to make a determination bringing subsection 65(2) and 65(2A) into effect.

 

Item 16:   Paragraph 65(4)(a)

This item makes a minor amendment to reflect that subsection 65(4) now refers to two subsections and that a determination may be made in respect of either or both of them.

 

Item 17:   Paragraph 65(4)(b)

This item makes a minor amendment to reflect that subsection 65(4) now applies to two types of ASDMAC members and may make determinations in respect of either type.

 

Item 18:   Transitional - ASDMAC members

This transitional item specifies that on commencement of this Bill, current ASDMAC members (other than the Chair) are to be taken as an ASDMAC primary member.

 

 



 

SCHEDULE 3 - VIOLATION LIST

 

Part 1 - Amendments to the Australian Sports Anti-Doping Authority Act 2006

 

Item 1:   Section 4

This item confirms that a reference to an ‘anti-doping rule violation’ is a reference to a violation of an anti-doping rule in the NAD scheme.

 

Item 2:   Section 4 (definition of finding )

This item removes the definition of ‘finding’.  This term will be replaced in relevant sections with the word ‘assertion’, consistent with the terminology in the Code.

 

Item 3:   Section 4

This item inserts definitions for ‘ineligibility’ and ‘Violations List’. The Violations List established under new section 19A is a publically available record of current ADRVs.  This item inserts a definition of ‘ineligibility’ as it is a term used in the proposed Violations List provisions.

 

Item 4:   Subparagraph 10(1)(a)(vi)

Subsection 10(1) provides for the ASADA CEO to amend the NAD scheme by legislative instrument so long as the amendment relates to certain matters set out in that subsection.

 

This item updates the matter referred to in subparagraph 10(1)(a)(vi), to reflect the amendments which abolish the Register of Findings and introduce a Violations List.

 

Item 5:   Paragraph 13(1)(h)

Section 13 outlines what the NAD scheme must contain.

 

This item amends paragraph 13(1)(h) to authorise the Anti-Doping Rule Violation Panel (ADRVP)  to make assertions rather than findings in relation to any possible violation of the anti-doping rules.  The term ‘assertion’ is consistent with the Code in describing the relevant part of the process, before an asserted ADRV is heard and determined.  

 

Item 6:   Paragraph 13(1)(i)

This item amends paragraph 13(1)(i), removing the requirement of the ADRVP to establish and maintain a register of findings, and replacing it with the requirement of the ADRVP to notify the ASADA CEO when it makes an assertion.

 

Item 7:   Paragraph 13(1)(j)

This item updates paragraph 13(1)(j) to authorise the ASADA CEO to notify athletes, support persons and sporting administration bodies of assertions made by the ADRVP.   It removes the reference to the ASADA CEO notifying those persons and bodies of findings on the Register.

 

Item 8:   Paragraph 13(1)(ja)

This item updates 13(1)(ja) to authorise the ASADA CEO to provide recommendations to sporting administration bodies as to the consequences of assertions made by the ADRVP, instead of the consequences of ADRVP findings.



 

Item 9:  Subparagraph 13(1)(k)(i)

This item authorises the ASADA CEO to present assertions rather than findings at the relevant sporting tribunal.

 

Item 10:  Paragraph 13(1)(l)

This item repeals the paragraph thereby removing the requirement for the ADRVP to make entries on, and to remove entries from, the Register of Findings.

 

Item 11:  Paragraph 13(1)(m)

This item replaces the ADRVP’s ‘findings’ with ‘assertions’ in respect of specifying the circumstances in which the ASADA CEO can publish information.

 

Item 12: Subparagraph 13(1)(m)(ia)

This item provides that the NAD scheme can authorise publication of information relating to the ADRVP’s assertions when permitted by the Code, in addition to when it is required under the Code.

 

The Code contemplates that certain information may be published without phrasing it as a mandatory requirement.

 

Item 13:  Subsection 14(3)

Subsection 14(3) outlines certain rights for an athlete or support person to be reflected in the NAD scheme in respect of the ADRVP process. 

 

This item updates the wording of subsection 14(3) to reflect the ADRVP may make assertions rather than entering findings on the Register.

 

Item 14:  Subsection 14(4)

Subsection 14(4) provides the athlete with the right to apply to the Administrative Appeals Tribunal (AAT) to review a decision by the ADRVP to enter his or her details onto the Register of Findings.

 

This item ensures that the right to review by the AAT is retained, but is based instead on a decision by the ADRVP to make an assertion rather than a decision to enter findings onto the Register of Findings.

 

Item 15:  Paragraphs 15(2)(d) and (e)

Current paragraphs 15(2) (d) and (e) provide examples of certain sporting administration body rules relating to ADRVP findings.

 

This item updates these paragraphs to reflect that the ADRVP makes assertions rather than findings.

 

Item 16:  After Part 2

New Part 2A - provides for the ASADA CEO to establish a ‘Violations List’.

 

The trigger to include a name on the list will be when the ASADA CEO becomes aware that an ADRV has been finally determined, either by an individual accepting a sanction or once a reasoned hearing decision has been given by a tribunal and any appeal has been finalised.

 

The Violations List, which will be available for public inspection on the internet, will include the athlete’s name, date of birth, sport, team (if applicable), the nature of the ADRV, date of the ADRV, period of ineligibility, and any other consequences imposed.

 

Names are to remain on the list at least until the end of their ineligibility.  If a person is ineligible for less than one month, their name will remain on the List for at least one month.

 

In order to protect the interests of our younger athletes, the ASADA CEO will have the discretion not to publish the details of athletes who committed an ADRV when they were under the age of 18 where it is a first offence.

 

The ASADA CEO also has the discretion to not publish or delay publishing information on the Violations List if they are satisfied that the inclusion of the information is likely to prejudice a current investigation into a possible ADRV, or where WADA has authorised the non-inclusion of the information.

 

Subsection 19A(9) specifies that the Violation List is not a legislative instrument.  This subsection was included to assist readers as the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

Item 17:  Paragraph 21(1)(a)

Section 21 specifies the ASADA CEO’s statutory functions.

 

This item amends paragraph 21(1)(a) to provide that the ASADA CEO has the functions conferred by the entire Act and not just those in Part 2 of the Act. 

 

Item 18:  Paragraph 21(1)(m)

This item amends paragraph 21(1)(m) to remove the reference to ‘this Act’ as paragraph 21(1)(a) provides that the ASADA CEO has the functions conferred in the entire Act. 

 

Item 19:  Subsection 41(1)(note)

This item omits paragraph 13(1)(l) from the note, as that paragraph is repealed by item 10.

 

Part 2 - Application provisions

Item 20:  Application - findings

The item ensures that the proposed changes relating to the removal of the Register do not apply to findings on the Register before the commencement of this Schedule.

 

Item 21:  Application - Violations List

This item clarifies that the proposed Violations List only relates to ADRVs that the ASADA CEO becomes aware of after the commencement of this Schedule.

 

Item 22:  Application - Administrative Appeals Tribunal review

This item ensures that the proposed subsection 14(4) amendment in relation to the AAT does not apply in relation to a decision by the ADRVP made before the commencement of this Schedule.

 



 

Schedule 4 - Information MANAGEMENT

 

Part 1 - Amendments to the Australian Sports Anti-Doping Authority Act 2006

 

Item 1:   Section 4

This item repeals the definitions of the current classifications of information in the ASADA Act which will be replaced with the new concept of ‘protected information’.

 

Item 2:   Section 4

This item adds a definition for the new concept of ‘protected information’.

 

This item simplifies the information to which the secrecy provisions in the ASADA Act apply.  Protected information will be defined as information obtained under or for the purposes of the ASADA Act or a legislative instrument made under the ASADA Act that relate to the affairs of a person, and which identifies or is reasonably capable of being used to identify that person.

 

Item 3:   Paragraph 24J(2)(e)

Current paragraph 24J(2)(e) provides for the Minister to terminate the appointment of the ASADA CEO if they commit an offence against current section 71 or 72 of the Act.

 

As part of the improvements to the Information Management provisions, the offences currently in sections 71 and 72 will be added to the amended secrecy provision.

 

This item updates paragraphs 24J(2)(e) to reflect this proposed change.

 

Item 4:   Subsection 24N(1)

This item removes the reference to the power to give a disclosure notice from subsection 24N(1).  It is now included in subsection 24N(2) along with other restrictions on the ASADA CEO’s delegation power.

 

Item 5:  Subsection 24N(2)

This item sets out the restrictions in the ASADA CEO’s delegation power that exists currently in subsection 24N(1) and in subsection 24N(2), and adds a further restriction in respect of the ASADA CEO’s information management functions or powers under the amended Part 8.

 

Item 6:   After subsection 24N(3A)

This item provides a separate delegation power for the ASADA CEO in respect of the amended Part 8 functions or powers.  The ASADA CEO may delegate functions and powers under the amended Part 8 but only to ASADA employees at the Senior Executive Service level.

 

Item 7:   Paragraphs 37(2)(e), 50C(e) and 63(3)(f)

Current paragraphs 37(2)(e), 50C(e) and 63(3)(f)  provide for the Minister to terminate the appointment of the an ASADA Advisory Group member, ADRVP member and an ASDMAC member if they commit an offence against current Section 71 or 72 of the Act.

 

As part of the amendments to the Information Management provisions, the offences will be contained in new section 67 Secrecy.

This item updates paragraphs 37(2)(e), 50C(2)(e), and 63(3)(f) to reflect this amendment.

 

Item 8:   Division 1 of Part 8

Division 1 Part 8 contains provision around Information Management.

 

This item repeals the current Division which distinguishes between NAD scheme personal information, customs protected information and contract services personal information.  It is replaced with a simpler regime involving ‘protected information’, with a view to simplifying and enhancing the capacity to communicate information relevant to the ASADA Act to persons or bodies who need it.

 

New section 67 makes it an offence for an entrusted person to disclose protected information unless it is an authorised disclosure.  The definition of ‘entrusted person’ is unchanged, capturing a variety of persons who may access protected information in the course of their activities relevant to the ASADA Act

 

The maximum penalty for unauthorised disclosure of protected information is imprisonment for two years.

 

Subsection 67(2) recognises that a disclosure is not unlawful if it is authorised by a provision of Part 8, or if it is required to be made under a law of the Commonwealth, or under state or territory law which is prescribed for these purposes.  Consistent with subsection 13(3) of the Criminal Code, the defendant bears an evidential burden in establishing that the offence in subsection 67(1) does not apply because one of the circumstances in subsection 67(2) exists.  Noting the large number of entrusted persons who may assert a lawful authority or obligation to disclose protected information, the basis for any given disclosure will be peculiar within the knowledge of the defendant.  It would not be possible for a prosecution to readily disprove every conceivable basis for a disclosure, in the absence of that knowledge.

 

Subsection 67(3) retains an immunity from being required to disclose personal information in courts, tribunals and other authorities or bodies with coercive powers, in certain circumstances.  The purpose of this provision is to prevent protected information being required in litigation or other purposes unrelated to the NAD scheme.

 

New section 68 authorises the disclosure of protected information by an entrusted person if it is:

·            for the purpose of the ASADA Act or a legislative instrument made under the ASADA Act; or

·            required or permitted under the Code; or

·            for the purposes of the performance of the functions or the exercise of the powers, of the ASADA CEO, the ADRVP, ASDMAC or the ASADA Advisory Group.

 

New section 68A enables an entrusted person to disclose protected information if the person who the protected information relates to consents, and if the disclosure is in accordance with that consent.

 

New section 68B authorises the ASADA CEO to disclose protected information if they are satisfied the information will assist a person or body perform or exercise any of their functions, duties or powers.

The ASADA CEO may impose condition in writing to be complied with by the body or person in relation to the protected information disclosed.  Subsection 68(7) specifies that this letter is not a legislative instrument.  This subsection was included to assist readers as the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

New section 68C authorises an entrusted person to disclose protected information if it is reasonably believed it will prevent or lessen a threat to the life or health of an individual.

 

New section 68D authorises an entrusted person to disclose information that has already been lawfully made available to the public.

 

New section 68E authorises the ASADA CEO to disclose protected information in response to public comments attributed to an athlete, support person or representative of the athlete or support person.

 

Item 9:   Division 2 of Part 8 (heading)

This item removes the heading ‘Division 2—Protection of personal information’. 

 

Having regard to the simplification of Part 8A, there is no longer a requirement for separate Divisions.

 

Item 10:   Sections 71 to 73

This item repeals the sections 71 to 73 which are replaced with the updated Information Management provisions described above.

 

Item 11:   Subsection 74(2)

This item removes a reporting requirement relevant to current section 68(5A), which will be replaced under these amendments.

 

Part 2 - Amendment of the Customs Administration Act 1985

Item 12:   After paragraph 16(9)(ib)

Currently, ASADA’s access to Customs information is regulated by section 67 of the ASADA Act.  This item amends the Customs Administration Act 1985 so that the Act provides the capacity for the Australian Customs and Border Protection Service to disclose information it holds, for the purpose of the NAD scheme.

 

Part 3 - Application provisions

Item 13:   Application - information management

This item confirms that the amendments relating to disclosures only apply to disclosures made after the commencement of this item, regardless of whether the information was obtained by the relevant entity before or after commencement.

 

Item 14:   Application - annual report

This item confirms that the removal of the reporting requirement specified in subsection 74(2) applies to annual reports for financial years beginning after the commencement of this schedule.

Schedule 5 - other amendments

 

Part 1 - Amendments to the Australian Sports Anti-Doping Authority Act 2006

 

Item 1:   Section 4 (definition of accredited foreign laboratory )

This item removes the definition of ‘accredited foreign laboratory’.  Accredited foreign laboratories will be captured under a new broader definition of ‘recognised laboratories’.

 

Item 2:   Section 4 (paragraph (d) of the definition of foreign sporting organisation )

Section 4 includes a definition of ‘foreign sporting organisation’.  Paragraph (d) of the definition is currently includes ‘an accredited foreign laboratory’.

 

This item amends paragraph (d) to reflect the proposed new definition relating to a recognised laboratory.

 

Item 3:   Section 4 (definition of International Standard )

This item amends the definition of ‘International Standard’ consistent with the definition in the revised Code.

 

Item 4:   Section 4 (definition of recognised laboratory )

This item inserts a definition for a ‘recognised laboratory’

 

Item 5:   Section 4 (definition of registered medical practitioner )

This item amends the definition of ‘registered medical practitioner’ to ensure it refers to the Health Practitioner Regulation National law Act 2009 (National Law) of Queensland.

 

Item 6:  Section 4 (definition of safety checking service)

This item removes the definition of ‘safety checking service’ as it is a redundant term that no longer has a practical use in modern anti-doping practice.

 

Item 7:   Subsection 13(3)

Subsection 13(3) currently provides for the NAD scheme to include a provision that action on a possible anti-doping rule violation must be commenced against an athlete or other person within eight years from the date the violation is asserted to have occurred. 

 

This item amends subsection 13(3) so that, consistent with the revised Code, action can be initiated within ten years of the alleged violation.

 

Item 8:   Subparagraph 21(k)(ii)

Subparagraph 21(k)(ii) provides for the ASADA CEO to undertake safety checking services on behalf of the Commonwealth.

 

This item removes Subparagraph 21(k)(ii) as safety checking services is a redundant term that is no longer required in modern day anti-doping practice.

 

Item 9:   Paragraph 21(2)(i)

This item removes the reference to ‘safety checking services’ as it is a redundant term that is no longer required in modern day anti-doping practice.



 

Item 10:   Paragraph 24(2)(b)

This item removes the reference to ‘safety checking services’ as it is a redundant term that is no longer required in modern day anti-doping practice.

 

Item 11:   Subparagraph 52(1)(c)(ii)

This item removes the reference to ‘safety checking services’ as it is a redundant term that is no longer required in modern day anti-doping practice

 

Item 12:   Subparagraphs 58(3)(d)(iii) and (iv)

Subsection 58(3) provides examples of interests that ASDMAC members are to disclose.

 

This item removes the references to ‘safety checking service’ as this term is redundant.

 

Item 13:   Paragraphs 59(4)(g) and (h)

Subparagraph 59(4) provides examples of interests that ASDMAC members would be required to disclose before deliberating on or deciding a particular matter.

 

This item removes the references to ‘safety checking service’ as this term is redundant.

 

Australian Sports Commission Act 1989

 

Item 14: Subsection 57A(2)

Section 57 A of the Australian Sports Commission Act 1989 (ASC Act) describes circumstances where the Australian Sports Commission can disclose information to the ASADA CEO.

 

Subsection 57A(2) states that information disclosed under subsection 57A(1) is to be taken as NAD scheme personal information for the purposes of ASADA Act.

 

This item replaces the word ‘NAD scheme personal information’ with ‘protected information’, consistent with the amendments to the Information Management provisions in the ASADA Act.

 

PART 2 - APPLICATION PROVISIONS

 

Item 15: Application - statute of limitations

The amendment to subsection 13(3) increases the statute of limitations from eight to 10 years.

 

This item provides that the amendment of subsection 13(3) applies in relation to ADRVs alleged to have occurred on or after 1 January 2007.



 

Schedule 6 - SIMPLIFIED OUTLINES

 

Amendments to the Australian Sports Anti-Doping Act 2006

 

Items 1 - 12

Simplified outlines for different parts of the ASADA Act are included to provide a general understanding of the Act.