Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Australian Sports Drug Agency Amendment Bill 1992



Download PDFDownload PDF

House: Senate

Portfolio: Arts, Sport, the Environment and Territories

!*!*!|;!*!*!|;!*!*!|;!*!*!|;!*!>*/;!*!*!|

Purpose

To enable the Australian Sports Drug Agency (ASDA) to recognise, in certain circumstances, the procedures of foreign anti- doping bodies; allow the ASDA to enter into arrangements with certain foreign sporting organisations for the collection and testing of samples; and enable the ASDA to request foreign anti- doping bodies to test Australian competitor's overseas.

Background

An interim ASDA was established in August 1989 in response to the recommendations of the Senate Standing Committee on Environment, Recreation and the Arts. The Committee presented two reports. An Interim Report tabled in May 1988, examined the extent of drug use in Australian sport, underlying for that usage, issues relating to the supply of drugs and allegations about drug use at the Australian Institute of Sport. The Second Report, tabled in May 1990, examined professional sports and power sports, the national and international regulatory background, together with health and general concerns about the impact of drugs on society.

Legislation to formalise the establishment of the ASDA was introduced during the Budget Session in 1990. The Australian Sports Drug Agency Act 1990 (the Principal Act) came into effect in February 1991. The objects of the ASDA include to encourage the practice of sport free from the use of drugs; encourage the development of programs to educate the sporting community and the general community about the dangers of using drugs in sport; and encourage the establishment of a centralised drug sampling and testing program that exposes all competitors to sampling and drug testing, at short notice, at sporting events, during training and at any other time. The functions of the ASDA include to collect samples from competitors and to arrange for the testing of samples by accredited laboratories; develop and implement educational programs to discourage the use of drugs in sport; and to establish and maintain a Register of Defaulting Competitors (note: the name of the Register will be changed by this Bill to the Register of Notifiable Events).

The ASDA conducted 2656 drug tests in 1990- 91. 1 Of this total, 1581 were taken during a competition and 1075 out- of- competition. 2 The table below contains select statistics about ASDA drug tests conducted in 1990- 91. 3

Sport

Tested During Competition

Tested Out Of Competition

Total

Rugby League

274

196

470

Athletics

166

108

274

Cycling

222

38

260

Powerlifting

148

26

174

Rowing

77

40

117

On a user- pay basis, the ASDA conducted drug tests for the New South Wales Rugby League, Queensland Rugby League, Australian Football League and South Australian National Football League in 1990- 91. 4

In 1990- 91, the ASDA registered seventy- one competitors who failed drug tests, thirteen of whom had refused to undertake a drug test and fifty- eight of whom tested positive for the presence

of an International Olympic Committee listed drug. 5 Of these positive drug tests, twenty- eight were for

prohibited drugs and eight for restricted drugs. 6 Twenty- two drug tests resulted from inadvertent use of medicines. 7

The principal amendment proposed by this Bill is to enable the ASDA to recognise, in certain circumstances, the procedures of foreign anti- doping bodies. The origin of this amendment lies in events surrounding the Australian cyclist Martin Vinnicombe. Martin Vinnicombe is a 27 year old former world amateur cycling one- kilometre champion and dual Commonwealth Games gold medallist who is to represent Australia at the professional world titles in Spain in August 1992. 8

In May 1991, Vinnicombe tested positive to the performance enhancing drug 'stanozol' ('stanozol' is an anabolic steroid used to stimulate muscle and bone growth) in the United States. Subsequently, the world cycling controlling body, the Union Cycliste Internationale (UCI), suspended Vinnicombe from competition cycling for three months. The Australian Cycling Federation (ACF) and the Australian Professional Cycling Council (APCC) imposed a two year suspension on Vinnicombe. In February 1992, the UCI requested the ACF and APCC to issue Vinnicombe with a professional cycling licence. The ACF and APCC ignored the request. In late 1991, Vinnicombe commenced actions in the Federal Court against the ASDA, the Australian Sports Commission, the ACF and APCC over the two year ban. His challenge was based on restraint of trade provisions in the Trade Practices Act 1974 and the way in which the test was administered. Subsequently, the matter was listed by the Federal Court for mediation.

On 24 April 1992, the Federal Court Mediator ruled that regulations relating to drug testing under the Principal Act were not complied with in Vinnicombe's case and he was therefore not to be taken to have returned a positive test. In The Australian of 25 April 1992, it is reported that as a result of the decision, the ACF, APCC and the Australian Sports Commission have agreed that Vinnicombe could apply for a professional cycling licence immediately, but could not apply for an amateur licence for 12 months (Note: In The Australian of 19 May 1992, it is reported that the Federal Court granted Vinnicombe leave to proceed with his action against the ASDA on the ground of restraint of trade under the Trade Practices Act 1974. The matter is listed for mention in July 1992).

Main Provisions

The definition of 'competitor' in the Principal Act will be widened by clause 3 to include a person:

* who competes in an Australian national sporting event;

* who has been prevented, or become ineligible, from participating in sport because of an approved anti- doping body (see proposed section 66C below) or sporting organisation finding that they used a scheduled drug or doping method;

* whom the ASDA, following a request from a foreign anti- doping body (i.e. an accredited laboratory in a foreign country or an International Sporting Federation), or foreign sporting organisation, requests to provide a sample; or

* whom the ASDA under a contract or arrangement entered into under proposed section 66B (see below) requests to provide a sample.

Section 4 of the Principal Act provides that a reference in the Principal Act to a request for a competitor to provide a sample, is a request of the ASDA for the purpose of detecting whether or not they have used a scheduled drug or doping method. Reference to the ASDA in section 4 will be removed by clause 4 and the word 'made' substituted. The effect of this amendment will be to provide for recognition under the Principal Act of a request for samples by bodies other than the ASDA.

Where a State or Territory law ('Territory' is defined in this Bill to include Norfolk Island) providing for the collection of samples from sportspersons taking part in sporting events/activities, and the testing of samples for the presence of a scheduled drug or doping method, confers a power/function on the ASDA, the ASDA may excise that power/function (clause 6).

Section 12 of the Principal Act provides that a competitor will not be taken to have failed to comply with a request to give a sample unless the ASDA has requested them to do so in a way which complies with the regulations. A new subsection 12(1A) will be inserted into the Principal Act by clause 9. Proposed subsection 12(1A) provides that for the purposes of the Principal Act, a competitor is only to be taken to have failed to comply with a request from an approved anti- doping body (see proposed section 66C below) for a sample unless the way the request was made is in accordance with the International Olympic Charter Against Doping in Sport.

Sub- section 15(1) of the Principal Act provides that a competitor is not to be taken to have returned a positive test unless: the ASDA has requested the competitor to provide the sample in the prescribed way; the taking, identification, attestation, transport and testing of the sample was carried out by an accredited laboratory; and the ASDA was notified of the results of any tests of the sample and notified the competitor of those results, in the prescribed way. Sub- section 15(2) of the Principal Act requires the regulations to provide for the procedures to be followed in taking samples from competitors, identification and attestation of samples, transport of samples, testing of sample, notification of results of testing to ASDA and competitors. In addition, the regulations are required to provide that a competitor who has provided a sample will be entitled to be present at, or represented at, any subsequent testing of the sample if the initial testing reveals the possibility of a positive result, and ASDA is to notify each competitor who provides a sample of their entitlement to be present at, or represented at, any subsequent testing of the sample and the possible consequences of the sample returning a positive test result.

Sub- sections 15(1) and 15(2) will be omitted by clause 10 and new sub- sections 15(1)- (2A) inserted. Proposed section 15(1) provides that a sample provided by a competitor is to be dealt with according to the procedural requirements applying to that sample. Where a sample is provided to the ASDA in Australia, or a competitor who is an Australian citizen or permanent resident provides a sample to the ASDA outside Australia, and if at the time it is provided the competitor is not competing at an international sporting event and the ASDA's request is not made following a foreign sampling request, certain procedural requirements will have to be met, including that:

* the sample be taken in accordance with the prescribed procedures;

* the testing of the sample be carried out by an accredited laboratory; and

* the ASDA and the competitor be notified in the prescribed way as soon as possible of the results of any tests.

Proposed sub- section 15(2A) provides that where a competitor provides a sample to the ASDA: * at an international sporting event in Australia; or

* following a foreign sampling request; or

* the ASDA collects a sample under an anti- doping arrangement or under a contract or arrangement under proposed section 66B (see below); or

* to an approved anti- doping body;

certain procedural requirements will have to met. The procedural requirements will be those set out in the International Olympic Charter Against Doping in Sport for: sample collection; sealing of containers containing samples; transportation of samples to an accredited laboratory; analysis of samples; and competitor's rights in relation to testing of samples. (Note: the term 'foreign sampling request' is defined by clause 3 to mean a request from a foreign anti- doping body, sporting body in a foreign country of which the competitor is a member, or a foreign government sports agency, to take a sample from a competitor for the purpose of testing for a scheduled drug or doping method.)

Section 16 of the Principal Act provides that where a competitor has returned a positive test result, the ASDA is as soon as practicable, after being notified of the test result, to enter on the Register the competitor's name and any prescribed particulars. The ASDA is not allowed to enter on the Register a competitor's name or any prescribed particulars unless it has carried out prescribed checking procedures and not discovered any breach of regulations made for the purposes of section 15 of the Principal Act.

Section 16 will be repealed and new sections 16- 16D inserted into the Principal Act by clause 11. Under proposed section 16, the ASDA is, where a competitor returns a positive test result, to notify them of the result, inform them of their right to submit evidence which may support an ASDA determination that the test result is invalid, and determine whether or not the test result is valid. The ASDA may determine that a positive test is invalid only where certain procedural requirements have not been met, including where: the sample was not tested by an accredited laboratory; or the sample was tampered with by someone other than the competitor or person chosen by the competitor to oversee the collection or testing of the sample. Where the ASDA determines that a positive test result is valid, the ASDA is as soon as practicable to notify the competitor of certain matters, including: the reasons for the decision and that they may have the decision reviewed by the Administrative Appeals Tribunal.

The ASDA is, as soon as practicable, to enter on the Register of Notifiable Events (the Register) a competitor's name and prescribed particulars where they are an Australian citizen or permanent resident who has returned a positive test result and that positive test has been validated by the ASDA (proposed section 16A).

The ASDA is, as soon as practicable after testing a sample provided by a competitor who is not an Australian citizen or permanent resident, to give notice of their name and prescribed particulars about the test results to certain specified persons and bodies, including: the competitor; each sporting organisation of which they are a member or with which they are associated; or any person or organisation who under the International Olympic Charter Against Doping in Sport or an anti- doping arrangement the ASDA is required to notify (proposed section 16D).

New sections 66B- 66D, that deal with arrangements with foreign sporting organisations for the collection and testing of samples, recognition of foreign anti- doping bodies and ASDA requests to approved anti- doping bodies to take samples of Australian competitors, will be inserted into the Principal Act by clause 13. Proposed section 66B provides that the ASDA may enter into contracts or arrangements with a sporting organisation in a foreign country, a foreign anti- doping body or foreign government sports agency under which the ASDA may do certain things, including: collecting samples for the purpose of testing for scheduled drugs or doping methods; arranging for the testing of samples by an accredited laboratory; and giving notice of test results to persons tested and organisations specified in the contract. Proposed section 66B also gives the ASDA power to do anything required or necessary to give effect to a contract or arrangement.

Proposed section 66C will enable the ASDA to approve procedures of foreign anti- doping bodies where satisfied procedures relating to certain matters including: sample collection, analysis of samples at an accredited laboratory; and competitor's rights in relation to testing of a sample; accord with International Olympic Charter Against Doping in Sport procedures. The ASDA is to prepare and maintain a list of approved anti- doping bodies.

Proposed section 66D provides that the ASDA may request an approved anti- doping body to take a sample from an Australian citizen or permanent resident who is in a foreign country.

References

1. The Australian Sports Drug Agency, Annual Report 1990- 91, p. 18.

2. Ibid., p.30.

3. Ibid., pp. 29 and 30.

4. Ibid., p. 18.

5. Ibid.

6. Ibid.

7. Ibid.

8. The Canberra Times, 2 May 1992.

Bills Digest Service 24 June 1992

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1992.

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1992.