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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;
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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.
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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'.
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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.
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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).
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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.
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Violations List -While it is current practice for ASADA to report on its website the
details of an ADRV once the matter is finalised, the 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.
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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.
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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.
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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'.
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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.
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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
12
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
13
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.
14
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.
15
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.
16
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.
17
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.
18
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.
19
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.
20
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.
21
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.
22
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.
23
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.
24
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.
25
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 57A 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.
26
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.
27