Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN SPORTS DRUG AGENCY REGULATIONS 1991 NO. 19

STATUTORY RULES 1991 No. 19

AUSTRALIAN SPORTS DRUG AGENCY ACT 1990

AUSTRALIAN SPORTS DRUG AGENCY REGULATIONS

Section 73 of the Australian Sports Drug Agency Act 1990 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Act, which comes into operation on 18 February 1991, establishes the Australian Sports Drug Agency (the Agency) as an independent statutory authority. The Agency's primary objectives are to educate the sporting and general communities on health and fair play issues related to drug use in sport and to carry out an independent drug sampling and testing program on sportspeople at sporting events, during training sessions and out of competition.

Sections 12, 14, 15, 16 and 17 of the Act require regulations to be prescribed in respect of the sampling, testing, notification and reporting procedures to be followed by the Agency in the performance of its functions.

Section 12 requires the regulations to provide for the manner in which the Agency can request competitors to provide samples. Section 12 further requires that the regulations make provision for certain rights and entitlements of the competitor, including that the competitor be informed of these rights and entitlements.

Section 14 requires the regulations to specify the particulars which are to be entered on the Register of Defaulting Competitors if a competitor fails to comply with a request to provide a sample.

Section 15 requires the regulations to provide for the procedures that are to be followed in relation to the taking, identification and attestation, transport and testing of samples; and notification of results to the Agency and the competitor who provided the sample. Section 15 also requires the regulations to provide for certain rights and entitlements of the competitor in relation to the collection and testing of the sample.

Section 16 requires the regulations to specify the particulars which are to be entered on the Register of Defaulting Competitors if a competitor provides a sample which returns a positive test result. Section 16 further requires the Agency to check that sample collection and testing procedures have been carried out in accordance with the regulations before entering the details of a positive test result on the Register.

Section 17 requires the regulations to provide for the forms of notices that the Agency is to give, in order to advise persons and organisations entitled under the provisions of section 17 to be so advised, of the details of entries on, or the removals of entries from, the Register of Defaulting Competitors. Section 17 further requires the regulations to specify the manner in which those notices are to be given.

Section 32 provides that the regulations may prescribe remuneration and allowances payable to the Chairperson, Deputy Chairperson, Chief Executive and members of the Agency if no determination has been made in this regard by the Remuneration Tribunal.

The following sets out the details of the Australian Sports Drug Agency regulations:

Regulation 1 provides that the Regulations be cited as the Australian Sports Drug Agency Regulations.

Regulation 2 provides that the Regulations commence on the day the Act commences (18 February 1991).

Regulation 3 defines the meaning of the terms used in the Regulations.

Regulation 4 provides for the Agency to appoint drug control officials. These officials oversee the sample collection process and arrange for the transportation of samples to an accredited laboratory. The regulation also requires the Agency to ensure that drug control officials are issued with identity cards to identify them as Agency officials.

Regulation 5 provides for the Agency to appoint chaperones. Chaperones participate and assist in the sample collection process. The regulation also provides that a drug control official can also be a chaperone. The regulation requires the Agency to ensure that chaperones are issued with identity cards to identify them as Agency officials, and that officials surrender these cards when their employment in this capacity ceases.

Regulation 6 requires drug control officials and chaperones to produce their identity cards if requested to do so by a competitor to whom a request to provide a sample is made. The regulation also provides that if a drug control official or chaperone does not produce his or her identity card on request, the competitor is not required to comply with the request to provide a sample.

Regulation 7 requires a drug control official or chaperone who finds he or she has a potential conflict of interest in relation to the collection or testing of the sample of a competitor to report that potential conflict of interest to the Agency. The regulation also provides for the Agency to determine whether a potential conflict of interest reported to it warrants replacement of a drug control official or chaperone in respect of the collection and testing of the sample of a particular competitor. The regulation defines the circumstances in which a drug control official or chaperone may be taken to have a conflict of interest in relation to the collection or testing of a sample.

Regulation 8 requires the Agency to ensure that a competitor is notified of his or her selection to be requested to provide a sample. The regulation provides that the request to provide a sample can be made by telephone, in writing, or in person, and that any such request include advice as to the time and place at which the sample is to be provided. The regulation also provides that if a competitor can put a reasonable case to explain why he or she would be unable to come to a specified place at a specified time to provide a sample, the Agency may agree with the competitor to collect the sample at a different place or time. The Agency is required to offer to pay reasonable expenses incurred by the competitor in travelling to the place at which the sample collection is to occur. The identity of the competitor is to remain confidential to the Agency, the drug control official and the chaperone until the competitor is notified.

Regulation 9 provides that a chaperone can request, in person, a competitor selected by the Agency to provide a sample at any reasonable time. The regulation also provides that any request for a sample made to a competitor in person may require the competitor to provide a sample as soon as practicable after the request is made. If a competitor does not comply with a request to provide a sample after receiving a request by telephone or in writing, the regulation provides that a chaperone may make the same request of the competitor in person. The regulation provides that a competitor who has been requested by telephone or in writing to provide a sample, and is then subsequently requested, in person, to provide a sample is not required to comply with the telephoned or written request.

Regulation 10 provides that if the Agency or a drug control official requests a competitor by telephone to provide a sample for testing then the request must be confirmed in writing. In practice the requirement for confirmation in writing will be satisfied when the competitor is given a Notification Form by a chaperone on behalf of the Agency. A Notification Form also provides confirmation of the fact that a competitor has been notified of his or her selection to provide a sample in accordance with the Regulations.

Regulation 11 sets out the procedures to be adopted by a chaperone on contacting the competitor, in person, including identifying himself or herself as a chaperone; advising the competitor that the Agency has selected the competitor to be requested to provide a sample; providing the competitor with a copy of an Information Sheet; completing, asking the competitor to sign, and providing the competitor with a copy of the Notification Form; requesting the competitor to agree to provide a sample; advising the competitor of his or her entitlement to have a representative present during the collection and testing of the sample; and asking the competitor to accompany the chaperone to the drug control facility. The Information Sheet provides those competitors requested to provide samples with information about the procedures that will be followed during the sample collection and testing process. The regulation provides that the Information Sheet and the Notification Form shall be substantially the same as those in the schedules to the Regulations. The regulation also sets out the obligations of the chaperone and the drug control official if a competitor fails to comply with a request to provide a sample.

Regulation 12 sets out the rights and entitlements of a competitor before the competitor accompanies a chaperone to the drug control facility, including arranging for a representative and/or interpreter to accompany the competitor to the drug control facility; receiving any necessary medical attention; and fulfilling other necessary and/or reasonable commitments such as attending a victory ceremony, fulfilling media commitments, competing in further events, completing a training session, and performing a warmdown. The regulation requires the chaperone to keep a competitor exercising any of these rights in view at all times. The regulation requires that a chaperone not refuse a reasonable request by a competitor to exercise his or her rights provided for under this regulation, but, if a chaperone does refuse to accede to a request, the chaperone's refusal to accede does not invalidate the result of any test conducted on a sample provided by that competitor.

Regulation 13 requires the Agency to notify a competitor requested to provide a sample of the sample collection and testing procedures, the competitor's entitlement to have a representative present to oversee the sample collection process, the possible consequences of failing to comply with a request to provide a sample or returning a positive test result, and the competitor's right to make a submission to the Agency if the competitor wishes to try to show that he or she had reasonable cause for failing to comply with a request to provide a sample. The regulation also requires the Agency to notify each competitor who provides a sample of his or her right to be present, or represented, at any subsequent testing of the sample if the initial testing reveals the possibility of a positive test result, the possible consequences of returning a positive test result, and the persons and organisations who would be notified if a positive test result was returned. The regulation provides that notification is taken to have been provided when the chaperone provides the competitor with a copy of the Information Sheet.

Regulation 14 provides for a drug control official to establish and maintain a drug control facility at a place where samples are to be collected. The regulation sets out the components that make up such a facility. The regulation also provides that if the physical constraints of the place at which samples are to be collected prevent each of the components from being located in one area, they may be located in different areas. The regulation requires the Agency to provide each drug control at a drug control facility with sufficient sample collection containers, security transit containers and security transit seals, and with a list of the numbers of each security transit container and security transit container seal issued to the drug control official at that facility.

Regulation 15 provides for a competitor requested to provide a sample to consume drinks to assist in the provision of a urine sample. The regulation also provides that the fact that a competitor consumes a drink is not to be grounds for challenging the result of a test on a sample provided by that competitor.

Regulation 16 provides for the competitor's entitlement to have a representative present to oversee the sample collection process. The regulation also requires that a representative the competitor selects, if any, must be available to oversee the process within a reasonable time.

Regulation 17 sets out the procedures to be followed from the time the chaperone, competitor and the competitor's representative and/or interpreter, if any, enter the drug control facility to the time the competitor indicates he or she is ready to provide a sample. The regulation provides that once the competitor has indicated he or she is ready to provide a sample, the drug control official will ask the competitor together with his or her chaperone and any representative to go into the drug control area. The drug control official will then be required to ask the competitor to select a sample collection container in which the competitor will be required to provide the sample.

Regulation 18 requires a chaperone of the same sex as the competitor to accompany the competitor to the toilet area to view the passing of the sample, and to sign the Drug Testing Form to verify that he or she witnessed the passing of the sample.

Regulation 19 requires a competitor to provide a sample of sufficient volume to enable analysis in accordance with the Regulations. If a urine sample is provided by a competitor, the regulation requires the sample to be of a volume determined by the drug control official. If the volume of urine passed is insufficient. the regulation sets out the procedures for temporarily securing the sample and later combining it with a further sample or samples provided by the competitor to make up a sample of the required volume.

Regulation 20 requires that only the competitor, or a person authorised by the competitor, handle or touch the sample collection container or its contents from the time the competitor selects the sample collection container from amongst those provided by the drug control official to the time the sample in the container is placed in the A and B sample bottles.

Regulation 21 sets out the procedures by which a competitor identifies and dispenses his or her sample into two sample bottles provided by the Agency (called the A and B sample bottles) and secures the bottles. These bottles are sent to an accredited laboratory for testing. A test is conducted on the contents of the A sample bottle first, and if it reveals the possibility of a positive test result, a test will be conducted on the contents of the B sample bottle to confirm whether or not a positive test result has been returned. These tests are known as the "A sample" or "initial" test and the "B sample" or "second" test. The regulation provides that after the competitor has provided a sample he or she bring it to the drug control area. The regulation then requires the competitor to select a set of security transit containers and, with the drug control official, to ensure that security seals are intact and that identification numbers on the security transit container, security seals and A and B sample bottles correspond with the numbers on the lists provided by the Agency. If the security transit container or transit container seal numbers do not match with those on the list provided by the Agency, the security transit container is to be discarded and the process resumed with a new set of security transit containers selected by the competitor. If the number on a sample bottle does not correspond with the number on the security transit container, the security transit container must be set aside and a new one selected. The regulation requires the drug control official to report, in writing, any instance of numbers on any security transit container, transit container seals and bottles not matching to the Agency. The regulation also requires the competitor to dispense the sample from the sample collection container into the A and B sample bottles in amounts directed by the drug control official and secure the bottles, place the bottles in the appropriate security transit containers and seal these containers with the appropriate transit container seals. The competitor's representative, if any, is permitted to oversee this process.

Regulation 22 requires the drug control official to conduct acidity and specific gravity tests on all urine samples. and, if the results of these tests are outside the guidelines set by the Agency, to request the competitor to provide an additional sample. This process continues until such time as the sample provided by a competitor passes the acidity and specific gravity tests conducted by the drug control official.

Regulation 23 requires the drug control official to complete the Drug Testing Form after the competitor has completed the procedure provided for in regulation 21 and tests on the sample to determine its acidity and specific gravity have been successfully conducted. The regulation also requires the competitor to provide sufficient information to enable the drug control official to complete the Drug Testing Form. The competitor may volunteer information on medications, but is not compelled to provide it. The regulation provides that the Drug Testing Form be substantially the same as that in the schedule to the Regulations. The regulation requires the drug control official, the competitor and the competitor's representative, if any, to check that the information contained on the Drug Testing Form is, to the best of their knowledge, correct, and if it is, to sign the Form to indicate it is complete and correct. The drug control official is also required to provide the competitor with a copy of the completed Drug Testing Form.

Regulation 24 sets out the procedures by which all samples and associated documentation are to be secured and transported to an accredited laboratory. The regulation specifies that the drug control official must not send any information to the laboratory which may identify by name the competitor who provided the sample.

Regulation 25 provides for the manner in which samples which cannot be despatched to an accredited laboratory on the day on which they are collected are to be stored. The regulation requires that samples be discarded if they do not reach an accredited laboratory within 14 days from the date of collection.

Regulation 26 requires an accredited laboratory to notify the Agency as soon as possible if a carrier bag or security transit container has been unsealed or has had its seal broken. The regulation provides that an accredited laboratory is only to conduct tests on a sample contained in a security transit container which has been unsealed or has had its seal broken when the laboratory receives it, or on samples contained in a carrier bag which has been unsealed or has had its seal broken when the laboratory receives it, with the express approval of the Agency.

Regulation 27 requires that a sample be tested by an accredited laboratory. The regulation also provides for the testing methods an accredited laboratory may use to test a sample.

Regulation 28 provides for an accredited laboratory to test a sample for the presence or absence of any scheduled drug or doping method.

Regulation 29 provides that an accredited laboratory is to test the contents of the A sample bottle for the presence or absence of any scheduled drug or doping method. The regulation also provides that the laboratory not test the contents of the B sample bottle unless tests on the contents of the A sample bottle reveal the possibility of a positive test result.

Regulation 30 provides that an accredited laboratory notify the Agency, in writing, of the results of tests on the contents of the A sample bottle.

Regulation 31 requires the Agency to notify the competitor who provides a sample of the result of tests conducted on the contents of the A sample bottle as soon as possible after being advised of the result by the accredited laboratory. The regulation also provides for the manner in which notification is to be made.

Regulation 32 sets out the procedures for notifying a competitor of the intention to test the contents of the B sample bottle and the information the Agency must provide to the competitor when making this notification. This notification is only to be provided if the initial testing on the contents of the A sample bottle reveals the possibility of a positive test result. The regulation requires the Agency to notify the competitor that testing on the contents of the A sample bottle revealed the possibility of a positive test result; when and where the unsealing of the B sample bottle and the subsequent testing of its contents is to take place; of the competitor's entitlement to be present, or represented, at any subsequent unsealing and testing of the contents of the B sample bottle; and the consequences of recording a positive test result, including who would be notified of the fact, should tests conducted on the contents of the B sample bottle confirm a positive test result. The regulation also requires that sufficient time be allowed between notification of the possibility of a positive test result to the competitor and the conduct of tests on the contents of the B sample bottle by the laboratory to enable the competitor and/or his or her representative to arrange to be present to witness the unsealing of the B sample bottle and the subsequent testing process.

Regulation 33 requires the accredited laboratory to unseal and test the contents of the B sample bottle to determine if the possibility of a positive test result is confirmed. The regulation also requires that a positive test result is not considered to have been confirmed unless the testing of the sample in each of the A and B sample bottles reveals that the permitted level in relation to a scheduled drug or doping method is exceeded.

Regulation 34 requires the accredited laboratory to notify the Agency of the result of tests conducted on the contents of a B sample bottle. The regulation also specifies the details the accredited laboratory is required to provide to the Agency if the test on the contents of the B sample bottle reveals a positive test result, including the number of the security transit container that contained the sample; the name of the scheduled drug or doping method for which a positive test result has been recorded; and the amount of any scheduled drug in the sample and/or the fact that the permitted level in relation to a prescribed doping method is exceeded. The regulation also permits, but does not require, the laboratory to include in its advice to the Agency any comments it may have in relation to information the competitor may have provided on the Drug Testing Form as to medications taken prior to the collection of the sample.

Regulation 35 requires the Agency to notify a competitor who provides a sample of the result of tests conducted on the contents of the B sample bottle as soon as possible after being advised of the result by the accredited laboratory. The regulation also provides for the manner in which notification is to be made.

Regulation 36 sets out the details the Agency is required to enter on the Register of Defaulting Competitors in respect of a competitor who has failed, without reasonable cause, to comply with a request to provide a sample, including the name of the competitor; advice as to whether the competitor's name was entered on the Register for failing to comply with a request to provide a sample which was made in person, by telephone, or by registered letter; advice as to whether the competitor's name was entered on the Register for refusing to provide a sample after being requested, in person, by a chaperone, or failing to come to a drug testing facility to provide a sample after receiving a request by telephone or registered letter; the competitor's sport; the date on which a sample was requested; and the State or Territory in which the sample was to have taken place.

Regulation 37 requires that, if an accredited laboratory advises that it has confirmed a positive test result after the testing of the contents of the B sample bottle, the Agency check procedures to ensure that the sample collection and testing procedures followed in respect of the competitor's sample were carried out in accordance with the Regulations. If procedures have been correctly followed, the regulation requires the Agency to enter on the Register of Defaulting Competitors the name of the competitor who provided the sample; the competitor's sport; the fact that he or she recorded a positive test result; the date on which the sample was provided; the name or class of scheduled drug or doping method revealed by the testing; and the State or Territory in which the sample was taken.

Regulation 38 provides that the Agency may advise a sporting organisation specified by the competitor or the Australian Sports Commission that the competitor has recorded a negative test result if the competitor consents, in writing, to such a disclosure. The regulation provides that written consent is taken to have been given if the competitor signs a declaration on the Drug Testing Form indicating his or her agreement to the disclosure of a negative test result to a sporting organisation specified by the competitor or the Australian Sports Commission. The regulation also provides for the competitor to sign the declaration of consent at any subsequent time.

Regulation 39 specifies the form and manner in which the Agency is required to notify the competitor; the competitor's sporting organisation(s); and the Australian Sports Commission, if applicable, that a positive test result has been recorded by the competitor or that the competitor has failed, without reasonable cause, to comply with a request to provide a sample. Notification includes notification of the details to be entered on the Register of Defaulting Competitors in relation to the competitor. The regulation also specifies the form and manner in which the Agency is required to notify the competitor; the competitor's sporting organisation(s); and the Australian Sports Commission, if applicable, that an entry on the Register of Defaulting Competitors has been removed as a result of a ruling by the Administrative Appeals Tribunal.

Regulation 40 provides for the remuneration and allowances payable to part-time members and the Chief Executive of the Agency pending a determination by the Remuneration Tribunal.

Regulation 41 specifies the manner in which the Agency may delegate any or all of its powers under the regulations to the Chief Executive of the Agency, a drug control official or an employee of the Agency.

Regulation 42 specifies the manner in which a drug control official may delegate any or all of his or her powers under the regulations to a chaperone.