Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

AUSTRALIAN SPORTS DRUG AGENCY REGULATIONS (AMENDMENT) 1993 NO. 210

STATUTORY RULES 1993 No. 210

ISSUED BY THE AUTHORITY OF THE MINISTER FOR THE ENVIRONMENT, SPORT AND TERRITORIES

AUSTRALIAN SPORTS DRUG AGENCY ACT 1990

AUSTRALIAN SPORTS DRUG AGENCY REGULATIONS (AMENDMENT)

The Australian Sports Drug Agency Regulations (Amendment) amends the Regulations in force under the Australian Sports Drug Agency Act 1990 to enable the Agency to carry out its responsibilities more effectively and efficiently.

The details of the amendments are:

Regulation 3: the amendment is to correct a small typographical error.

New regulation 3A: In the event of a positive test the Agency is required to notify a competitor by registered mail. The new regulation is intended to clarify the mailing procedures and enable the Agency to establish, through the postal service, the date on which the notification form was received, or could reasonably be expected to have been received, by the competitor. This has particular significance where a slat time is allowed for the competitor to make a response following advice of a positive test result, or failure to comply with a request to provide a sample, or where a competitor has received a request through the post to undertake a drug test.

Regulation 8: Notification of selected competitor

The Agency staff have experienced a number of difficulties in notifying competitors who have been selected to undertake a drug test under the existing regulations. The amendments are intended to simplify the procedures and clarify the requirements of Agency officials.

New subregulation 8(2A) is intended to simplify procedures for providing notice to a competitor that he or she has been selected to undertake a test. This subsection also covers the situation where a competitor refused to accept written notice by allowing the Agency official to fulfil notification procedures by stating the nature of the notice and placing it down in the presence of the competitor.

Subregulation 8(7) currently requires the Agency, a drug control official or chaperone not to disclose the identity of a competitor selected to provide a sample until the competitor is asked to provide a sample. This provision was included to prevent a competitor from obtaining any prior knowledge of the Agency's intention to request a sample and, as a result of the forewarning, taking action to avoid providing a sample (eg withdrawing from an event, going into hiding, etc).

From a practical point of view this has presented a number of difficulties for Agency officials in establishing contact with, and explaining the importance of the testing process to, the competitors. This is particularly relevant with younger athletes who may need a parent, guardian, coach, etc to assist in explaining what the test is all about and the need to provide a sample. Prior advice to a parent, etc in this situation can also make the request, and subsequent sampling procedures, much less threatening.

Experience has also indicated that there is a similar need to allow prior notification of a third person who may provide assistance and support where a competitor is intellectually disabled, deaf, is unable to speak English, or for some other reason is unable to understand a request to give a sample.

Subregulation 8(7) has also prevented Agency officials from being able to identify themselves to a third person or allow an indication of the reason for wishing to contact the competitor. This has proved to be particularly unsatisfactory, for example, where a male drug control official is required to notify a young female athlete by telephone of the need to undertake a test but is unable to identify himself as an Agency official to a parent or guardian who may answer the telephone, or the reason for wishing to talk to the athlete.

This subregulation has also created problems for Agency officials in the identification of particular competitors, selected for testing but not known to them by sight, who may be training with a number of other athletes. It is considered necessary for the Agency officials to be able to identify themselves and to seek guidance from any person, such as an official at a training session, on the identification and whereabouts of a particular competitor or competitors.

In order to address these problem areas it is proposed that current subregulation 8(7) be deleted and replaced with new subregulations 8(7) to 8(13). These amendments allow Agency officials to notify a third person (parent, guardian, coach, etc) to assist in the notification process. The amendments have been cleared by the Privacy Commissioner with regard to privacy aspects of the proposed changes.

Regulation 10: Confirmation of telephone request

This amendment is intended to simplify the notification procedures following a telephone request to a competitor to attend a drug test where there is insufficient time to send written confirmation through the post. The amendment allows the written notification to be provided to the competitors when they are notified of the request to provide a sample for testing.

Regulation 13: Procedures to be adopted by chaperone on contacting competitor

The proposal to delete subregulation 11(1)(k) and replace it with subregulation 11(1A) is intended to allow for the different procedures associated with a telephone request for a sample and a request which has been made in person.

Regulation 13: What must the Agency tell the competitor?

The proposed amendment is to take account of amendments made to the Act in 1992 which allow the Agency to notify agencies in overseas countries of positive test results where these agencies are party to anti-doping agreements with Australia. The amendment requires the competitor to be advised of all persons and agencies notified of entries on the Register of Notifiable Events.

Regulation 19: Sample of urine to be required volume

Regulation 19 is not sufficiently comprehensive in its coverage of the technical aspects of collection and security of the sample where the sample provided by the competitor is insufficient to be analysed. The proposed new regulation 19 adequately addresses all aspects including procedures for the temporary sealing of the initial sample, the security of this sample, and procedures for a subsequent sample to be added to the initial sample.

Regulation 20: Control of the sample collection container

Proposed amendments to this regulation are designed to address the situation where a competitor may deliberately seek to interfere with the sample collection process by tampering with the sample. Where a sample may have been tampered with, the Agency official may request a further sample. Where the competitor does not agree to provide the additional sample the competitor is taken to have failed to comply with a request to provide a sample.

Regulation 21A: Interference with identification and attestation procedure

Proposed addition of this regulation is designed to address the situation where a competitor or a third party may deliberately seek to interfere with the sample collection process. Where the identification and attestation procedures are interfered with, the Agency official may request a further sample. Where the competitor does not agree to provide the further sample, the competitor is taken to have failed to comply with a request to provide a sample.

Regulation 22: Acidity and specific gravity test

Acidity and specific gravity tests are conducted on samples to determine whether they are suitable for analysis. Where a sample fails the acidity and specific gravity test a competitor may be requested to provide an additional sample. The proposed amendment provides that where the competitor does not agree to provide an additional sample, the competitor is taken to have failed to comply with a request to provide a sample.

Regulation 26: Effect of broken seals

The proposed amendment to this regulation is designed to address the situation where a competitor may deliberately try to tamper with a sample by breaking open a sealed security transit container containing a sample. In this situation the competitor is taken to have failed to comply with a request to provide a sample.

Regulation 31: Notification of results of initial tests - to competitor

The amendments proposed are designed to clarify procedures for the notification of a competitor of a positive test result on the A sample, and to make the regulation consistent with the requirements of the Act with regard to the requirement that the competitor be provided with written advice of a positive test result on the A sample.

Regulation 34: Notification of final test results - to Agency

This amendment is designed to cover situations where a substance (such as caffeine or epi-testosterone) may be permitted in low amounts but where a level has been prescribed which is not to be exceeded.

Regulation 35: Notification of results of second tests

This amendment simplifies procedures for notification of the competitor of a positive test result on the B sample, and maintains consistency with earlier amendments on notification procedures.

Regulation 38: Who may be notified of a negative test result?

An earlier amendment to the Act enabled the Agency to notify the competitor and relevant sporting organisations of negative test results. Accordingly, as this regulation specifies procedures to be followed in obtaining the competitor's approval to the notification of negative test results, it is no longer relevant and is to be deleted.

Regulation 39: Notices under Section 17 of the Act

The proposed amendment is designed to clarify the wording of the regulation and to take account of an amendment to Section 17(1) of the Act relating to the notification of agencies in overseas countries who may have entered into anti-doping agreements with Australia.

Regulation 39A: Notice to competitor following decision by Administrative Appeals Tribunal - positive test result

An amendment to Section 16 of the Act provides for a competitor to make application the Administrative Appeals Tribunal (AAT) to review a decision of the Agency. A new regulation 39A is proposed to address procedures following a positive test where there is an appeal by a competitor to the AAT. The amendment specifies notification procedures where the appeal may be successful to ensure that the rights of the athlete are protected.

Regulation 40: Remuneration and allowances

The remuneration and allowances of Agency members are now covered by the Remuneration Tribunal and this regulation is no longer required. It is proposed that regulation 40 will be deleted.

Regulation 43: Anti-doping arrangements

It is proposed to include this as a new regulation to cover amendments previously made to the Act in 1992 relating to international anti-doping arrangements entered into by Australia.

Schedules to Regulations

Schedules 1, 2, 3,4, and 5 have been amended and a new Schedule 6 created to more closely reflect the requirements of Agency officials and competitors, to ensure that they comply more closely with the requirements of the Act as amended, and to take account of the proposed changes to the Regulations. Additional forms have also been prescribed to address these requirements.