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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This instrument makes amendments consequent on the enactment of the
Australian Sports Anti-Doping Authority Amendment (Enhancing
Australia’s Anti-Doping Capability) Act 2020 (2020 Act)
including:
• removing references to the Anti-Doping Rule Violation Panel (which
was abolished by the 2020 Act);
• reflecting changes made by the 2020 Act which provide that the
privilege against self-incrimination does not apply;
• setting out the process to be followed regarding assertions about
possible anti-doping rule violations; and
• transitional arrangements regarding the Anti-Doping Rule Violation
Panel.
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Portfolio
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Youth and Sport
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Authorising legislation
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Last day to disallow
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15 sitting days after tabling (tabled in the Senate and the House of
Representatives on 24 August 2020). Notice of motion to disallow
must
be given in the House of Representative by 27 October 2020 and in the Senate by
1 December 2020[2]
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Rights
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Privacy
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Status
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Concluded examination
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2.247 The committee requested a response from the minister in relation to the instrument in Report 11 of 2020.[3]
2.248 The Sport Integrity Australia Act 2020 provides that the National Anti-Doping (NAD) Scheme must authorise the Chief Executive Officer (CEO) of Sport Integrity Australia to publish information relating to assertions of possible violations of the anti-doping rules, if:
• the CEO considers the publication to be in the public interest; the publication is required or permitted by the World Anti-Doping Code; or the athlete or support person to whom the information relates has consented to the publication; and
• the other conditions specified in the NAD Scheme are satisfied.[4]
2.249 The Sport Integrity Australia Regulations 2020 sets out the requirements of the NAD Scheme. This instrument amends those regulations to provide that the CEO may only publish this information if, one or more of the following applies:
(a) a decision has been handed down by a sporting tribunal in relation to the assertion to which the information relates;
(b) the athlete or support person has waived their right to a hearing;
(c) the athlete or support person has refused to recognise the jurisdiction of a sporting tribunal to conduct a hearing process in relation to the assertion to which the information relates;
(d) no sporting tribunal has jurisdiction to conduct a hearing process in relation to the assertion to which the information relates.[5]
2.250 This instrument remakes what was in the Sport Integrity Regulations 2020, but in doing so removes reference to where the athlete or support person had applied to have the decision reviewed by the Administrative Appeals Tribunal (AAT), as review by the AAT was removed by the changes made to the primary legislation.[6]
2.251 As the instrument provides that the CEO may publish personal information about an athlete or support person, this measure engages and limits the right to privacy. The right to privacy encompasses respect for informational privacy, including the right to respect for private information and private life, particularly in relation to the storing, use, and sharing of personal information.[7] The right may be subject to permissible limitations which are prescribed by law and are not arbitrary. In order for a limitation not to be arbitrary, it must pursue a legitimate objective, be rationally connected to that objective, and be a proportionate means of achieving that objective.[8]
2.252 In order to assess the compatibility of this measure with the right to privacy, further information is required as to:
(a) what is the objective behind enabling the Commissioner to publish assertions of possible violations of anti-doping rules, and whether this is aimed at achieving a legitimate objective for the purposes of human rights law;
(b) how is this measure rationally connected to (that is, effective to achieve) that objective;
(c) if an athlete or support person does not recognise the jurisdiction of a sporting tribunal, or if there is no sporting tribunal with jurisdiction to determine the assertion, how would that athlete or support person challenge the assertion; and
(d) whether the measure is a proportionate limitation on the right to privacy. In particular, is there any less rights restrictive ways to achieve the stated objective and are there any safeguards in place to protect the right to privacy.
2.253 The committee noted that this measure engages and may limit the right to privacy. The committee noted that this right may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate. In order to form a concluded view of the human rights implications of this bill, the committee sought the minister's advice as to the matters set out at paragraph [2.252].
2.254 The full initial analysis is set out in Report 11 of 2020.
2.255 The minister advised:
Objective and rational connection of the measure
The objective of publication is to ensure the integrity of sporting competitions by enabling the global sporting community, and in particular sporting organisations, to accurately ascertain individuals who are ineligible to compete or perform any other official function (such as coach, or work in an administrative capacity) within sport.
The measure ensures Australia meets publication requirements under 14.3.1 of the Code, with the additional publication requirements to accommodate scenarios where athletes or support persons fail to recognise the jurisdiction of the sporting tribunal, or no sporting tribunal has jurisdiction.
Sanctioned athletes who continue to compete in sport despite their ineligibility (generally because organisers may not be aware they are sanctioned) can prevent legitimate competitors from winning awards, accolades or prize money, creates an uneven playing field, and encroaches on the rights of clean athletes to compete in sport free from doping. In most cases, athletes have little recourse to retrieve lost earnings or accolades when such rewards are improperly awarded to sanctioned athletes who should not have competed. In addition, if athlete support persons who have committed an anti-doping rule violation are not publicised, they may continue to improperly influence athletes and others within the sporting community.
Publication of an assertion where the person does not recognise the jurisdiction, or there is no jurisdiction, is primarily a matter of public safety. For example, there may be a situation where a person meets the definition of 'support person' under the SIA Act, but has not signed a membership agreement with a sporting organisation to fall within a sporting tribunal's jurisdiction. If a criminal court were to convict that support person of trafficking an illegal substance, for example steroids, the CEO of Sport Integrity Australia should have the ability to alert sporting organisations that this particular support person has an assertion of an anti-doping rule violation for trafficking.
Likewise it is imperative to publish an assertion of an anti-doping rule violation where a person who has contractually agreed to anti-doping· rules, including arbitration through appropriate hearing bodies, tries to avoid sanction or publication by refusing to engage in an arbitration hearing process. In both examples, the ability to publish the assertion is directly linked and proportional to protect the safety of other participants and the integrity of sporting events in Australia and potentially internationally.
The clauses currently included within the Principal Regulations allow the CEO of Sport Integrity Australia to meet the objective to protect sport and its participants through the publication of timely, clear and accurate information which is published and easy for relevant members of the sporting community to access.
How can an athlete or support person challenge an assertion?
In either situation identified by the Committee (non-recognition of the jurisdiction of a sporting tribunal, or no sporting tribunal with jurisdiction), an individual against whom a violation is asserted may challenge the assertion through judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). In addition to judicial review, a person may make a complaint to the Commonwealth Ombudsman.
In the case where an athlete or support person does not recognise the jurisdiction of a sporting tribunal it is important to understand that international anti-doping arrangements are structured to ensure athletes and support personnel agree to the jurisdiction of the relevant tribunal when they enter into a contractual arrangement with the sport (usually a membership agreement) and agree to abide by the anti-doping rules of the sport. The ability for the CEO of Sport Integrity Australia to publicly disclose details of the assertions if an athlete or athlete support person simply refuses to cooperate with the established process they have contractually agreed to is required to ensure Australia remains compliant with its obligations to the Code.
Whether the measure is a proportionate response
The measure is a proportionate response when seeking to ensure other members of the sporting community are not adversely affected by the actions of a person who is asserted to have committed an anti-doping rule violation, but has avoided the proper hearing process. To ensure the proportionality of the measure, the long-standing practice of Sport Integrity Australia, and the former Australian Sports Anti-Doping Authority, is to remove the publication once the athlete or athlete support person's period of ineligibility has, or would have, expired. This ensures the publication does not last beyond the intended objective.
2.256 The minister has advised that the objective of publishing information relating to assertions of possible violations of the anti-doping rules is to ensure the integrity of sporting competitions by enabling sporting organisations to accurately ascertain individuals who are ineligible to compete or perform any other official function within sport. Sanctioned athletes who continue to compete in sport despite their ineligibility, because no one is aware of the sanction, can prevent legitimate competitors from winning, creates an uneven playing field, and encroaches on the rights of clean athletes to compete in sport free from doping. In addition, the minister has advised that athlete support persons who have committed an anti-doping rule violation may continue to improperly influence athletes and others within the sporting community. Protecting the rights of others to be able to fairly compete in their chosen sport appears to be a legitimate objective for the purposes of international human rights law, and publishing relevant information would likely be rationally connected to that objective.
2.257 In terms of proportionality, the minister advised that publication of an assertion where the person does not recognise the jurisdiction, or there is no jurisdiction, of a sporting tribunal is primarily a matter of public safety. The minister has noted that a person may not recognise the jurisdiction of a sporting body because they refuse to engage in an arbitration hearing process in order to avoid sanction, or they may not formally fall within a sporting tribunal's jurisdiction because they have failed to sign a membership agreement. Yet in both instances matters that are relevant to assertions of an anti-doping rule violation need to be made public in order to protect the safety of other participants and the integrity of sporting events. The minister also noted that in entering into a contractual arrangement with a sport, individuals have agreed to abide by the anti-doping rules of the sport.
2.258 The minister has also advised that an individual against whom a violation is asserted may challenge the assertion through judicial review under the Administrative Decisions (Judicial Review) Act 1977, and may make a complaint to the Commonwealth Ombudsman. Finally, the minister has advised that the
long-standing practice of Sport Integrity Australia, and the former Australian Sports Anti-Doping Authority, is to remove the publication once the athlete or athlete support person's period of ineligibility has, or would have, expired to ensure the publication does not last beyond the intended objective.
2.259 Noting the legitimate objective of protecting the rights of others to be able to fairly compete in their chosen sport; the necessity for publishing assertions of
anti-doping violations where the person does not recognise the jurisdiction, or there is no jurisdiction, of a sporting tribunal; the availability of a complaints mechanism; and the time limit on when the information remains publicly available, this measure would appear to constitute a permissible limitation on the right to privacy.
2.260 The committee thanks the minister for this response and notes that this instrument provides for the Chief Executive Officer of Sport Integrity Australia to publish information relating to assertions of anti-doping rule violations that have been made against an athlete or support person, including where the jurisdiction of a sporting tribunal is not recognised or no tribunal has jurisdiction.
2.261 The committee notes the minister's detailed advice that the objective of publishing such information is to ensure the integrity of sporting competitions, and considers that protecting the rights of others to be able to fairly compete in their chosen sport is a legitimate objective, and publishing relevant information is rationally connected to that objective. The committee also notes the minister's advice as to the need to publish assertions of anti-doping violations where the person does not recognise the jurisdiction, or there is no jurisdiction, of a sporting tribunal. Noting all of these matters, and the availability of a complaints mechanism and the time limit on when the information remains publicly available, the committee considers the measure permissibly limits the right to privacy.
2.262 The committee recommends that consideration be given to updating the statement of compatibility to include this additional useful information which has been provided by the minister.
2.263 The committee makes no further comment, and has concluded its consideration of this legislative instrument.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Sport Integrity Australia Amendment (Enhancing Australia’s Anti-Doping Capability) Regulations 2020 [F2020L00953], Report 13 of 2020; [2020] AUPJCHR 162.
[3] Parliamentary Joint Committee on Human Rights, Report 11 of 2020 (24 September 2020), pp. 74-77.
[4] Sport Integrity Australia Act 2020, paragraph 13(m).
[5] Item 33 of the instrument.
[6] Australian Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping Capability) Act 2020.
[7] See, UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [10]; and General Comment No. 34 (Freedom of opinion and expression) (2011) [18].
[8] See, for example, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005); Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.
[9] The minister's response to the committee's inquiries was received on 6 October 2020. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
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