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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This bill seeks to amend the Australian Sports Anti-Doping Authority Act
2006 to rename the Australian Sports Anti-Doping Authority as 'Sport
Integrity Australia'; provide Sport Integrity Australia with a new
set of
functions; list Sport Integrity Australia as an enforcement body under the
Privacy Act 1988; and make consequential amendments to other Acts
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Portfolio
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Youth and Sport
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Introduced
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House of Representatives on 17 October 2019
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Right
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Privacy
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Status
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Concluded
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2.35 The committee requested a response from the minister in relation to the bill in Report 1 of 2020.[2]
2.36 The bill seeks to rename the Australian Sports Anti-Doping Authority (ASADA), whose focus is on anti-doping, as Sport Integrity Australia (SIA), and provide SIA with a broader set of responsibilities and functions. Item 24 of the bill would establish that the SIA Chief Executive Officer (CEO) is responsible for coordinating a national approach to Australia's response to matters relating to 'sports integrity', including threats to sports integrity.[3] 'Threats' to sports integrity are defined to include manipulation of sporting competitions, the use of drugs or doping methods in sport, the abuse of children and other persons in a sporting environment and the failure to protect members of sporting organisations from bullying, intimidation, discrimination or harassment.[4]
2.37 Furthermore, the bill seeks to amend subsection 6(1) of the Privacy Act to include SIA as an 'enforcement body'.[5] This would have the effect that:
• SIA would not be required to notify of an eligible data breach under Part IIIC of the Privacy Act, where the CEO believes on reasonable grounds that notifying the breach would be likely to prejudice one or more enforcement related activities conducted by, or on behalf of, the enforcement body;[6]
• SIA would not be required to obtain an individuals' consent to collect sensitive information, where the collection of that information is reasonably necessary for, or directly related to, one or more of SIA's functions or activities;[7]
• another Australian Privacy Principle (APP) entity would be able to disclose information to SIA,[8] including a person's government identifier,[9] where that entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more of SIA’s enforcement related activities;
• SIA would not be required to obtain a person's consent to disclose their personal information to an overseas recipient, where that recipient is a body that performs functions, or exercises powers, that are similar to those performed or exercised by an enforcement body; [10] and
• SIA would not be required to give a person access to their personal information where to do so would be likely to prejudice one or more enforcement related activities conducted by SIA.[11]
2.38 The proposed inclusion of SIA as an enforcement body for the purposes of the Privacy Act, which would enable SIA to use and disclose personal information, engages the right to privacy.[12] 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.[13] 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.[14]
2.39 The initial analysis stated that more information was required in order to assess the compatibility of this measure with the right to privacy, in particular:
• the legitimate objective that the measure seeks to address (including any reasoning or evidence that establishes that the objective addresses a substantial and pressing concern);
• the type of information it is anticipated that SIA would obtain and/or share in addressing threats to 'sports integrity' (including what investigations are likely to be conducted by SIA in relation to the abuse of children and any bullying, intimidation, discrimination or harassment in a sporting environment);
• whether there are any other, less rights restrictive, methods to achieve the stated objective;
• whether an eligible data breach would be required to be notified once any prejudice to an enforcement related activity has ceased; and
• what safeguards would protect the privacy of personal information which SIA could share (including with overseas entities).
2.40 The full initial legal analysis is set out at Report 1 of 2020.
2.41 The committee noted the legal advice and in order to assess whether these measures constitute a proportionate limitation on the right to privacy, the committee sought the minister's advice as to the matters set out at paragraph [2.39].
2.42 The minister advised:
Legitimate objective
The Wood Review recommended the proposed National Sports Integrity Commission (Sport Integrity Australia) be made an enforcement body for the purposes of the Privacy Act 1988 (Privacy Act) (at p 172). This recommendation was in the following terms:
That the...[NSIC]...be authorised to deal with information captured by the Privacy Act, and have the ability to collect and use 'sensitive information' about a person without consent. The NSIC be designated as a law enforcement agency to have the confidence of international and Australian law enforcement agencies as both a receiver and provider of personal information, and material alleging criminality.
In recommending the establishment of a national sports integrity body, the Wood Review described it as being: (at 175)
... the central point for overseeing the full range of integrity issues and challenges including collecting, assessing and disseminating relevant intelligence to policing and law enforcement agencies and NSOs, and other relevant organisations as may be appropriate. It would have extra functions in supporting sporting bodies in the development of their own integrity requirements and capabilities, including education and training. It would also have a strategic risk assessment role in relation to risk levels and threats in individual sports and of their capacity to manage those risks or threats, in line with the...approach mentioned earlier in this report.
Consistent with the recommendation and observations of the Wood Review, Sport Integrity Australia's [sic] cannot achieve its functions in a vacuum. It is vital there be seamless communications between relevant stakeholders, including between Sport Integrity Australia, regulators and existing law enforcement agencies.
Serious criminal activity is fundamental to at least some of Sport Integrity Australia's responsibilities, for example, match-fixing and organised crime elements of sports doping, among other things. That said, other elements of threats to sport integrity do not necessarily involve criminal behaviour and fall outside of the functions and responsibilities of conventional law enforcement agencies. In one sense, a key role of Sport Integrity Australia will be to bridge that gap.
By exchanging information seamlessly with a wide range of sources, including sports organisations and other entities, Sport Integrity Australia will be able to identify patterns and matters relevant to detecting threats to sports integrity.
There is a rational connection between these legitimate objectives and designating Sport Integrity Australia to be an enforcement body for the purposes of the Privacy Act 1988. Most relevantly in this context, the effects of making Sport Integrity Australia an enforcement body include:
• the capacity to be given information that is reasonably believed to be necessary for one or more of Sport Integrity Australia's enforcement related activities;
• permitting Sport Integrity Australia to collect sensitive information about a person who may be subject to its enforcement related activities. In many cases, it would defeat the purpose of Sport Integrity Australia's functions if suspects had to be informed they had come to Sport Integrity Australia's notice; and
• permitting Sport Integrity Australia to exchange information effectively with overseas enforcement bodies, consistent with exchanges with existing Australian enforcement bodies.
These effects would only apply in relation to Sport Integrity Australia's enforcement related activities. They would have no application to other activities conducted by Sport Integrity Australia. On that basis, the effect of this measure is limited and proportionate to the overall objective.
Sport Integrity Australia's enforcement related activities
It is anticipated Sport Integrity Australia's enforcement related activities will focus on detection and intelligence gathering relevant to threats to sports integrity. As explained, in some cases those threats could involve possible criminal conduct. It could also involve misconduct of a serious nature within the terms of the definition of 'enforcement related activity' in s 6(1) of the Privacy Act 1988.
Inevitably, this will involve the exchange of personal information, and in some cases, sensitive information. It remains the case information can only be provided by an APP entity to Sport Integrity Australia where it is reasonably necessary to do so for the purpose of one of Sport Integrity Australia's enforcement related activities. It is not an unconstrained
authority to share information with Sport Integrity Australia. It is a proportionate means of achieving the legitimate objective discussed above for the Privacy Act 1988 to enable provision to Sport Integrity Australia of this limited class of information.
It is not anticipated those activities would ordinarily include Sport Integrity Australia's functions in relation to matters involving, for example, less serious behavioural issues.
Type of information Sport Integrity Australia is anticipated to receive and/ or share
Sport Integrity Australia's key role in this respect is detecting activities requiring an enforcement response. To do this, it requires timely access to information from all areas of the sports environment relevant to integrity threats, to enable it to respond effectively, before a threat is realised. There can be a fine line between indicators apparent in sporting code of conduct matters and those developing into grave threats to the integrity of Australian sport, potentially doing irreparable damage to the reputation of Australian sport. Where criminal activity is disclosed, ordinarily a prosecution response by a law enforcement agency will take its course, but in the event relevant conduct is not proved to the criminal standard, it may still be necessary for Sport Integrity Australia to facilitate action involving the sport's controlling body or by others.
For example, in its enforcement activity of detecting criminal activity or serious misconduct, potentially crucial information could come from one or more sources indicating the integrity of a sporting event will be, or has been, compromised. It could start with something as simple as detection of suspicious betting patterns, followed by separate reports of suspicious conduct in the sporting arena and intelligence from a separate source about organised crime figures suggesting they are corrupting sporting events, or involved in the supply of prohibited substances to elite athletes. Enabling Sport Integrity Australia to deal with differing sources of information such as these will enable a more effective response to sport integrity threats.
Links between organised crime and drugs in sport are well reported and, in some cases, high profile investigations have ultimately been resolved by disciplinary action within the sporting codes, because there was insufficient evidence for criminal prosecutions. For this reason, it is important Sport Integrity Australia has the capacity to traverse the discrete areas of the sports environment, for example sporting bodies, wagering bodies, the pharmaceutical industry, regulators and law enforcement.
Consistent with Sport Integrity Australia's overall purpose, it will have the ability to disclose information to law enforcement and/or sports and/or regulators from time to time. Where the information is protected by separate secrecy provisions, then any disclosure by Sport Integrity Australia would need to be consistent with those laws. Similarly, if another body gives Sport Integrity Australia information on condition it not be further disclosed or used for other purposes, then Sport Integrity Australia would be obliged to respect those conditions in the usual way.
Other, less restrictive methods to achieve stated objective
As implicitly recognised by the recommendations of Wood Review, this is a necessary step to achieve the stated objective.
As discussed above, the designation of Sport Integrity Australia as an enforcement body will be relevant only to the extent Sport Integrity Australia engages in its enforcement related activities.
Eligible data breaches
This exception applies only to the extent notification to a subject would prejudice Sport Integrity Australia's enforcement related activities. It is not a general exemption from the data breach notification obligations.
Noting this notification obligation could affect investigations being conducted by agencies other than Sport Integrity Australia, it is appropriate and important this provision apply. A decision about further disclosure to an affected individual would be a matter for the Sport Integrity Australia CEO, taking into account the circumstances existing at the time.
The report also suggests Sport Integrity Australia, as an enforcement body, would not be required to give a person access to their personal information where to do so would be likely to prejudice one or more enforcement related activities conducted by Sport Integrity Australia. It suggests APP 12.3(i) is the source of that exception. I am advised APP 12.3 would have no effect on Sport Integrity Australia's obligations in this respect, because, as an agency, the applicable obligation falls under APP 12.2, which does not distinguish enforcement bodies from other agencies.
If access to personal information held by an organisation would prejudice enforcement activities conducted by or on behalf of Sport Integrity Australia, then the exception in APP 12.3(i) would be engaged. For the reasons outlined above, this is appropriate and necessary, so as not to undermine Sport Integrity Australia achieving its lawful objectives.
Safeguards to protect privacy of in formation shared with overseas entities
The Wood Review noted, by way of example of a match-fixing case in the Victorian Football Premier League, the transnational character of corruption. It was evidenced in this case by the corruption of players in a Victorian club involving athletes imported from the United Kingdom, Australian support staff and an international criminal syndicate based in Singapore and Hungary.
In a sporting sense, Australia is not an island. Most major sports have an international element and elite athletes train and compete overseas. Further, betting on Australian domestic sports is widespread internationally.
If it is accepted Sport Integrity Australia has a role in address threats to sports integrity, it is important Sport Integrity Australia is able to deal with its overseas counterparts on an equal footing in this vital area of exchanging information relevant to sport integrity threats with overseas bodies performing enforcement functions.
2.43 In relation to the legitimate objective of the measure, the minister has advised that designating SIA an 'enforcement body' for the purposes of the Privacy Act will enable the agency to address both the elements of threats to sports integrity which constitute serious and/or organised criminal activity, and such threats which do not involve criminal conduct and so fall outside the responsibilities of law enforcement agencies. The minister has explained that, in order to effectively bridge this gap SIA must be able to communicate with relevant stakeholders, including regulators and law enforcement agencies; and has stated that this may enable SIA to identify patterns and other matters relevant to detecting threats to sports integrity. Addressing both criminal and non-criminal conduct which threatens sports integrity may be capable of constituting a legitimate objective for the purposes of international human rights law. It also appears that designating SIA as an enforcement body for the purposes of the Privacy Act is rationally connected to that objective.
2.44 In relation to the proportionality of the measure and the type of information it is anticipated that SIA would obtain and/or share in addressing threats to 'sports integrity', the minister has advised that information could come from one or more sources indicating that the integrity of a sporting event will be, or has been compromised (for example, detection of suspicious betting patterns, or intelligence about organised crime figures corrupting sporting events or supplying prohibited substances to athletes). However, it remains unclear what types of information, including private information, SIA may obtain and/or share as part of its role in investigating other threats to sports integrity, including information related to the abuse of children and other persons in a sporting environment and the failure to protect members of sporting organisations from bullying, intimidation, discrimination or harassment. The minister has advised that SIA's enforcement related activities will focus on detection and intelligence gathering relevant to threats to sports integrity, but that it is not 'anticipated that those activities would ordinarily include Sport Integrity Australia's functions in relation to matters involving, for example, less serious behavioural issues'. However, it would appear that there is nothing in the legislation to prevent SIA from examining less serious behavioural issues, and if doing so for the purposes of enforcement, such activities would appear to be exempt from certain aspects of the Privacy Act 1988.
2.45 As to safeguards which would protect the privacy of personal information which SIA could share, the minister has noted that where such information is protected by separate secrecy provisions, any such disclosure would have to be consistent with those laws. The minister has also advised that if a separate body had provided SIA with information on the condition that it not be disclosed further, SIA would be obliged to comply with such a condition. The minister has advised that SIA's designation as an enforcement body would exempt it from the obligation to notify of an eligible data breach, but only to the extent that such a notification would prejudice SIA's enforcement related activities.[16] The minister has stated that this is appropriate because such notifications could affect investigations being undertaken by other agencies. As to whether an eligible data breach would be required to be notified once any prejudice to law enforcement has ceased, the minister has advised that any decisions about further disclosure would be a matter for the CEO of SIA 'taking into account the circumstances existing at the time'. However, it is noted that there does not appear to be anything in law that would require the CEO to consider disclosing the data breach to affected individuals once the prejudice to law enforcement activities had passed.
2.46 In terms of protecting information which SIA may share with overseas entities, the minister has stated that SIA has to be able to deal with overseas counterparts on an equal footing in terms of exchanging information. However, the minister's response did not address the question as to what safeguards, if any, would protect the privacy of personal information which SIA may share with overseas entities.
2.47 As such, it remains unclear what type of personal information SIA may obtain and/or share in investigating threats to 'sports integrity'; whether any safeguards would protect the privacy of personal information which SIA may share with overseas entities; and whether an eligible data breach would be required to be notified once any prejudice to law enforcement related activity has ceased. Consequently, it is not clear that these measures would constitute a proportionate limitation on the right to privacy.
2.48 The committee thanks the minister for this response. The committee notes that the bill seeks to expand the functions currently being exercised by the Australian Sports Anti-Doping Authority. In exercising these broader functions, the newly named Sport Integrity Australia would also be given the status of an 'enforcement body' for the purposes of the Privacy Act 1988, thereby enlivening a number of powers in relation to the gathering, sharing and control over access to personal information.
2.49 The committee notes the legal advice regarding the impact of these measures on the right to privacy.
2.50 However, as this bill has now passed both houses of Parliament the committee makes no further comment in relation to this matter.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019, Report 4 of 2020; [2020] AUPJCHR 51.
[2] Parliamentary Joint Committee on Human Rights, Report 1 of 2020 (5 February 2020),
pp. 12-16.
[3] Schedule 1, item 11 of the bill. 'Sports integrity' being defined to mean the manifestation of the ethics and values that promote community confidence in sport.
[4] Schedule 1, item 12.
[5] Schedule 2, item 23.
[6] Privacy Act 1988, section 26WN. 'Enforcement related activity' is defined in subsection 5(1) of the Privacy Act 1988 to mean: the prevention, detection, investigation, prosecution or punishment of criminal offences, or breaches of a law imposing a penalty or sanction; the conduct of surveillance activities, intelligence gathering activities or monitoring activities; the conduct of protective or custodial activities; the enforcement of laws relating to the confiscation of the proceeds of crime; the protection of public revenue; the prevention, detection, investigation or remedying of misconduct of a serious nature, or other conduct prescribed by the regulations; or the preparation for, or conduct of, proceedings before any court or tribunal, or the implementation of court/tribunal orders.
[7] Australian Privacy Principle (APP) 3.4(d)(ii).
[8] APP 6.2(e).
[9] APP 9.2(e).
[10] APP 8.2(f).
[11] APP 12.3(i).
[12] International Covenant on Civil and Political Rights (ICCPR), article 17.
[13] 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].
[14] 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.
[15] The minister's response to the committee's inquiries was received on 2 March 2020. 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 .
[16] Privacy Act, section 26WN.
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