Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 171 (5 December 2019)

• Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019
• Privacy 7

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Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019

Purpose	This bill seeks to amend the Australian Sports Anti-Doping Authority Act 2006 to: • provide information-sharing between Australian Sports Anti-Doping Authority (ASADA) and National Sporting Organisations; • amend ASADA's disclosure notice regime; and • extend statutory protection against civil actions to cover National Sporting Organisations in certain circumstances
Portfolio/Sponsor	Youth and Sport
Introduced	House of Representatives on 17 October 2019
Bill status	Before the House of Representatives

Privacy ^[7]

2.13 In Scrutiny Digest 8 of 2019 the committee requested the minister's advice regarding the lowering of the threshold for the giving of disclosure notices and the impact this may have on the right to privacy. In particular, the committee requested further detail about:

• why lowering the current 'reasonable belief' standard is necessary given that a 'reasonable belief' may be formed on the basis of intelligence gathered while investigating a potential anti-doping rule violation; and

• any safeguards that will be in place to guard against the unauthorised use or disclosure of personal information obtained under a disclosure notice.^[8]

Minister's response^[9]

2.14 The minister advised:

Disclosure notices
Article 17 of the International Covenant on Civil and Political Rights prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence and protects a person's honour and reputation from unlawful attacks. This right may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they must seek to achieve a legitimate objective and be reasonable, necessary and proportionate to this purpose.
The Australian Government reiterates these amendments are reasonable, necessary and proportionate to the legitimate aim of catching doping cheats and the persons who facilitate doping, particularly given the safeguards existing in the ASADA Act for the protection of information. Doping is potentially injurious to a person's health, may distort the outcome of sporting contests and, over time, undermines the overall integrity of sport. Australian governments make significant investments in sport and this investment is diminished when the integrity of sport is compromised in this way. These measures are necessary as the detection of doping is becoming increasingly reliant on effective non-analytical investigations.
It is true that a 'belief' can be formed based on intelligence. But it is vital that integrity authorities can respond where there is information generating a reasonable suspicion relevant information will be realised. For example, ASADA may have financial evidence of multiple transactions between a support person and a website known to sell prohibited substances. In the absence of evidence of the substance purchased or the details of the transaction, it would be difficult to form a reasonable belief. However, a reasonable suspicion could be formed to allow for further investigation.
Similarly, information obtained as a result of a tip-off may only raise a suspicion a possible breach of a rule has occurred. If a reasonable belief is required then this information may not be able to be pursued. This is especially the case where an athlete support person is suspected of committing a possible breach of the rules as there are no further tools, such as initiating a drug· test, available to obtain evidence of the possible breach. The issuing of a Disclosure Notice based on 'reasonable suspicion' would address this gap and allow ASADA to better direct its investigative resources at facilitators and sophisticated doping programs.
This approach is consistent with recent calls from Thomas Bach, President of the International Olympic Committee, 'for the urgent need to focus much more on the Athlete's entourage' ... 'using the full support of government authorities ... who have the necessary authority and tools to take action'.
While the difference between the thresholds of suspicion and belief need not be enormous, the fact remains an inability to act on a suspicion may mean the suspicion is never dispelled. This is not in the interests of sport integrity. The lowering of the current 'reasonable belief' to 'reasonable suspicion' will promote the integrity of Australian sport. It is easy to dispel, or to establish, a suspicion about the conduct of a person - the ability for the ASADA CEO to be able to do this will promote expedition in the investigation of anti-doping rule violations, and in turn, the integrity of the relevant sport. On the other hand, if a suspicion is required to mature into a belief, this is likely to lead to lengthier investigations and, in turn, the existence of a continued threat to the integrity of a sport while a matter is being investigated.
Safeguards against unauthorised use of information
Section 67 of the ASADA Act creates an offence, punishable by two years' imprisonment, for an 'entrusted person' to disclose information except in the circumstances permitted by Part 8 of the ASADA Act. For the purposes of the ASADA Act, 'protected information' means all personal information collected for or under the ASADA Act other than information in relation to an entrusted person. The World Anti-Doping Code International Standard for the Protection of Privacy and Personal Information is a mandatory International Standard imposing strict requirements on an anti-doping organisation to ensure the privacy of persons subject to doping control are fully respected. As Australia's National Anti-Doping Organisation, ASADA must comply with this standard when processing personal information pursuant to the Code.
While the purposes for which this information can be lawfully released are generally directed to giving effect to Australia's anti-doping regime, the provisions give the CEO discretion to disclose information in other circumstances, for example, if ASADA uncovers information about the misconduct of an individual who is beyond the reach of the World Anti-Doping Code or the conduct is so serious it requires attention beyond the Code such as by other law enforcement or regulatory agencies. In this way, the provisions strike an appropriate balance between the need to maintain the confidentiality of information except when disclosure is necessary for the purposes of enforcing Australia's anti-doping regime or where it is necessary due to broader public interest considerations.

Committee comment

2.15 The committee thanks the minister for this response. The committee notes the minister's advice that, while a 'belief' can be formed based on intelligence gathered while investigating a potential anti-doping rule violation, it may be difficult to establish such a 'belief' and establishing a 'reasonable suspicion' would allow for further investigation. The committee also notes the minister's advice that lowering the current 'reasonable belief' standard will promote the integrity of Australian sport.

2.16 The committee further notes the minister's advice that the unauthorised use or disclosure of personal information obtained through a disclosure notice is an offence under section 67 of the Australian Sports Anti-Doping Authority Act 2006, and that the Australian Sports Anti-Doping Authority also complies with the World Anti-Doping Code International Standard for the Protection of Privacy and Personal Information.

2.17 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.18 In light of the information provided, the committee makes no further comment on this matter.

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[7] Schedule 1, items 13, 43 and 44. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[8] Senate Scrutiny of Bills Committee, Scrutiny Digest 10 of 2019, pp. 8-9.

[9] The minister responded to the committee's comments in a letter dated 28 November 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 10 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest