Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 172 (5 December 2019)

• Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019
• Immunity from civil liability 10
• Privacy13

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Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019

Purpose	This bill seeks to amend the Australian Sports Anti-Doping Authority Act 2006 to establish the Sport Integrity Australia agency
Portfolio/Sponsor	Youth and Sport
Introduced	House of Representatives on 17 October 2019
Bill status	Before the House of Representatives

Immunity from civil liability ^[10]

2.19 In Scrutiny Digest 8 of 2019 the committee requested the minister's advice as to why it is considered appropriate to provide members of the Advisory Council with civil immunity so that affected persons have their right to bring an action to enforce their legal rights limited to situations where lack of good faith is shown.^[11]

Minister's response^[12]

2.20 The minister advised:

Section 78 of the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act), as it is to be amended by the bill, is intended to promote the frank and open provision of advice by the Advisory Council to the Sport Integrity Australia Chief Executive Officer (CEO).
While the Advisory Council will not be permitted to provide advice relating to a particular individual or to a particular investigation (subsection 27(2)), inevitably, advice provided by the Advisory Council is likely to mention individuals or refer to incidents involving individuals who are capable of being identified. This will include, for example, individuals who may be, or have been, the subject of an investigation of threats to sports integrity.
In the event the Advisory Council's advice becomes publicly known, there is a risk a person mentioned in the advice might institute civil proceedings, for example for defamation, against one or more members of the Advisory Council. This is likely to inhibit the frank and open provision of advice by the Advisory Council to the CEO and, in turn, deprive Sport Integrity Australia of the benefit of the advice and experience of the Advisory Council members. Where Advisory Council members have been exercising their functions in good faith, they should not be exposed to proceedings aimed at frustrating their work and the work of Sport Integrity Australia more generally. New subsection 78(1A) will ensure Council members are appropriately protected in the performance of their functions.

Committee comment

2.21 The committee thanks the minister for this response. The committee notes the minister's advice that the immunity is aimed at protecting members of the Advisory Council that have exercised their functions in good faith. The committee also notes the minister's advice that it is likely to inhibit the provision of frank advice by members of the Advisory Council if a person mentioned in that advice might institute civil proceedings in response.

2.22 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 in understanding the law and, if needed, as extrinsic material to assist in interpretation (see section 15AB of the Acts Interpretation Act 1901).

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

Privacy^[13]

2.24 In Scrutiny Digest 8 of 2019 the committee requested the minister's more detailed advice as to why it is considered necessary and appropriate for Sport Integrity Australia to be an enforcement body for the purpose of the Privacy Act 1988. In particular, the committee noted that its consideration of this matter would be assisted by a fuller explanation of how Sport Integrity Australia's enforcement related activities will be undertaken in practice, including the nature of the enforcement powers and who will be exercising the enforcement powers.^[14]

Minister's response

2.25 The minister advised:

Consistent with the bill and in line with the Wood Review's recommendations, Sport Integrity Australia will function as a national platform for preventing and addressing threats to sports integrity and coordinating a national approach to matters relating to sports integrity with a view to:

• achieving fair and honest sporting performances and outcomes

• promoting positive conduct by athletes, administrators, officials, supporters and other

• stakeholders on and off the sporting arena

• achieving a safe, fair and inclusive sporting environment at all levels

• enhancing the reputation and standing of sporting contests and of sport overall.

The Bill defines 'threats to sports integrity' as including the:

• manipulation of sporting competitions

• use of drugs and doping methods in sport

• abuse of children and other persons in a sporting environment

• failure to protect members of sporting organisations and other persons in a sporting environment from bullying, intimidation, discrimination or harassment.

As identified in the Wood Review, '[s]ports integrity matters are now complex, globalised, connected and beyond the control of any single stakeholder.' Accordingly, to effectively execute its core functions, Sport Integrity Australia will be required to coordinate and strengthen relationships with a range of entities including sporting organisations, betting operators, domestic (Commonwealth, state and territory) and foreign law enforcement and regulatory agencies, and international organisations.
Critically, in order to 'prevent and address' threats to sports integrity, Sport Integrity Australia will be an information 'hub', collecting, analysing, interpreting and disseminating information, including personal and sensitive information, in coordination with this range of entities, often within a time-critical framework. Receiving, assessing and monitoring information from multiple and varied sources will also develop capability, knowledge and expertise to better identify current and future threats.
In terms of specific powers, Sport Integrity Australia will have the existing powers available to ASADA for anti-doping matters only, which include the powers to issue disclosure notices and to enforce breaches through the issuing of infringement notices or through instituting civil penalty proceedings.
It is fundamental to Sport Integrity Australia's role that it work side by side with conventional law enforcement bodies, sport betting regulators and sports controlling bodies and it will need the capacity to exchange information with those bodies. While Sport Integrity Australia will not directly enforce criminal laws, it will provide support and assistance to law enforcement agencies in enforcing laws relevant to sports integrity.
It is necessary to include Sport Integrity Australia in the definition of 'enforcement body' to give confidence to law enforcement agencies they can lawfully disseminate information to it. If Sport Integrity Australia is not included in the definition, it is likely law enforcement agencies will be reluctant to disseminate information they hold to Sport Integrity Australia, which will undermine its ability to achieve its purpose. It will also hinder the efforts of those law enforcement agencies to detect and prosecute criminal behaviour associated with sport.

Committee comment

2.26 The committee thanks the minister for this response. The committee notes the minister's advice that it is fundamental to the role of Sport Integrity Australia to be able to exchange information, including personal and sensitive information, with a range of entities, including conventional law enforcement bodies. In this regard, the committee notes the minister's advice that, while it will not directly enforce criminal law, Sport Integrity Australia may provide support and assistance to law enforcement agencies in enforcing laws relevant to sports integrity.

2.27 The committee also notes the minister's advice that Sport Integrity Australia will have the existing powers available to the Australian Sports Anti-doping Authority for anti-doping matters only, including the power to issue disclosure notices and infringement notices, and the power to institute civil penalty proceedings.

2.28 The committee further notes the minister's advice that it is considered necessary to designate Sport Integrity Australia as an enforcement body for the purposes of the Privacy Act 1988 as it would foster confidence with law enforcement agencies and aid in detecting and prosecuting criminal behaviour associated with sport.

2.29 While the committee notes this explanation, the committee does not consider that it adequately addresses its request for fuller information on how Sport Integrity Australia's enforcement related activities will be undertaken in practice. For example, the committee notes that it remains unclear as to who will be exercising the enforcement powers.

2.30 Noting that the minister's response and the explanatory materials do not adequately address the committee's concerns, the committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of designating Sport Integrity Australia as an enforcement body for the purposes of the Privacy Act 1988.

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[10] Schedule 1, item 53 proposed subsection 78(1A). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[11] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2019, pp. 10-11.

[12] 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

[13] Schedule 2, item 23. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[14] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2019, pp. 10-11.