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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend the Australian Sports Anti-Doping Authority
Act 2006 to:
• amend the administrative phase of the Anti-Doping Rule Violation
process;
• extend statutory protection against civil actions to cover other
persons in their exercise of Anti-Doping Rule Violation functions;
• amend statutory protections for information provided to National
Sporting Organisations by the Australian Sports Anti-Doping
Authority (ASADA);
and
• amend ASADA's disclosure notice regime
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Portfolio
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Regional Services, Sport, Local Government and Decentralisation
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Introduced
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Senate on 14 February 2019
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1.29 Under the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act), the process for investigating anti-doping rule violations (ADRVs) currently involves consideration of potential ADRVs by the Anti-Doping Rule Violation Panel (the Panel). The statement of compatibility explains this process as follows:
• the CEO of the Australian Sports Anti-Doping Authority (ASADA) writes to the relevant athlete or support person giving notice of a possible ADRV and inviting the recipient to make a submission in response;[28]
• ASADA prepares material for consideration by the Panel, and the Panel determines whether a possible ADRV has occurred.
• If the Panel is satisfied that an ADRV has occurred, the ASADA CEO notifies the athlete of the Panel's decision.[29]
1.30 Currently, an athlete or support person may apply to the Administrative Appeals Tribunal (AAT) for review of a decision by the Panel to make an assertion relating to a potential ADRV.[30] Further, following an assertion by the Panel that an ADRV has occurred, the relevant athlete or support person will generally receive an infraction notice in accordance with their sport's anti-doping policy. The athlete or support person may contest this notice in a sports tribunal.[31]
1.31 The bill seeks to abolish the Panel and to make consequential amendments to the ASADA Act to remove the Panel from the ADRV investigation process. This would include removing the right for an athlete or support person to appeal to the AAT before an ADRV matter proceeds to a formal hearing.
1.32 The statement of compatibility indicates that the proposal to abolish the Panel follows findings by a review of Australia's sports integrity arrangements (the Wood Review)[32] that the Panel's involvement in the ADRV process is 'time consuming, overly complicated and duplicate[s] procedures'.[33] It also indicates that, despite the removal of the right to appeal to the AAT, athletes and support persons would retain the right to seek judicial review of a decision handed down by ASADA, as well as the right to have any allegations heard by a tribunal.[34]
1.33 The committee acknowledges the importance of simplifying processes for determining ADRVs, and notes that athletes and support persons would still have access to a number of review mechanisms: that is, review by the sport's anti-doping tribunal and by the proposed National Sports Tribunal (the tribunals).[35] However, it remains unclear whether those mechanisms would constitute sufficiently independent merits review. In this regard, the committee notes that the explanatory materials provide no information about the independence of the tribunals, their procedures or powers. Given the potentially very significant consequences of an ADRV determination for an athlete's reputation and future employment prospects, the committee would expect a more comprehensive explanation in the explanatory materials as to the review mechanisms that would be available.
1.34 The committee also notes that it does not generally consider the availability of judicial review, on its own, to be sufficient justification for excluding or removing merits review. This is because (unlike merits review) judicial review does not allow the court to undertake a full review of the facts and to determine whether the correct or preferable decision has been made.
1.35 The committee notes its scrutiny concerns regarding the proposal to remove review by the Administrative Appeals Tribunal of assertions by the Anti-Doping Rule Violation Panel in relation to potential anti-doping rule violations (consequential on the abolition of the Panel). The committee considers that the explanatory materials do not adequately address these concerns, and draws this matter to the attention of the Senate.
1.36 Under the ASADA Act, the ASADA CEO may issue a written notice (disclosure notice) requiring a person to attend an interview to answer questions, or to produce documents or things. Currently, the CEO may only issue such a notice if the CEO reasonably believes that the recipient has information, documents or things that may be relevant to the administration of the National Anti-Doping Scheme (NAD), and three members of the Panel are in agreement with the CEO's belief.[37]
1.37 The bill seeks to replace the requirement that the CEO 'reasonably believes' that the recipient of a disclosure notice has relevant information, with a requirement that CEO 'reasonably suspects' that the recipient has such information. It also seeks to remove the requirement that three members of the Panel agree with the CEO's belief, as a consequence of abolishing the Panel. This would have the effect of lowering the threshold for the issue of disclosure notices.
1.38 The explanatory memorandum explains that it is proposed to lower the threshold for issuing disclosure notices because:
[t]he current requirement necessitates that the ASADA CEO effectively already has evidence that suggests that an ADRV has taken place. By amending the threshold to 'reasonably suspects', the CEO will be able to issue disclosure notices to progress matters where there is a reason to suspect an ADRV has occurred but insufficient evidence to substantiate it. This brings the threshold into line with comparable statutory schemes.[38]
1.39 The statement of compatibility further notes that the Wood Review concluded that the current 'reasonable belief' standard means that disclosure notices are generally only sought and granted where ASADA already has evidence suggesting that an ADRV has taken place. It also states that lowering the threshold for issuing disclosure notices is necessary given the reliance on intelligence and investigations in increasingly sophisticated anti-doping matters.[39]
1.40 The committee appreciates the importance of ensuring that potential ADRVs are effectively investigated, however, it is unclear why a disclosure notice could not be issued under the existing standard; that is, why a 'reasonable belief' could not be formed on the basis of intelligence gathered while investigating a potential ADRV.
1.41 The committee also notes that a disclosure notice may require the recipient to provide personal information relating to the investigation of a potential ADRV. The improper use or disclosure of this information may trespass significantly on the right to privacy. For example, the release of information that suggests an athlete has committed an ADRV could cause significant damage to the athlete's reputation, and limit future employment prospects. The committee would therefore expect the explanatory materials to identify any relevant safeguards against the unauthorised use or disclosure of personal information. The committee notes that no such safeguards are identified in the explanatory materials.
1.42 Finally, it is unclear to the committee whether lowering the threshold for issuing disclosure notices would result in an increase to the number of such notices that are issued (thereby exposing a greater number of persons to trespasses on the right to privacy). The explanatory materials provide no information in this regard.
1.43 The committee notes its scrutiny concerns regarding the expansion of the basis on which persons may be required to disclose certain information and the impact this may have on the right to privacy. The committee considers that the explanatory materials do not adequately address these concerns, and draws this matter to the attention of the Senate.
1.1
[27] Schedule 1, Part 1, items 1-42. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iii).
[28] 'Athlete' is defined in section 4 of the ASADA Act as a person who competes in a sport and who is subject to the national anti-doping scheme. 'Athlete support personnel' includes any coach, trainer, manager, agent, team staff, official, medical, paramedical personnel, parent or any other person working with, treating or assisting an athlete participating or preparing for sports competition. See World Anti-Doping Agency, World Anti-Doping Code (2015), p. 132, https://www.wada-ama.org/sites/default/files/resources/files/wada-2015-world-anti-doping-code.pdf.
[29] Statement of compatibility, p. 3.
[30] Subsection 14(4) of the ASADA Act.
[31] See Australian Sports Anti-Doping Authority, Rule violation management process, at https:// www.asada.gov.au/rules-and-violations/rule-violation-management-process.
[32] The Wood Review was commissioned by the government in August 2017. The review report was presented to government in March 2018. See http://www.health.gov.au/internet/main /publishing.nsf/Content/the-review-of-australias-sports-integrity-arrangements.
[33] Statement of compatibility, p. 3.
[34] Statement of compatibility, p. 3. In this regard, the explanatory memorandum (p. 10) also notes that 'the role of the AAT is replicated through a number of other more efficient pathways'.
[35] The proposed National Sports Tribunal would be established by the National Sports Tribunal Bill 2019.
[36] Schedule 1, items 13, 46 and 47. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[37] Section 13(1)(ea) and section 13A of the ASADA Act.
[38] Explanatory memorandum, p. 14.
[39] Statement of compatibility, pp. 4-5.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2019/23.html