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Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019 [2019] AUSStaCSBSD 128 (13 November 2019)

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

Immunity from civil liability ^[16]

1.29 Proposed subsection 78(1A) provides that no civil liability will arise from any action taken by an Advisory Council member in good faith in the performance or purported performance of any functions of the Advisory Council. This therefore removes any common law right to bring an action to enforce legal rights (for example, a claim of defamation), unless it can be demonstrated that lack of good faith is shown. The committee notes that in the context of judicial review, bad faith is said to imply a lack of an honest or genuine attempt to undertake the task and therefore the courts have taken the position that bad faith can only be shown in very limited circumstances.

1.30 The committee expects that if a bill seeks to provide immunity from civil liability, particularly where such immunity could affect individual rights, this should be soundly justified. In this instance, the explanatory memorandum provides no explanation for this provision, merely restating the terms of the provision.^[17]

1.31 The committee requests 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.

Privacy^[18]

1.32 The bill seeks to amend the Australian Sports Anti-Doping Authority Act 2006 to replace the Australian Sports Anti-Doping Authority (ASADA) with Sport Integrity Australia. Item 23 of Schedule 2 to the bill makes Sport Integrity Australia an enforcement body for the purposes of the Privacy Act 1988. This has number of effects for how personal information is managed by Sport Integrity Australia, including that Sports Integrity Australia would not be required to obtain an individual's consent to collect sensitive information and would be able to disclose personal information in certain circumstances.

1.33 The statement of compatibility states:

The exemptions will only apply in relation to circumstances where the use or disclosure of particular information is reasonably necessary for Sport Integrity Australia's enforcement related activities. Sport Integrity Australia will otherwise remain subject to the requirements of the Privacy Act, including the Australian Privacy Principles.^[19]

1.34 The statement of compatibility further states that:

Appropriate protections remain in place to ensure information may only be accessed in certain circumstances, that is, relating to the investigation of possible breaches of anti-doping rules. Specifically, the current secrecy provisions in Part 8 of the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act) will relevantly be retained for Sports Integrity Australia.^[20]

1.35 While the committee notes this explanation, the committee's consideration of the bill would be assisted by a fuller explanation of how Sport Integrity Australia's enforcement related activities will be undertaken in practice. This is particularly the case given that, as acknowledged in the statement of compatibility, unlike Sport Integrity Australia, most enforcement bodies under the Privacy Act are responsible for investigating matters that may result in civil penalties or criminal charges.^[21]

1.36 The committee therefore requests 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's 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.

1.1

[16] 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).

[17] Explanatory memorandum, p. 12.

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

[19] Statement of compatibility, p. 4.

[20] Statement of compatibility, p. 4.

[21] Statement of computability, p. 4.