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2016-2017-2018-2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT
(ENHANCING AUSTRALIA'S ANTI-DOPING CAPABILITY) BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Regional Services, Sport, Local
Government and Decentralisation, Senator the Hon Bridget McKenzie)
AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT
(ENHANCING AUSTRALIA'S ANTI-DOPING CAPABILITY) BILL 2019
OUTLINE
The Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's
Anti-Doping Capability) Bill 2019 improves the ability of the Australian Sports Anti-
Doping Authority (ASADA) to perform its functions within an increasingly complex
doping environment.
In August 2017, the Minister for Sport requested a Review of Australia's Sports
Integrity Arrangements (the Wood Review), as part of the work being done by the
Australian Government to develop a National Sport Plan. The report of the Wood
Review was delivered to the Minister in March 2018 and published on 1 August 2018.
The Wood Review is the most comprehensive examination of sports integrity
arrangements ever undertaken in Australia. It found that sports are challenged by a
range of mounting integrity threats, which include the increasing sophistication and
incidence of doping, the globalisation of sports wagering particularly through rapidly
growing illegal online gambling markets, the infiltration and exploitation of the sports
sector by organised crime, corruption in sports administration and growing participant
protection issues - particularly the sexual abuse of minors in sporting environments.
The Wood Review found that doping is more prevalent and widespread than ever
among athletes at all levels and is facilitated by the increasing availability of highly
sophisticated techniques that make it harder to detect. The Wood Review also found
that serious and organised crime is involved in the supply of performance and image
enhancing drugs and the current suite of statutory protections and powers under the
Australian Sports Anti-Doping Authority Act 2006 (ASADA Act) are not sufficient to
facilitate ASADA's increasing emphasis on intelligence-based investigations.
The Wood Review made a number of recommendations including legislative
amendments, principally to the ASADA Act, to allow ASADA's existing regulatory
functions to be carried out more effectively. These amendments provide for these
recommendations, with the principal effects to include:
Streamlining the administrative phase of the statutory anti-doping rule
violation process
Extending statutory protection against civil actions to cover other persons in
their exercise of Anti-Doping Rule Violation functions
Facilitating better information sharing between ASADA and National Sporting
Organisations (NSOs) through enhancing statutory protections for information
provided to an NSO by ASADA
Strengthening ASADA's disclosure notice regime
Financial Impact Statement
There is no financial impact associated with this Bill.
1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT
(ENHANCING AUSTRALIA'S ANTI-DOPING CAPABILITY) BILL 2019
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Australian Sports Anti-Doping Authority (ASADA) is the Australian
Government agency that focuses on the elimination of doping in sport thereby
contributing to the overall integrity of Australian sport and the health and wellbeing of
those who compete in sport.
In August 2017, the Minister for Sport commissioned the Review of Australia's
Sports Integrity Arrangements (Wood Review), as part of the development of the
Government's National Sport Plan. The Wood Review was delivered to the Minister
in March 2018, published on 1 August 2018 and is the most comprehensive
examination of sports integrity arrangements ever undertaken in Australia.
Specifically with respect to anti-doping, the Wood Review found that:
doping is more prevalent and widespread than ever among athletes at all
levels;
doping is facilitated by the increasing availability of highly sophisticated
techniques that make it harder to detect;
serious and organised crime is involved in the supply of performance and
image enhancing drugs; and
the current suite of statutory protections and powers under the ASADA Act
are not sufficient to facilitate ASADA's increasing emphasis on intelligence-
based investigations.
The Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's
Anti-Doping Capability) Bill 2019 responds to the Review recommendations and
aims to improve the ability of the ASADA to perform its functions within an
increasingly complex doping environment.
Human rights implications
This Bill engages the following rights:
Article 2(3) of the International Covenant on Civil and Political Rights
(ICCPR) - right to an effective remedy.
Article 14(2) of the ICCPR - right to presumption of innocence.
Article 17 of the ICCPR - privacy and reputation.
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Removal of the Anti-Doping Rule Violation Panel (ADRVP) and right to appeal to the
Administrative Appeals Tribunal (AAT).
This Bill gives effect to the Wood Review recommendations to streamline the anti-
doping rule violation (ADRV) process by removing the Anti-Doping Rule Violation
Panel (ADRVP) and, by consequence, removing an athlete's and athlete support
persons right to appeal to the Administrative Appeals Tribunal (AAT) before the
matter proceeds to a formal hearing.
The Wood Review noted the current ADRV process is 'overly bureaucratic,
inefficient, and cumbersome. Australia's implementation of World Anti-Doping
Code-compliant ADRV procedures is one of the most complicated of any countries in
the world and, as a result, it is confusing for those subject to an ADRV allegation and
to their representatives.'
The ADRV process includes steps that duplicate the consideration of a matter that can
lead to delays in its final determination. This involves approaching an athlete or
support person twice to respond to what are, generally, the same ADRV allegations.
In the first instance, the ASADA Chief Executive Officer (CEO) writes to the athlete
or support person giving notice of a possible ADRV and inviting the recipient to make
a submission to the ADRVP (the 'show cause notice'). ASADA then prepares
material for consideration by the ADRVP, which determines whether a possible
ADRV has occurred. In the event that the ADRVP is satisfied that an ADRV has
occurred, the ASADA CEO then notifies the athlete or support person of this
intention.
The Wood Review found this ADRV process to be convoluted and time intensive,
often taking a minimum of eight weeks from the issue of a 'show cause' letter for a
matter to pass through the ADRVP.
The proposed amendments, based on the Wood Review's recommendations, would
remove ADRVP consideration from the ADRV process and give full responsibility to
the CEO to manage a simplified process up to the point where the assertion of an anti-
doping rule have been made. The amendments would also remove a participant's right
to appeal to the AAT. Individuals will still have recourse against a decision handed
down by ASADA with an ability to seek a judicial review. The actions of the CEO
would rightly be scrutinised by a sport's anti-doping tribunal or the proposed National
Sports Tribunal.
The proposed amendments, based on the Wood Review's recommendations, would
remove the ADRVP from the ADRV process and simply be as follows:
1. The ASADA CEO would review evidence and determine if there has been a
possible ADRV. If the CEO determines there has been a possible ADRV, the
person is notified and invited to provide a submission within 10 days.
2. The ASADA CEO would review the submission provided and if they remain
satisfied a possible ADRV has been committed, an infraction against the
person is issued.
3. The person may then accept or contest the infraction in a tribunal.
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Article 2 (3) (a) of the ICCPR is engaged by this amendment:
To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity;
The ADRVP was intended to provide independent oversight of ADRV allegations and
act as a check on the power of the ASADA CEO to issue infractions. Likewise,
recourse to the AAT for any person unsatisfied with the ADRVP's determination
provided additional security to ensure a robust and independent process.
However, submissions to the Wood Review from both National Sporting
Organisations (NSOs) and ASADA stated that, in practice, the ADRVP's involvement
in the process was time-consuming, overly complicated and duplicated procedures.
Since the ADRVP was established, it has never overruled the ASADA CEO by
deciding that a matter should not proceed.
Nonetheless, while some checks-and-balances are removed by these amendments, the
process for a person alleged to have committed an ADRV will remain an 'effective
remedy'. By removing unnecessary delays to the pre-hearing process the person is
likely to have their allegation heard in a more timely fashion. In addition, the person
retains their right to have their allegation heard by a tribunal, who will act as the final
arbiter of whether an ADRV has been committed.
Importantly, the proposed amendments maintain Australia's ongoing commitment
under Article 3(a) of the United Nations Educational, Scientific and Cultural
Organization International Convention against Doping in Sport to adopt appropriate
measures at the national and international levels that are consistent with the Principles
of the World Anti-Doping Code.
Amendments to the burden of proof to issue a disclosure notice
Under the ASADA Act, the ASADA CEO may issue a disclosure notice to require a
person to do one or more of the following things; attend an interview to answer
questions, give information, or produce documents or things. The ASADA CEO may
only issue a disclosure notice if he or she reasonably believes that the person has
information, documents or things that may be relevant to administration of the
national anti-doping scheme and three ADRVP members are in agreement with this
belief.
The proposed amendment would lower this burden to a reasonable suspicion threshold
and, as a consequence of the previous amendment abolishing the ADRVP, remove the
requirement of three ADRVP members to share the belief.
Article 17 of the ICCPR is engaged by this amendment:
No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his
honour and reputation.
The Wood Review analysed the disclosure notice provisions in the ASADA Act and
concluded that 'the threshold of 'reasonable belief' means that disclosure notices are
generally only sought, and granted (by the ADRVP), in circumstances where ASADA
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already has evidence that might suggest that an ADRV has taken place - for instance,
in connection with an Adverse Analytical Finding (or AAF, that is, a returned positive
sample).'
The Wood Review recommended that the statutory threshold for the issue of a
disclosure notice should be that of a reasonable suspicion. A reasonable suspicion
threshold for the exercise of similar powers in relatively commonplace in comparable
statutory schemes and would be appropriate in these circumstances.
Doping in sport has become increasingly sophisticated as technology advances. The
national anti-doping framework is borne out of the premise that ADRVs would be
issued on the basis of an AAF. However, there is an increasing reliance on
investigations as doping becomes more sophisticated and harder to detect with
traditional testing. This is demonstrated by cases such as the 2015 revelations of
systematic institutionalised doping in Russian sport, the Lance Armstrong scandal and
the Essendon/Cronulla cases in Australia sport that were all reliant on investigative
techniques, rather than returned positive samples.
Given the increasing reliance on intelligence and investigations when pursuing
possible ADRVs, lowering the burden to a reasonable suspicion is a necessary,
reasonable and proportionate imposition on the individual's right to privacy.
Privilege against self-incrimination in relation to disclosure notice
The ASADA Act places limits to ASADA's coercive powers once a disclosure notice
has been granted. A person may claim privilege against self-incrimination when
answering a question or providing information to ASADA. However, a person cannot
claim privilege against self-incrimination in relation to a requirement to produce a
document or thing.
The proposed amendment would remove the privilege with respect to answering a
question or providing information, in effect, harmonising ASADA's current powers
across the provision of information. However, protections on use of the information
remain as it may not be used against the person for any proceeding other than in
connection with the ASADA Act, or an offence against 137.1 (false or misleading
information) or 137.2 (false or misleading documents) of the Criminal Code.
Article 14(g) of the ICCPR is engaged by this amendment:
Not to be compelled to testify against himself or to confess guilt.
The Wood Review found that for ASADA to effectively execute its intelligence and
investigative functions, the right to claim privilege against self-incrimination in
certain circumstances, as currently prescribed in the ASADA Act should be excluded.
It is often the case that player contracts include clauses that allow investigators acting
on behalf of a NSO to collect this information from those who have it. In the past,
ASADA has relied on the cooperation of NSOs in exercising this contractual right to
require athletes and other persons to answer questions. The proposed amendment will
cease ASADA's reliance on cooperation through private contracts and allow the
function to operate via statutory powers. This, in turn, provides those affected with an
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opportunity for recourse, for example, an athlete may challenge the issue of a
disclosure notice and seek a judicial review.
This, in effect, is a reasonable and proportional response as it brings current practice
into an appropriately regulated channel. Further, in an environment where organised,
concerted doping has become an elevated risk, the ongoing reliance on contractual
obligations in order to gather critical information and intelligence cannot be supported
- particularly when the reputational risks that stem from a doping scandal is so high
for sport.
Protection from civil actions
Currently, the ASADA Act includes a suite of regulatory protections for the ASADA
CEO, staff and engaged personnel to protect against civil action when they have acted
in good faith. This protects ASADA in its role when presenting evidence or material
against an athlete or support person at a hearing, the issuing of an infraction notice or
making recommendations about a provisional suspension.
The proposed amendments would extend this protection to NSOs, or a person
performing the work or services for the NSO.
The proposed amendment engages Article 2 (3) (a) of the ICCPR:
To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity;
The Wood Review identified that under the sporting administration body rules in the
National Anti-Doping (NAD) Scheme, NSOs are required to perform similar ADRV
functions to ASADA. While the ASADA Act protects the ASADA CEO, staff and
engaged personnel from civil action in its role of exercising ADRV functions, NSOs
do not experience this level of statutory protection against civil action when
performing similar ADRV functions.
Given anti-doping matters are becoming complex in nature, the role of NSOs in the
ADRV process continues to be an integral part of the investigative process. However,
a lack of statutory protection in the event of civil action presents as a potential barrier
for NSOs.
The Wood Review recommended extending statutory protection against civil actions
to cover NSOs and their staff in their exercise of ADRV functions. This is a
reasonable response to the policy problem that ensures NSOs and their staff are
protected from civil action in circumstances where anti-doping matters are becoming
more complicated.
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Conclusion
This Bill is compatible with human rights as it promotes rights, and to the extent that
it limits rights, these limitations are reasonable, necessary and proportionate to
achieving a legitimate objective.
Senator the Hon Bridget McKenzie, Minister for Regional Services, Sport, Local
Government and Decentralisation
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AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT
(ENHANCING AUSTRALIA'S ANTI-DOPING CAPABILITY) BILL 2019
NOTES ON CLAUSES
Clause 1: Short title
This clause provides that the Bill, once enacted, may be cited as the Australian Sports
Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability)
Act 2019.
Clause 2: Commencement
This clause sets out for the commencement of the entire Bill on a date to be fixed by
proclamation. If the provisions do not commence within the period of 6 months
beginning on the day this Act receives the Royal Assent, they commence on the day
after the end of that period.
Clause 3: Schedule(s)
This clause provides that each Act is specified in a Schedule to this Bill is amended or
repealed as set out in the applicable items in the Schedule concerned and any other
item has affect according to its terms. This is a technical provision that gives
operational effect to amendments contained in the Schedules. Schedule 1 amends the
Australian Sports Anti-Doping Authority Act 2006 as well as the Australian Sports
Commission Act 1989.
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SCHEDULE 1 - AMENDMENTS
Part 1 - Anti-Doping Rule Violation Panel
Australian Sports Anti-Doping Authority Act 2006
Item 1: Section 3 (simplified outline of the Act)
This item removes the words 'the Anti-Doping Rule Violation Panel (known as the
ADRVP) and' as a consequence of the ADRVP being abolished.
Item 2: Section 3 (simplified outline of the Act)
This item removes the description of the Anti-Doping Rule Violation Panel and its
functions from the simplified outline of the Act.
Item 3: Section 4 (definitions for ADRVP)
This item repeals the definitions of 'ADRVP', 'ADRVP Chair' and 'ADRVP
member'.
Item 4: Section 4 (definition of sporting administration body)
This item removes the reference to the ADRVP in the definition of sporting
administration body.
Item 5: Section 4 (definition of vacancy)
This item repeals the existing definition of vacancy and replaces it without reference
to the ADRVP.
Item 6: Section 5 (when is there a vacancy)
Section 5 is concerned with addressing the occurrence of a vacancy of an office in the
ADRVP or ASDMAC. This item repeals section 5 and replaces it without reference to
the ADRVP.
Item 7: Section 8A (Simplified outline of Part)
This item removes the words 'and review' from the simplified outline as a
consequence of the ADRVP being abolished.
Item 8: Paragraph 13(1)(h)
Section 13 addresses the anti-doping rules relating to Athletes and Support Persons
that must be contained in the NAD scheme. This paragraph authorises the ADRVP to
make assertions relating to investigations referred to in paragraph 13(1)(f). This item
removes 'ADRVP' and replaces it with 'CEO'.
Item 9: Paragraph 13(1)(i)
This item repeals paragraph 13(1)(i), which required to ADRVP to provide
notification to the CEO of an assertion.
Item 10: Subparagraph 13(1)(k)(i)
This item repeals subparagraph 13(1)(k)(i), which references paragraph 13(1)(i) and
replaces it with '(i) such assertions; and'.
9
Item 11: Paragraph 13(1)(m)
This item removes reference to paragraph 13(1)(i), which is repealed under Item 9 of
this Bill.
Item 12: Paragraph 13A(1A)(b)
This item removes 'rules; and' and replaces it with 'rules.'
Item 13: Paragraph 13A(1A)(c)
Section 13A deals with the power of the ASADA CEO to authorise the giving of a
notice that requires the production of information or documents. This item repeals the
paragraph requiring 3 ADRVP members to agree in writing that the belief formed by
the CEO in giving a notice for the production of information or documents is
reasonable. This paragraph is repealed due to the abolition of the ADRVP.
Item 14: Subsection 14(1)
This item amends subsection 14(1) so that reference to subsections (2) to (4) now
reads as a reference to subsections (2) and (3). This is due to the repeal of subsection
14(4) by Item 16.
Item 15: Subsection 14(3)
This subsection deals with the requirements to notify an Athlete or Support Person
where an assertion has been made relating to an investigation of a possible violation
of the anti-doping rules. This item removes all references to the ADRVP and replaces
it with the ASADA CEO as the authority to make an assertion will now be exercised
by the CEO upon the ADRVP being abolished.
Item 16: Subsection 14(4)
This item repeals subsection 14(4), which provided for a right of review to the
Administrative Appeals Tribunal of a decision to make an assertion by the ADRVP.
The role of the AAT is replicated through a range of other more efficient pathways.
Item 17: Paragraph 15(2)(d)
This paragraph is amended to give effect to the authority to make assertions being
transferred from the ADRVP to the CEO. Accordingly, reference to the ADRVP is
omitted and reference to the CEO is substituted.
Item 18: Paragraph 18(aa)
Section 18 provides that the NAD scheme may make provision for the listed bodies to
make decisions of an administrative character in relation to a matter. This item repeals
the paragraph to remove reference to the ADRVP.
Item 19: Paragraph 21(1)(kb)
Paragraph 21(1)(kb) gives the CEO a function to make resources and facilities
available to the ADRVP to assist in the performance of the ADRVP's functions. This
item repeals that paragraph.
Item 20: Subsection 24A(2)
Subsection 24A(2) provides that an ADRVP member is not eligible for appointment
as the CEO. This item repeals subsection 24A(2) based on the ADRVP being
abolished.
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Item 21: Part 5 - Anti-Doping Rule Violation Panel
Part 5 establishes the Anti-Doping Rule Violation Panel and provides for its functions,
appointment of ADRVP members, the terms and conditions of their employment and
the holding of meetings. This item repeals Part 5 based on the ADRVP being
abolished.
Item 22: Paragraphs 50F(a) and (b)
Paragraphs 50F(a) and (b) lists ASADA and the ADRVP in combination as a listed
entity for the purposes of the finance law. This item repeals those paragraphs and
replaces them with ASADA as a single listed entity.
Item 23: Paragraphs 50F(c) and (d)
This item removes reference to the listed entity and replaces it with ASADA due to
the removal of the ADRVP.
Item 24: Subparagraph 50F(d)(iv)
This item removes reference to the ADRVP as officials of ASADA.
Item 25: Paragraph 50F(e)
This item removes reference to the listed entity and replaces it with ASADA due to
the removal of the ADRVP.
Item 26: Subparagraph 50F(e)(ii)
This item amends the structure of the subparagraph to facilitate the repeal of
subparagraph 50F(e)(iv) by Item 27.
Item 27: Subparagraph 50F(e)(iv)
This item repeals subparagraph 50F(e)(iv) as it relates only to the functions of the
ADRVP.
Item 28: Subsection 54(2A)
Subsection 54(2A) provides that a member of the ADRVP is not eligible for
appointment as an ASDMAC member. This item repeals subsection 54(2A) based on
the ADRVP being abolished.
Item 29: Subsection 60(2)
This item removes reference to the ADRVP in relation to the restrictions on an
ASDMAC member providing information without the consent of the CEO where a
person has a matter before a sporting administration body or in a court or tribunal.
Item 30: Section 67A
Section 67A is the simplified outlined of the information management and secrecy
provisions in the ASADA Act. This item removes reference to the ADRVP in that
outline.
Item 31: Paragraph 68(d)
Section 68 lists the circumstances in which an entrusted person may disclose
protected information. This item repeals paragraph 68(d), which provided for
information to be disclosed for the performance of the functions or duties, or the
exercise of powers, of the ADRVP.
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Item 32: Paragraphs 69(c) and (d)
This item removes reference to the ADRVP in the definition of an entrusted person.
Item 33: Paragraph 69(fa)
This item removes reference to an ADRVP member as being an entrusted person.
Item 34: Subsection 78(1B)
Subsection 78(1B) provides ADRVP members with protection from civil proceedings.
This item repeals subsection 78(1B) based on the ADRVP being abolished.
Item 35: Paragraphs 78(3)(a) and (b)
This item removes reference to the ADRVP in respect of the civil protections afforded
to the Commonwealth more broadly under the ASADA Act.
Item 36: Paragraphs 78(4)(a), (b) and (c)
This item removes reference to the ADRVP in respect of the civil protections
provided to any person in respect of the listed acts done in good faith.
Item 37: Paragraph 78(4)(da)
This item repeals paragraph 78(4)(da), which afforded protection against civil
proceedings resulting from an act done in good faith where that act was the making of
a statement to, or the giving of a document to, the ADRVP in connection with the
performance of its functions.
Item 38: Saving and Transitional Provisions
This item provides saving and transitional provisions in relation to Parts 8 and 9 of the
ASADA Act as well as records or documents.
Secrecy
This item provides that Part 8 of the ASADA Act continues to apply on and after
commencement of these amendments in relation to any person who was an entrusted
person by virtue of being a person engaged by the Commonwealth to perform services
for the ADRVP, or a designated associate of a person or partnership engaged by the
Commonwealth to perform services for the ADRVP. Part 8 also continues to apply to
any person who was an ADRVP member.
Protection from Civil Actions
This item provides that despite the repeal of subsection 78(1B), that subsection, as in
force immediately prior to the commencement of the item, continues to apply on and
after that commencement date to a former ADRVP member in relation to an act done
or omitted to be done prior to that commencement.
Subsection 78(3) of the ASADA Act, despite its repeal, continues to apply in relation
to a publication or disclosure in good faith in the performance or purported
performance of any function of the ADRVP or in the exercise or purported exercise of
any power of the ADRVP made prior to its removal.
12
Subsection 78(4) of the ASADA Act, despite its repeal, continues to apply in relation
to the making of a statement to, or the giving of a document or information to, the
ADRVP at any time prior to its removal.
Records or documents
This item provides for the transfer of all documents in the possession of the ADRVP
to the CEO on commencement of these amendments.
Australian Sports Commission Act 1989
Item 39: Section 57A (heading)
This item removes reference to the ADRVP in the heading of section 57A based on
the ADRVP being abolished.
Item 40: Paragraph 57A(1)(b)
This item amends the structure of the paragraph to facilitate the repeal of paragraph
57A(1)(c) by Item 41.
Item 41: Paragraph 57A(1)(c)
This item repeals paragraph 57A(1)(c), which allows for the Australian Sports
Commission to disclose information to the CEO of ASADA where it is relevant to the
performance of the functions of the ADRVP. The paragraph is repealed based on the
ADRVP being abolished.
Item 42: Transitional Provision
This item provides that paragraph 57A(1)(c) continues to apply in respect of any
information relevant to the performance of the functions of the ADRVP disclosed by
the Australian Sports Commission to the ASADA CEO.
Part 2 - Protection from Civil Actions
Australian Sports Anti-Doping Authority Act 2006
Item 43: Section 78
This item provides for the inclusion of paragraph (5) to section 78, which extends the
protection against civil proceedings to national sporting organisations and their
employees or contractors.
This additional protection has been included to ensure that national sporting
organisations and their personnel are not disadvantaged by engaging with the
legislative anti-doping process through exposure to litigation. Extending this
protection will also better allow national sporting organisations to act in conjunction
with ASADA on anti-doping matters.
Item 44: Application provision
This item provides that section 78(5) only applies in respect of acts or omissions
occurring after its commencement.
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Part 3 - Disclosure to courts or tribunals
Australian Sports Anti-Doping Authority Act 2006
Item 45: Subsection 67(3)
This item removes the protection that allows an entrusted person to resist production
of protection information to a court or tribunal and extends it to any person in
possession of protected information.
Extending this protection will allow ASADA to better share information with key
stakeholders, in particular national sporting organisations, without the risk of that
information being identified in open court or tribunal proceedings. Better information
sharing will promote cooperation and coordination of anti-doping efforts and assist
ASADA in undertakings its functions more efficiently and effectively.
Part 4 - Disclosure Notices
Australian Sports Anti-Doping Authority Act 2006
Item 46: Paragraph 13(1)(ea)
This item amends paragraph 13(1)(ea) to alter the statutory threshold for the issuing of
disclosure notices. The requirement is currently that the ASADA CEO 'reasonably
believes' that a person has information, documents or things that may be relevant to
the administration of the NAD scheme. This item amends that threshold to be
'reasonably suspects'.
The 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 reason to suspect an ADRV has occurred but insufficient
evidence to substantiate it. This brings the threshold into line with comparable
statutory schemes.
Item 47: Paragraphs 13A(1A)(a) and (b)
This item amends paragraphs 13A(1A)(a) and (b) in line with paragraph 13(1)(ea) by
substituting 'reasonably believes' with 'reasonably suspects'.
Item 48: Subsection 13B(3)
Subsection 13B(3) currently requires the CEO to allow a person who would otherwise
be entitled to inspect or view a document produced pursuant to a disclosure notice to
do so at the times that the person would ordinarily be able to do so.
This item amends subsection 13B(3) to still allow that person to inspect or view the
document or item however only at such times and places as the CEO thinks
appropriate. This will allow for easier administration of this provision by allowing
ASADA to retain proper and effective control over documents and items that have
been produced.
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Item 49: Subsections 13C(1), (3) and (4) - Penalty
This item amends the current penalty provisions for non-compliance with a disclosure
notice by increasing it from 30 to 60 penalty units.
This has been done to bring the penalty into line with similar penalty provisions as
well as to ensure greater compliance with disclosure notices.
Item 50: Subsections 13D(1) to (2)
This item repeals subsections 13D(1), (1A) and (2). As currently legislated, those
subsections provide that a person is excused from complying with the requirement to
answer a question or to give information, pursuant to a disclosure notice, where that
answer may tend to incriminate them or expose them to a penalty.
This item substitutes subsections that provide that a person is not excused from
complying with the requirement to answer a question, give information or provide a
document or thing on the grounds that doing so may incriminate them or expose them
to a penalty. The substituted subsections also provide that any information so
provided is not admissible in proceedings other than offences against sections 137.1
or 137.2 of the Criminal Code in relation to the ASADA Act or any proceedings in
connection with the ASADA Act or ASADA Regulations.
This amendment harmonises the exercise of ASADA's powers across the multiple
sources of information obtainable from the disclosure notice process. It further aligns
ASADA's powers with pre-existing contractual powers utilised by many national
sporting organisations.
Item 51: Application provision
This item provides that amendments made by this Part only apply in respect of acts or
omissions occurring after its commencement.
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