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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Sport, the Hon. Kate Ellis MP)
AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT BILL 2009
OUTLINE
The purpose of the Bill is to amend the Australian Sports Anti-Doping
Authority Act 2006 (ASADA Act) to reflect new structural and governance
arrangements for the Australian Sports Anti-Doping Authority (ASADA), and
to make incidental amendments which flow from the changes to the Code and
reflect ASADA's operational circumstances.
ASADA is the key implementation agency for Australia's anti-doping program
and supports the Government in coordinating the harmonisation of anti-
doping efforts with State and Territory governments and national sporting
organisations. ASADA also plays a significant role internationally in
providing support and leadership to other anti-doping organisations. The
changes introduced by this Bill will ensure the efficacy of Australia's
anti-doping program is maintained and reinforce Australia's continued
commitment to the international anti-doping effort.
The Bill allows for the implementation of key recommendations arising from
an independent review of the ASADA that was commissioned by the Department
of Health and Ageing and undertaken during the latter half of 2008. The
review found that ASADA is not operating under optimal structural and
governance arrangements, and that some changes were required to enable a
clearer identification and understanding of the ASADA's main operational
functions.
Since its formation in 2006, ASADA has operated under Financial Management
and Accountability Act 1997 (FMA Act) arrangements, but has also performed
some functions that are more conventionally found in Commonwealth
Authorities and Companies Act 1997 (CAC Act) agencies. These hybrid
arrangements have resulted in some confusion and uncertainty as to how the
functions of the ASADA should best be managed and it is intended that such
uncertainties could be rectified by revising ASADA's governance
arrangements to better align with those of a standard FMA agency.
Creation of a CEO position
Central to these revisions will be the creation of a new ASADA Chief
Executive Officer (CEO) position, which will replace the office of the
ASADA Chair. The CEO will govern and manage the agency in a way that
promotes the efficient, effective and ethical use of Commonwealth
resources. The CEO will have responsibility for directing ASADA in
carrying out its functions under the ASADA Act, and will also assume the
financial and management responsibilities expected of a CEO and Head of
Agency under the FMA and Public Service Acts respectively. Remuneration
for the CEO position will be determined by the Remuneration Tribunal.
Formation of an Advisory Group
In addition, an Advisory Group will be formed to provide advice to the
ASADA CEO on sports doping matters. Members of the Advisory Group will be
appointed by the Minister for Sport and will have specialist skills that
will include, but not be limited to: education, stakeholder services,
sports medicine, pharmacology, sports law, ethics and investigations.
Unlike the current ASADA members (whose offices will be removed under the
amended legislation), the Advisory Group will have purely advisory
functions and will not be able to adjudicate on matters, implement
decisions, enter into contracts, charge fees for its services, or assume
responsibility for managing ASADA financial or staffing matters.
Establishment of an Anti-Doping Rule Violation Panel
The final major change enacted by this Bill involves the establishment of
an Anti-Doping Rule Violation Panel (ADRVP). Under current arrangements
ASADA's function of making findings on possible violations of the anti-
doping rules is performed by a sub-grouping of the ASADA members,
informally known as the Anti-Doping Rule Violation Committee (ADRVC).
The main reason for establishing the ADRVP under the ASADA Act as a
distinct new body is that it is appropriate for the quasi-judicial function
of deliberating on anti-doping rule violations to be dealt with separately
from the broader issues of anti-doping with which the CEO and the Advisory
Group would be concerned. The new ADRVP will consist of members with
specialist skills (e.g. sports law, sports medicine, pharmacology, etc).
In operational terms, ASADA will investigate a potential violation and will
advise the ADRVP when an individual has a case to answer. The ADRVP will
then deliberate on the matter, before making a finding (to be included on a
register of findings) on whether or not a rule violation has occurred and
reporting that finding back to ASADA. It will then fall to ASADA to inform
the individual concerned, and his/her sporting organisation, of the
violation and ensure that appropriate action is taken in response to the
breach.
To avoid any perception of conflict of interest, the ADRVP will not include
the ASADA CEO, Advisory Group appointees or ASADA staff among its
membership.
Transitional arrangements are provided by the Bill to ensure the ADRVP is
able to perform required functions, currently exercised by the ADRVC, that
are prescribed in the Australian Sports Anti-Doping Regulations 2006 (ASADA
Regulations).
Incidental amendments
The Bill also includes a number of incidental amendments to ensure the
ASADA Act remains consistent with the World Anti-Doping Code, which was
recently revised on 1 January 2009. For example, references to "sports
drugs" have been revised to "sports doping" to reflect that "doping"
accounts for both substances and methods used by athletes, whereas "drugs"
only accounts for substances. Changes have also been made to a series of
definitions contained in the ASADA Act, along with refinements to
provisions surrounding the protection and conditions of disclosure of
organisational and personal information.
In addition, transitional arrangements will be put in place to enable ASADA
and the ADRVP to carry out their functions under the National Anti-Doping
(NAD) Scheme. These arrangements are necessary, as legislative amendments
to the NAD Scheme will not be possible prior to the commencement of the
Bill.
The Bill will commence on 1 January 2010.
Financial Impact Statement
There is no financial impact associated with this Bill.
GLOSSARY
ADRVC - Anti-Doping Rule Violation Committee
ADRVP - Anti-Doping Rule Violation Panel
AG - Advisory Group
AI Act- Acts Interpretation Act 1901
ASADA - Australian Sports Anti-Doping Authority
ASADA Act - Australian Sports Anti-Doping Authority Act 2006
ASADA Regulations - Australian Sports Anti-Doping Authority Regulations
2006
ASC Act - Australian Sports Commission Act 1989
ASDMAC - Australian Sports Drug Medical Advisory Committee
CAC Act - Commonwealth Authorities and Corporations Act 1997
CEO - Chief Executive Officer
FMA Act - Financial Management and Accountability Act 1997
FOI Act - Freedom of Information Act 1982
LI Act - Legislative Instruments Act 2003
Minister - Commonwealth Minister for Sport
NAD Scheme - National Anti-Doping Scheme
PS Act - Public Service Act 1999
RT Act - Remuneration Tribunal Act 1973
AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT BILL 2009
NOTES ON CLAUSES
Clause 1 Short Title
This clause provides for the Bill, once enacted, to be cited as the
Australian Sports Anti-Doping Authority Amendment Act 2009.
Clause 2 Commencement
This clause provides that the Bill will commence on 1 January 2010.
Clause 3 Schedule(s)
This clause provides that each Act that 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 effect according to its terms.
Schedule 1 to the Bill amends the ASADA Act and the Australian Sports
Commission Act 1989 (ASC Act), and provides transitional and application
provisions, in respect of the governance arrangements. Schedule 2 makes
other amendments to the ASADA Act.
SCHEDULE 1-GOVERNANCE
PART 1- AMENDMENTS
Australian Sports Anti-Doping Authority Act 2006
Item 1 Section 3
This item removes the simplified outline from section 3 of the ASADA Act.
As the simplified outline provides summary information that is easily
gleaned from the table of contents, there was no strong need to keep the
outline in the legislation.
Items 2 to 16
These items make changes to section 4 of the ASADA Act which sets out the
definition of terms used in the Act.
Item 2 inserts a definition of ADRVP. This definition provides for the
recognition of the Anti-Doping Rule Violation Panel, established by the
Minister under new section 40, to make findings on possible anti-doping
rule violations.
Item 3 inserts a definition of ADRVP Chair. This definition provides for
the recognition of a person who is appointed by the Minister to act in the
capacity of chairperson of the ADRVP, established by the Minister under new
section 40, to make findings on possible anti-doping rule violations.
Item 4 inserts a definition of ADRVP member. This definition provides for
the recognition of a person who is appointed by the Minister to act in the
capacity of member of the ADRVP, established by the Minister under new
section 40, to make findings on possible anti-doping rule violations. The
ADRVP Chair is also included as a member of the ADRVP.
Item 5 inserts a definition of advisory committee. This definition
provides for the recognition of committees that may be formed under new
section 24P, from sub-groupings of the newly established Advisory Group
(AG), by the ASADA CEO, to assist him or her with sports doping matters.
Item 6 inserts a definition of advisory committee member. This definition
is needed to enable an eligible individual to be recognised as a member of
an advisory committee formed by the ASADA CEO, from a sub-group of the
newly established AG.
Item 7 inserts a definition of Advisory Group. This definition provides
for the recognition of an AG, established by the Minister under new section
25, to advise the ASADA CEO on sports doping matters.
Item 8 inserts a definition of Advisory Group Chair. This definition
allows for the recognition of a person who is appointed by the Minister to
act in the capacity of chairperson of the AG, established by the Minister
under new section 25, to advise the ASADA CEO on sports doping matters.
Item 9 inserts a definition of Advisory Group member. This definition
provides for the recognition of a person who is appointed by the Minister
to act in the capacity of member of the AG, established by the Minister
under new section 25, to advise the ASADA CEO on sports doping matters.
The AG Chair is also included as a member of the AG.
Item 10 removes the definition of ASADA Chair. This change is necessary,
as the position of ASADA Chair will be removed and replaced with the newly
created position of ASADA CEO.
Item 11 removes the definition of ASADA Deputy Chair. This definition is
necessary, as the position of ASADA Deputy Chair will cease to exist.
Item 12 removes the definition of ASADA member. This definition is
necessary, as the offices of the ASADA members will cease to exist.
Item 13 changes the definition of ASADA staff to reflect that the ASADA
staff, as a collective group, will constitute the broader ASADA agency
(together with the ASADA CEO). Under current arrangements, the ASADA staff
constitutes the broader ASADA agency together with the ASADA Chair. This
change is made necessary by the removal of the office of ASADA Chair to
make way for the newly created ASADA CEO position.
Item 14 inserts a definition of CEO. This definition is required to allow
for recognition of the individual appointed to the position of ASADA CEO by
the Minister under new section 24A.
Item 15 relates to the definition of sporting administration body, which
under the current ASADA Act broadly describes the various sporting
organisations with which ASADA interacts as part of its key function of
administering the NAD Scheme. ASADA itself is not included under this
definition of sporting administration body and, as the ADRVP and the AG are
also part of the legislative framework for implementation of the NAD
Scheme; this item makes clear that the ADRVP and the AG are also excluded
from the definition.
Item 16 deals with the definition of vacancy, which in the current ASADA
Act covers the offices held by ASADA members and members of the Australian
Sports Drug Medical Advisory Committee (ASDMAC), which is the specialist
body responsible principally for approving Therapeutic Use Exemptions to
enable an athlete to use a prohibited substance or prohibited method for
therapeutic purposes. As the offices of the ASADA members are being
removed under the amendments to the ASADA Act, this item refines the
definition of vacancy so that it only has meaning in relation to the office
of an ASDMAC, ADRVP or AG member.
Items 17 to 19 Subsection 5(1)
Section 5 of the ASADA Act outlines that:
. a vacancy for the office of ASADA member will exist where less than seven
persons hold such office (including the ASADA Chair and Deputy Chair);
and
. a vacancy for the office of ASDMAC member will exist where less than
seven persons hold such office (including the ASDMAC Chair).
With the removal of the ASADA members, these items revise the provisions
for a vacancy under the ASADA Act so that they cover the offices of ASDMAC,
ADRVP and AG members.
Items 20 to 22 Subsections 11(1) and (2)
Section 11 of the ASADA Act obliges the ASADA (constituted by the ASADA
Chair and the ASADA staff) to seek, and take into consideration the
responses to, public consultation on any changes it wishes to make to the
NAD Scheme by legislative instrument. With the office of the ASADA Chair
ceasing to exist, changes are required to subsections 11(1) and (2) to make
clear that the ASADA CEO will be responsible for seeking, and responding
to, public consultation for the purpose of amending the NAD Scheme.
Items 23 to 35 Subsection 13(1)
Section 13 of the ASADA Act makes clear that the NAD Scheme must
incorporate rules that authorise the ASADA (constituted by the ASADA Chair
and ASADA staff) to exercise a range of anti-doping functions relating to,
and in some cases involving the participation of, athletes and/or their
support persons.
With the office of the ASADA Chair being removed under amendments to the
ASADA Act, changes are required to section 13 to clarify that the ASADA CEO
will be responsible for anti-doping functions that include:
. requesting an athlete to keep ASADA informed of his/her whereabouts
(paragraph 13(1)(c), item 23);
. requesting an athlete to provide a sample and arranging for the testing
of the sample (paragraphs 13(1)(d) and (e), item 24);
. investigating possible anti-doping rule violations and disclosing
information obtained during the investigation of possible doping breaches
for the purposes of, or in connection with, the investigation (paragraphs
13(1)(f) and (g), item 24);
. notifying athletes, their support persons, and sporting administration
bodies of the findings resulting from these investigations and of any
recommendations relating to the consequences of these findings (paragraph
13(1)(j) and subparagraph 13(1)(j)(ii), items 28 and 29 respectively);
. presenting findings documented on a register of findings (to be
maintained by the ADRVP) and any recommendations relating to the
consequences of these findings at sporting tribunal hearings, either at
the request of a sporting administration body or on the CEO's own
initiative (paragraph 13(1)(k) and subparagraphs 13(1)(k)(ii) and (iv),
items 30, 31 and 32 respectively); and
. publishing information on or about the register of findings, subject to
the conditions set out in section 13 (paragraph 13(1)(m), item 34).
A further amendment will also be made to paragraph 13(1)(m)(i) to allow the
CEO to publish information on and relating to the register of findings
where such publication is consistent with the World Anti-Doping Code.
It should be noted here that the Australian Government cannot be a
signatory to the World Anti-Doping Code. However, it commits to the
"principles" of the Code by ratifying the UNESCO International Convention
Against Doping in Sport (UNESCO Convention).
In addition, changes to the ASADA Act will see responsibility for
investigating possible violations of the anti-doping rules being conferred
on the ASADA CEO, while responsibility for making findings relating to such
investigations will be vested in the ADRVP. As such, section 13 also makes
clear that the ADRVP will be tasked with exercising the following anti-
doping functions:
. making findings on possible anti-doping rule violations(paragraph
13(1)(h), item 25);
. making recommendations as to the consequences of such findings (new
paragraph 13(1)(ha), item 26);
. establishing and maintaining a register of such findings (paragraph
13(1)(i), item 27); and
. making or removing entries on the register (paragraph 13(1)(l), item 33).
Items 36 to 38 Subsections 14(2), (3) and (4)
Section 14 of the ASADA Act currently sets out the rights of an athlete or
support person in relation to certain powers and functions of the ASADA.
The revisions to section 14 contained in items 36 to 38 clarify that under
the revised ASADA governance arrangements some of these powers and
functions will now rest with the CEO (in the case of requesting athletes to
provide a sample or to keep the CEO informed of where the athlete can be
found) and some with the ADRVP (in the case of a decision to enter the name
and particulars of an athlete or support person on the register of
findings).
Items 39 to 41 Subsections 15(1) and (2)
Section 15 of the ASADA Act makes clear that sporting administration bodies
must adopt anti-doping rules, and that ASADA must monitor compliance to
these rules and notify the Australian Sports Commission (ASC) of any issues
relating to non-compliance.
With the office of the ASADA Chair ceasing to exist, changes are required
to paragraphs 15(1)(b), (c) and (d) and 15(2)(c) to clarify that the ASADA
CEO will be responsible for monitoring sporting administration body
compliance with anti-doping rules, notifying the ASC about the extent of
sporting administration body compliance with anti-doping rules, and
publishing reports relating to the extent of this compliance.
Changes to paragraph 15(2)(d) will clarify that the sporting administration
body rules should contain rules about sporting administration bodies taking
action in response to the ADRVP's findings relating to investigations of
possible violations of the anti-doping rules.
Item 42 Paragraph 18(a)
The ASADA Act presently allows for decisions of an administrative nature
under the NAD Scheme to be made by the ASADA (constituted by the ASADA
Chair and ASADA staff), ASDMAC, or any other body provided with this power
under provisions included in the ASADA Regulations.
Revisions to paragraph 18(a) recognise that this power must be shifted from
the outgoing ASADA Chair to the incoming ASADA CEO and extended to the
newly established ADRVP.
Item 43 Subsection 19(1)
Allowances have been made in the existing ASADA Act for the ASADA
(constituted by the ASADA Chair and ASADA staff) to charge fees, where
required, for functions performed by ASADA under the NAD Scheme. This item
substitutes a new subsection 19(1) to reflect the removal of the office of
the ASADA Chair, shifting the capacity to charge fees to the ASADA CEO.
Item 44 Part 3 (heading)
This item replaces the heading of Part 3 to reflect that the powers and
functions of ASADA will now be carried out by the ASADA CEO and the ASADA
staff (with the removal of the office of the ASADA Chair), while the
liabilities of ASADA will now vest in the Commonwealth.
The heading of Part 3 was previously "ASADA's establishment, functions,
powers and liabilities".
Item 45 Section 20
When ASADA was originally established in 2006 it retained some elements
attributable to the CAC Act, including its operational status as a body
corporate, enabling ASADA to sue or be sued in its own name. As ASADA is
being divested of its CAC Act elements; will no longer be a body corporate;
and is moving to a conventional FMA Act operating model, section 20 is
being amended.
New section 20 provides for the establishment of the ASADA.
New section 20A provides that the ASADA consists of the CEO and the ASADA
staff, and a note to this section assists the reader by making clear that
the ASADA does not have a legal identity that is separate from the
Commonwealth.
New section 20B emphasises that the primary function of the ASADA is to
assist the ASADA CEO in the performance of his or her duties.
New section 20C affords the ASADA the privileges and immunities of the
Crown.
This item also inserts new Part 3A, Division 1, section 20D which provides
for a CEO of the ASADA.
Items 46 to 58 Sections 21, 22, 23 and 24
New Part 3A (heading and new section 20D inserted by item 44) describes the
office of the ASADA CEO and prescribes the functions and powers associated
with this position, along with provisions relating to the appointment of
the CEO and the terms of office associated with this appointment.
Section 21 details the various functions of the ASADA that have been the
responsibility of the ASADA (constituted by the ASADA Chair and ASADA
staff) under present arrangements in the ASADA Act. Responsibility for
several of these functions will now sit with the ASADA CEO and subsection
21(1) and (2) and paragraphs 21(1)(a), (b) and (m) and 21(2)(n) are amended
to reflect this (items 46, 47, 50, 52 and 53).
A new provision has been inserted at 21(1)(ja) which obliges ASADA to
cooperate with counterpart organisations found in foreign countries within
the broader Oceania region (in particular, ASADA's counterpart agency in
New Zealand), where these organisations have functions that are the same as
or similar to the functions performed by the ASADA CEO (item 48).
New functions added to paragraph 21(1)(k) will compel the ASADA CEO to make
necessary resources and facilities available to the AG that is being formed
for the purpose of assisting him or her with sports doping matters, as well
as for the ADRVP. New subparagraphs 21(1)(ka) and (kb) deal with the
provision of resources and facilities to the AG and ADRVP (item 49).
The addition of new subsection 21(1A) obliges the ASADA CEO to take into
account advice, where it is provided by the AG, in performing his or her
functions or exercising his or her powers (item 51). It should be noted
that this clause does not oblige the CEO to act in accordance with such
advice, but only to give consideration to it.
Item 54 repeals sections 22 and 23 which deal with ASADA's powers and
financial liabilities, and inserts a new section 22 which provides that the
ASADA CEO is empowered to do all things necessary of convenient to be done
in connection with performing his or her functions. The note to this
section refers readers to section 44 of the FMA Act in respect of the power
to enter into a contract on behalf of the Commonwealth, making clear that
ASADA is an FMA agency.
Section 24 relates to the Minister's directions to ASADA. Subsections
24(1), (2)(b) and (3) are amended to replace references to ASADA with the
ASADA CEO (items 55, 56 and 57). New subsection 24(4) provides that the
ASADA CEO is not obliged to comply with directions given (by legislative
instrument) by the Minister where such directions relate to the CEO's
performance of his or her functions and powers under the FMA and PS Acts
(item 58). The heading to section 24 is also amended to reflect the ASADA
CEO.
Item 59
This item inserts new Divisions 2 to 4 and new sections 24A to 24P.
Division 2 - Appointment of the CEO
New section 24A states that the ASADA CEO is to be appointed by the
Minister, on a full-time basis, by written instrument (subsection 24A(1)).
As the establishment of the ADRVP is primarily based on the intention of
keeping the decision-making arm (with respect to anti-doping rule
violations) of the anti-doping program independent, this section also
addresses the ineligibility of ADRVP and AG members to be appointed as the
ASADA CEO (subsection 24A(2)).
Subsection 24A(3) makes clear that an appointment as ASADA CEO is not
invalid because of a defective instrument of appointment or any
irregularity in the appointment.
New section 24B provides that the period of office for which the CEO can be
appointed must not exceed five years. The note to this section refers
readers to the Acts Interpretation Act 1901(AI Act) in respect of re-
appointment, which provides that in any Act, a reference to appointment
includes re-appointment.
New section 24C provides for the Minister, by written instrument, to
appoint persons to act in the role of CEO. Subsection 24C(1) describes the
circumstances in which the position of CEO may be vacant, and subsection
24C(2) provides that if a person takes an action in accordance with their
acting appointment, but the appointment is not valid (for example, because
a defective instrument was used to action the appointment), their action is
not invalid.
A note to this section refers readers to sections 20 and 33A of the AI Act
which provide that where an Act mentions a person holding or occupying a
particular office or position then, unless the contrary intention appears,
it includes all persons who at any time occupy or perform the duties of the
office or position; and set out the general rules that apply where a
provision of an Act confers on a person or body, power to act in a
particular office.
Division 3 - Terms and conditions for CEO
As the Head of Agency role at ASADA transfers from the outgoing office of
ASADA Chair to the newly created position of ASADA CEO, fresh consideration
must be given to level of remuneration (and associated allowances) that the
new position will entail.
New section 24D stipulates that matters of remuneration as they apply to
the ASADA CEO position will be determined by the Remuneration Tribunal or,
in the absence of such a determination, remuneration will be prescribed by
regulations made under this proposed section (subsection 24D(1)). Any
allowance payable to the CEO will be prescribed by the regulations
(subsection 24D(2)).
Subsection 24D(3) clarifies that this section has effect subject to the
Remuneration Tribunal Act 1973 (RT Act), meaning that it should be read in
the context of that Act and the means by which the Remuneration Tribunal
sets remuneration. This is a standard provision included in similar
legislation.
Other standard provisions contained in Division 3 cover significant aspects
of the employment conditions pertaining to the CEO's appointment,
including:
. an obligation for the CEO to disclose potential or actual conflicts of
interest to the Minister, in writing (section 24E);
. a stipulation forbidding the CEO from engaging in outside paid employment
without approval from the Minister (section 24F);
. recreation leave entitlements that are determined by the Remuneration
Tribunal (subsection 24G(1)) and scope for the Minister to grant the CEO
leave of absence, other than recreation leave, subject to the conditions
and remuneration determined by the Minister (subsection 24G(2));
. provision for the CEO to tender his or her resignation to the Minister,
in writing (subsection 24H(1) and for that resignation to have effect
from the date it is received by the Minister or a later day if specified
(subsection 24H(2));
. provision for the Minister to terminate the CEO's appointment (subsection
24J(1) and the reasons for which the Minister can do so (subsection
24J(2)); and
. capacity for the Minister to set, in writing, additional terms and
conditions that will apply to the CEO's appointment (section 24K).
Paragraph 24J(2)(e) is especially noteworthy as it allows for the CEO to be
dismissed by the Minister in situations where the CEO inappropriately
discloses personal information relating to the NAD Scheme or services
contracted by ASADA. Inappropriate disclosure of this type is an offence
carrying a maximum penalty of two years imprisonment and this provision
aligns the CEO with behavioural expectations stipulated for members of the
AG, ASDMAC and the ADRVP.
Division 4 - ASADA's staff etc.
Subsection 24L(1) outlines that ASADA staff are to be engaged under the PS
Act, in line with conventional procedure for a government agency.
Subsection 24L(2) reflects the changes of ASADA's constitution from ASADA
Chair and ASADA staff, to the new situation in which ASADA is constituted
as a statutory agency by the ASADA CEO and the ASADA staff.
New section 24M provides a standard provision enabling Commonwealth
employees to assist the ASADA CEO in performing his or her functions or
exercising his or her powers.
Division 5 - Delegation
New subsection 24N sets out standard provisions relating to the situations
in which the ASADA CEO can delegate any or all of his or her functions and
powers, in writing, and to whom he or she may delegate those functions or
powers.
The ASADA CEO may not delegate the power to amend the NAD Scheme
(subsection 24N(2)), and can only delegate to an individual appointed as a
chaperone or drug-testing official a function or power which is conferred
by the NAD Scheme (subsection 24N(3)).
Subsection 24N(4) requires that a delegate must comply with any directions
given by the ASADA CEO in respect of exercising a delegated power of
function.
Division 6 - Advisory committees
Section 24P gives the ASADA CEO the capacity to form, in writing, advisory
committees to assist with the performance of his or her functions
(subsection 24P(1)). These advisory committees will consist of sub-groups
of the broader AG membership (subsection 24P(2)) and will allow the ASADA
CEO to better tailor investigations into, and/or advice provided on,
specific sports doping matters to the skill strengths and operating styles
of particular AG members, where required.
Any appointments to an advisory committee will be subject to the terms and
conditions determined by the ASADA CEO (subsection 24P(3)), and the ASADA
CEO may issue directions to an advisory committee regarding the carrying
out of its functions or its meeting procedures (subsection 24P(4)).
Subsections 24P(5) and (6) make clear that instruments made by the CEO to
establish an advisory committee or to give directions are not legislative
instruments, and are therefore not subject to the Legislative Instruments
Act 2003 (LI Act). These provisions are merely declaratory and included
for the avoidance of doubt.
Item 60 Part 4 (heading)
Part 4 of the ASADA Act has dealt explicitly with the appointment of ASADA
members and the terms and conditions relating to these appointments. As
the offices of the ASADA members are to be removed with the introduction of
the amended legislation, the content of Part 4 is amended (items 61 to 77)
to cover the terms of office that are associated with the newly established
AG.
This has necessitated a change to the heading of Part 4, which was
previously "ASADA's constitution and membership".
Item 60 Division 1 of Part 4
This item repeals Division 1 of Part 4 and inserts a new Division 1 and new
sections 25 and 25A.
Division 1 - Advisory Group's establishment, functions and powers
New section 25 of the ASADA Act establishes the AG.
Unlike the outgoing ASADA members (whose offices are being removed) who had
capacity for decision-making in the exercising of their ASADA functions,
members of the AG will fulfil a purely consultative function, and will only
be empowered to advise and make recommendations to the ASADA CEO, when
requested, on sports doping matters (subsection 25A(1)).
Subsection 25A(2) empowers the AG to do all the things necessary or
convenient to be done in connection with performing its functions.
For the avoidance of doubt, subsection 25A(3) makes clear that the AG
cannot give directions to the ASADA CEO.
Item 62 Division 2 of Part 4 (heading)
The heading for this Division has been revised to reflect that it now
covers provisions relating to the membership of the AG, rather than the
outgoing offices of the ASADA members.
Item 63 Sections 26 and 27
These items repeal and replace sections 26 and 27.
New section 26 clarifies that the AG will consist of a minimum of two and
maximum of seven members, including the member serving as Chair of the AG.
The membership numbers attached to the AG have been arrived at on an
understanding that an advisory body of this type should give voice to the
views of more than a single individual. The numbers also allow for
membership of the AG to incorporate specialist knowledge from a range of
sporting disciplines that are intended to ensure wide coverage of issues
that the ASADA CEO is likely to request AG consultation on.
New section 27 details the relevant specialist skills that members need to
have to be considered for appointment to the AG (subsection 27(2)), and
that appointments are by the Minister, on a part-time basis (subsection
27(1)).
The note to this section refers readers to the AI Act in respect of re-
appointment, which provides that in any Act, a reference to appointment
includes re-appointment.
Subsection 27(3) elucidates that the ASADA CEO and members of the ADRVP
will not be eligible for appointment to the AG. These restrictions are
deemed necessary to ensure that the operations of ASADA are not clouded by
role confusion and to avoid conflicts that could arise through individuals
trying to perform multiple (and often overlapping) functions.
The Minister is required to appoint an AG member to be Chair (subsection
27(4)).
Subsection 27(5) makes clear that an appointment as an AG member or Chair
is not invalid because of a defective instrument of appointment or any
irregularity in the appointment.
Items 64 and 65 Section 28
The amendment to section 28 makes clear that members of the AG can only be
appointed to that office for a maximum period of three years. This time
limitation is in keeping with standard appointment provisions of this type,
as preferred by the Department of Finance and Deregulation. It should be
noted, however, that the completion of a three-year term of office by an AG
member will not render an individual ineligible for subsequent
reappointment to that office, where such reappointment is deemed acceptable
to the Minister.
This item also amends the heading to this section to replace the reference
to ASADA members.
Items 66 to 68 Section 29
Section 29 of the ASADA Act caters for the appointment of ASADA members on
an acting basis. With the removal of the offices of the ASADA members,
subsections 29(1), (2) and (3) are amended to shift focus to acting
appointments for members of the AG.
The amended section sets the same standardised acting provisions that were
in place for the outgoing ASADA members, including:
. a stipulation that acting appointments are to be made by the Minister;
. direction that these appointments can be made where vacancies exist or
during periods where existing members are unable to perform their duties;
and
. provision that an individual cannot act in the positions of Chair or
member of the AG where they do not meet criteria set down for membership
of the AG.
The heading to section 29 and the subheadings of subsections 29(1) and (2)
are also amended to replace references to ASADA members and ASADA Chair.
Item 69 Division 3 of Part 4 (heading)
The heading for this Division has been revised to reflect that it now
covers the membership of the AG, rather than the outgoing offices of the
ASADA members.
Items 70 and 71 Subsections 30(1) and 30(2)
Section 30 of the ASADA Act applies to the outgoing offices of the ASADA
members and has been revised to spell out that the levels of remuneration
(and associated allowances) for the offices of the AG members will be
determined by the Remuneration Tribunal.
As the AG will be a newly established entity, a fresh assessment of
remuneration levels will be required from the Tribunal. Given that the AG
will fulfil a purely consultative function and will be required to provide
advice to the ASADA CEO on a somewhat infrequent basis, members will be
remunerated at sessional rates.
Items 72 to 76 Sections 31 to 38
These sections apply to the outgoing offices of the ASADA members. They
are amended or replaced to apply to AG members.
New section 31 details the requirement for AG members to inform other
members, and the Minister, whenever a potential or actual conflict of
interest arises that may compromise the performance of their duties.
The provisions of section 31 are a standard feature of the ASADA Act and
maintain consistency with the expectations of professional behaviour that
are outlined for other bodies established under the ASADA Act, such as
ASDMAC and the ADRVP.
New section 32 expands on the expectations detailed in new section 31 to
make clear that a member of the AG must advise other AG members of a
potential or actual conflict of interest, prior to deliberating on a matter
relating to this conflict. This allows the remaining AG members to assess
whether the nature of the conflict of interest disclosed warrants the
disclosing member to participate in deliberations on the issue, or remove
himself or herself from the deliberations. Any such disclosure, and the
AG's subsequent determination, must be recorded in the minutes of the
meeting.
New sections 33 and 34 make standard provisions prohibiting AG members from
engaging in outside paid employment which the Minister considers may
conflict with the performance of their duties, allowing the Minister to
grant the AG Chair a leave of absence, and allowing the AG Chair to grant
leave of absence to any other AG member.
Amended section 36 makes standard provisions for situations where an AG
member may wish to resign his or her office (item 73). New subsection
36(1A) allows for situations where an individual may wish to pare back
their participation on the AG to relinquish Chair duties in preference for
participation as a member only (item 74).
New section 37 makes standard provisions for situations where the office of
an AG member can be terminated by the Minister. Paragraph 37(2)(e) is
especially noteworthy as it allows for an AG member to be dismissed by the
Minister in situations where the member inappropriately discloses personal
information relating to the NAD Scheme or services contracted by ASADA.
Inappropriate disclosure of this type is an offence carrying a maximum
penalty of two years imprisonment and this provision aligns the AG members
with behavioural expectations stipulated for the ASADA CEO and members of
ASDMAC and the ADRVP (item 75).
Amended section 38 affords the Minister the power to set additional
criteria for an individual to meet before he or she can be appointed to the
AG (item 76).
Item 77 At the end of Part 4
A new Division 4 has been inserted into Part 4, which spells out the
processes and procedures through which meetings of the AG will be convened,
conducted and recorded. The provisions contained in this Division, as new
section 39, emphasise that the ASADA CEO has substantial control over when,
and how often, meetings of the AG are needed and convened. As the
intention is for the AG to advise the ASADSA CEO, when such assistance is
requested, subsection 39(1) makes clear that only the ASADA CEO can convene
meetings of the AG.
The ASADA CEO may determine matters, in writing, relating to the operation
of the AG. Subsection 39(6) makes clear that such a determination is not a
legislative instrument, and is therefore not subject to the LI Act. This
provision is merely declaratory and included for the avoidance of doubt.
Item 78 Parts 5 and 6
This item repeals Parts 5 and 6 and inserts new Parts 5 and 6 and new
sections 40 to 50E.
Part 5 - Anti-Doping Rule Violation Panel
Division 1 - ADRVP's establishment and functions
Part 5 of the existing ASADA Act relates to matters of decision-making and
delegation powers in place for the ASADA. With the removal of the offices
of the ASADA Chair and members, the provisions found in this Part will no
longer have basis and have been reshaped and relocated to other Parts of
the ASADA Act accordingly.
The new Part 5 covers the provisions associated with the newly established
ADRVP.
New section 40 establishes the ADRVP and new section 41 outlines its
functions, which primarily involves the exercise of powers in relation to
the NAD Scheme. As NAD Scheme functions are predominantly spread across
the Regulations and associated legislative instruments, transition
arrangements are inserted in the ASADA Act (refer Part 2 of Schedule 1), to
ensure that the ADRVP is invested with the authority to perform these
functions. Subsection 41(2) sets out the constitutional limits on the
ADRVP which reflects the limits imposed on the CEO under amended subsection
21(2).
The note to paragraph 41(1)(a) refers readers to paragraphs 13(1)(h), (ha),
(i) and (l) of the ASADA Act which relate to the functions regarding the
making of findings relating to investigations of possible violations of the
anti-doping rules.
Division 2 - ADRVP's membership
New section 42 clarifies that the ADRVP will consist of a minimum of four
and maximum of seven members, including the member serving as Chair of the
ADRVP. The membership numbers attached to the ADRVP have been arrived at
on an understanding that a deliberating body of this type requires a quorum
of sufficient number and diversity of experience to make considered
decisions on sports doping rule violations. The numbers also allow for
membership of the ADRVP to incorporate specialist knowledge from a range of
disciplines that is intended to ensure wide coverage of issues that are
likely to be covered in the course of an investigation of a possible doping
breach.
New section 43 details the relevant specialist skills that members need to
have to be considered for appointment to the ADRVP (subsection 43(2)), and
that appointments are made by the Minister, on a part-time basis
(subsection 43(1)).
Subsection 43(3) elucidates that the ASADA CEO and members of the AG will
not be eligible for appointment to the ADRVP. These restrictions are
deemed necessary to ensure that the operations of ASADA are not clouded by
role confusion and to avoid conflicts that could arise through individuals
trying to perform multiple (and often overlapping) functions.
The Minister is required to appoint an ADRVP member to be Chair (subsection
43(4)).
Subsection 43(5) makes clear that an appointment as an ADRVP member or
Chair is not invalid because of a defective instrument of appointment or
any irregularity in the appointment.
New section 44 makes clear that members of the ADRVP can only be appointed
to that office for a maximum period of three years. This time limitation
is in keeping with standard appointment provisions of this type, as
preferred by the Department of Finance and Deregulation. The note to this
section refers readers to the AI Act in respect of re-appointment, which
provides that in any Act, a reference to appointment includes re-
appointment.
New section 45 makes provision for the Minister to appoint members to the
ADRVP or ADRVP Chair in an acting capacity. These provisions are standard
for this process and in keeping with the procedures in place for the AG and
ASDMAC.
A note to this section refers readers to sections 20 and 33A of the AI Act,
which provides that where an Act mentions a person holding or occupying a
particular office or position then, unless the contrary intention appears,
it includes all persons who at any time occupy or perform the duties of the
office or position; and set out the general rules that apply where a
provision of an Act confers on a person or body, power to act in a
particular office.
Division 3 - Terms and conditions for ADRVP members
New section 46 of the ASADA Act spells out that the levels of remuneration
for the offices of the ADRVP members will be determined by the Remuneration
Tribunal. As the ADRVP will be a newly established entity, a fresh
assessment of remuneration levels will be required from the Tribunal. In
the absence of such a determination, remuneration will be prescribed by
regulations made under this proposed Act (subsection 46(1)). Any allowance
payable to ADRVP members will be prescribed by the regulations (subsection
46(2)).
Subsection 46(3) clarifies that this section has effect subject to the RT
Act, meaning that it should be read in the context of that Act and the
means by which the Remuneration Tribunal sets remuneration. This is a
standard provision included in similar legislation.
Other standard provisions contained in this Division cover significant
aspects of the employment conditions pertaining to the appointment of ADRVP
members, including:
. a stipulation forbidding members from engaging in outside paid employment
if the Minister considers it may conflict with the performance of duties
(section 47);
. an obligation for members to disclose potential or actual conflicts of
interest to the Minister, in writing (section 48) and to the ADRVP,
requiring that any such disclosure, and the ADRVP's subsequent
determination, must be recorded in the minutes of the meeting (section
49);
. an expectation that ADRVP members will remain removed from participating
in the making of a decision for a sporting administration body where they
may have previously deliberated on the same matter for the ADRVP (section
50);
. scope for the Chair to take leave of absence as granted by the Minister,
or for the members to take leave of absence as granted by the Chair
(section 50A);
. provision for a member to tender his or her resignation to the Minister,
in writing (subsection 50B(1)), and for that resignation to have effect
from the date it is received by the Minister or a later day if specified
(subsection 50B(3));
. provision for the Minister to terminate the appointment of a member and
the range of reasons for which the Minister may do so (section 50C); and
. capacity for the Minister to set, in writing, additional terms and
conditions that applies to a member's appointment (section 50D).
Subsection 50B(2) allows for situations where an individual may wish to
pare back their participation on the ADRVP to relinquish Chair duties in
preference for participation as a member only.
Subsection 50C(e) is especially noteworthy as it allows for an ADRVP member
to be dismissed by the Minister in situations where the member
inappropriately discloses personal information relating to the NAD Scheme
or services contracted by ASADA. Inappropriate disclosure of this type is
an offence carrying a maximum penalty of two years imprisonment and this
provision aligns the ADRVP members with behavioural expectations stipulated
for members of the AG, ASDMAC and the ASADA CEO.
Division 4 - Meetings
New Division 4 spells out the processes and procedures through which
meetings of the ADRVP will be convened, conducted and recorded (item 50E).
These provisions are generally standard in nature and maintain consistency
with the meeting procedures in place for the AG and ASDMAC.
The ASADA CEO may determine matters, in writing, relating to the operation
of the ADRVP. Subsection 50E(4) makes clear that such a determination is
not a legislative instrument, and it is therefore not subject to the LI
Act. This provision is merely declaratory and included for the avoidance
of doubt.
Items 79 to 82 Part 7
Part 7 of the ASADA Act sets up the ASDMAC and establishes the criteria by
which this body will operate. ASDMAC is the specialist body responsible
principally for approving Therapeutic Use Exemptions to enable an athlete
to use a prohibited substance or prohibited method for therapeutic
purposes.
The changes made to subsections 52(1) and (2), 58(3) and 59(4) do not alter
the processes followed and functions performed by ASDMAC, which will remain
as they are following the amendments of the ASADA Act.
As things presently stand, however, the ASADA (constituted by the ASADA
Chair and ASADA staff) has interactions with, and links to, ASDMAC in the
performance of that body's functions. With the office of the ASADA Chair
being removed, revisions are required at relevant junctures of this Part of
the ASADA Act to make clear that the ASADA will now be constituted by the
ASADA CEO.
Items 83 to 99 Sections 67 and 68
Sections 67 and 68 of the ASADA Act set out the situations in which the
ASADA (constituted by the ASADA Chair and ASADA staff) can access and make
use of customs information relating to the import of prohibited substances
and explains the occasions on which the ASADA can disclose this information
to concerned sporting administration bodies.
These provisions will remain in place, and their intent will not alter with
amendments, but revisions have been made at relevant junctures of the text
to make clear that the ASADA will now be constituted by the ASADA CEO.
Amendments of this type occur in subsections 67(1)(b), 67(1)(d)(i),
67(1)(d)(ii), 67(1)(e), 67(1)(f), 67(1)(g), 67(2), 67(3), 67(4), 68(1),
68(1)(a), 68(3)(b), 68(4)(b), and 68(6).
Item 83 amends the heading of section 67 and items 95 and 99 amend the
headings of subsection 68(1) and 68(6) respectively, by replacing
references to ASADA with CEO.
Item 86 makes provision for the ADRVP, AG and any advisory committees
(formed by the ASADA CEO under new section 24P) to have authority under law
to access, use and further disclose, customs information where such
information relates specifically to sports doping matters.
Item 89 underscores the new provisions at item 86 by identifying the ADRVP,
AG and any advisory committees (formed by the ASADA CEO under new section
24P) as performing functions under the NAD Scheme that are deemed
appropriate for receiving access to customs information under subsection
16(9) of the Customs Administration Act 1985.
Item 94 amends section 67 to add new subsections that enable the ASADA CEO
to disclose protected customs information to the ADRVP, AG or associated
advisory committees, where such disclosure is in keeping with their
respective functions, and where such disclosure relates to the ASADA CEO's
administration of the NAD Scheme.
It should be noted here that although the AG and associated advisory
committees will only perform a consultative role, they will nevertheless be
advising the ASADA CEO on any sports doping related issues that he or she
may see fit to request assistance with. As an issue could overlap with
customs related matters, it is necessary for the AG and associated advisory
committees to have access to such information so that they can be fully
briefed when advising the ASADA CEO. The need for these bodies to have
access to customs information also works from the understanding that while
the ASADA CEO does not have to make decisions based on advice received from
the AG or the committees, he or she can do so should they wish.
Items 100 to 105 Sections 69 and 72
Section 69 of the ASADA Act sets out that certain individuals are deemed to
be 'entrusted persons' for the purpose of protecting the confidentiality of
personal information utilised by the ASADA in the exercising of its various
functions. Individuals currently deemed to be 'entrusted persons' under
the ASADA Act include:
. ASADA members;
. members of the ASADA staff;
. persons contracted to perform services for ASADA or the ASDMAC, and/or
their designated associates;
. employees of Commonwealth authorities or agencies employed to assist the
ASADA in the performance of its functions;
. individuals appointed as chaperones or drug testing officials under the
NAD Scheme;
. ASDMAC members;
. members of advisory committees established by the ASADA Chair; and
. individuals attending meetings of the ASADA or any of the ASADA's
designated advisory committees.
With the office of the ASADA Chair to be removed, revisions were required
to this section to make clear that references to the ASADA or the ASADA
Chair are replaced with references to the ASADA CEO. Extra provisions have
also been added to indicate that members of the newly established ADRVP and
the AG (including any sub-committees) will also have access to personal
information used by ASADA and therefore must also conform to the
expectations outlined for 'entrusted persons' under the ASADA Act.
Items 106 to 122 Part 9 - Other matters
Part 9 of the ASADA Act makes provisions for a range of miscellaneous
elements and activities that are of interest to the ASADA in the
performance of its functions. These elements include:
. a standing obligation for the ASADA to prepare an annual report on the
ASADA's operations and present this to the Minister and both Houses of
Parliament (section 74);
. a requirement to prepare and provide reports (or specified information)
to the Minister where requested by the Minister in writing (section 75);
. an understanding that the ASADA is exempt from income and state/territory
taxes (section 76);
. a clarification that the ASADA, ASADA members, persons contracted to
perform services on behalf of the ASADA, and members of ASDMAC receive
protections from civil actions in relation to the proper exercise of
their duties for the ASADA (section 78); and
. a provision for the Governor-General to make regulations appropriate to,
and associated with, the ASADA Act.
Sections 74 and 75 will remain as they presently appear in the ASADA Act,
except for minor revisions to reflect the change to ASADA wherein the ASADA
CEO will assume responsibility for these tasks following the removal of the
ASADA Chair (items 106 to 112).
Section 76 is to be repealed as ASADA will no longer have the status of a
corporate entity and this will remove any scope for doubt about whether
ASADA is a 'public authority' for the purposes of section 50-25 of the
Income Tax Assessment Act 1997 (item 113).
Section 77 will also be repealed. This section has precluded the ASADA
members from giving direction to the ASADA Chair on the exercise of his or
her financial and staff management powers. This section has recognised
that such powers can only be exercised by the ASADA Chair (or an
appropriate delegate) under provisions provided to the CEO and Head of
Agency respectively under the FMA and PS Acts. With the removal of the
offices of the ASADA members, and allowing for the fact that the AG is
restricted to only providing advice to the ASADA CEO, there is no longer a
need for this provision to be retained in the ASADA Act (item 113).
Section 78 will remain in the ASADA Act, but the provision relating to the
outgoing ASADA members is to be removed, and references relating to the old
ASADA (constituted by the ASADA Chair and the ASADA staff) will be revised
to reflect the new constitution involving the ASADA CEO and allowing for
responsibilities to be transferred, as appropriate, to the ASADA CEO, the
ADRVP or the AG. (items 114 to 116, and 118 to 121).
Amendments will also be made to section 78 to extend protection from civil
actions to the AG and the ADRVP (item 117).
In addition, a new subsection 78(4)(da) has been included to ensure that
persons in good faith giving statements to the ADRVP, or providing a
document or other information to the ADRVP, are protected from civil action
(item 122).
Australian Sports Commission Act 1989
Items 123 and 124
The ASC Act establishes the ASC as a statutory authority of the Australian
Government. The ASC is Australia's primary national sports administration
and advisory agency. It plays a lead role in the development and operation
of the Australian sports system, administering and funding innovative sport
programs and providing leadership, coordination and support for the sports
sector.
One of many functions performed by the ASC involves cooperating with
national and international sporting organisations to help in achieving a
sporting environment free from unsanctioned doping. Subsection 7(4A) of
the ASC Act stipulates that the pursuit of this function should not overlap
with the functions performed by the ASADA with its anti-doping program.
A minor change is required to this clause to make clear that the functions
of the ASADA are now the responsibility of the ASADA CEO (item 123).
A similar change is also required for section 57A of the ASC Act to reflect
this change of responsibility for ASADA (item 124). This section of the
ASC Act makes provision for the ASC to disclose information to ASADA where
this information relates to sports doping matters, or where it is relevant
to the performance of ASADA's functions.
PART 2-APPLICATION AND TRANSITIONAL PROVISIONS
Part 2 to Schedule 1 of the Bill has been included to provide transitional
provisions that are required to ensure that ASADA is capable of continuing
its functions following amendments to the legislation. Part 2 also
transitions current ASADA obligations and responsibilities across to the
amended ASADA Act.
Division 1 - Definitions
Item 125 sets out the definitions for the terms used in Part 2 of the Bill.
Division 2 - Liabilities and legal proceedings
Item 126 clarifies that any liabilities applying to the ASADA immediately
before commencement of the Bill will transfer to the Commonwealth on
amendment of the ASADA Act.
Subitem 127(1) states that the Commonwealth will substitute for the ASADA
in relation to any outstanding legal proceedings, pending in any court or
tribunal prior to commencement of the amended ASADA Act, regarding assets
held in trust by the ASADA. Subitem 127(2) substitutes the ADRVP for the
ASADA where the proceedings concerned involve an appeal relating to an anti-
doping rule violation that is pending in the Administrative Appeals
Tribunal.
Division 3 - ASADA members
Division 3 of Part 2 recognises that the offices of the non-executive
members of the ASADA will be cease to exist upon commencement of the
amended ASADA Act (item 128).
Division 4 - References to, and things done by or in relation to, the ASADA
or the ASADA members
Division 4 of Part 2 provides for things done by, or in relation to, the
ASADA members.
Item 129 states that responsibility for the functions of the ASADA that
have been performed by the non-executive ASADA members will transfer to the
ASADA CEO after the commencement time; excepting in circumstances where the
Minister, in writing, determines that a particular function does not apply
to the non-executive ASADA members, or determines that the function
concerned should apply instead to the Commonwealth.
This item also allows for the Minister to determine that a function
previously performed by the non-executive ASADA members, may now be done
by, or in relation to, a person or body other than the ASADA CEO or the
Commonwealth.
Additionally, item 129(6) states that any determination made by the
Minister relating to functions previously performed by the non-executive
ASADA members is not considered to be a legislative instrument and is
therefore not subject to the LI Act. This provision is merely declaratory
and included for the avoidance of doubt.
Item 130 makes provision for instruments in place immediately prior to
commencement and referring to the non-executive ASADA members, to continue
as if the references to the non-executive ASADA members were a reference to
the ASADA CEO.
This item also allows for the Minister to determine that a reference
previously relating to the non-executive ASADA members, may now relate to a
person or body other than the ASADA CEO or the Commonwealth.
Additionally, item 130(4) states that any determination made by the
Minister concerning references previously relating to the non-executive
ASADA members is not considered to be a legislative instrument and is
therefore not subject to the LI Act. This provision is merely declaratory
and included for the avoidance of doubt..
Division 5 - Transitional arrangements relating to the Anti-Doping Rule
Violation Committee
Under current arrangements, ASADA's rule violation function is performed by
a sub-grouping of the ASADA members, informally known as the Anti-Doping
Rule Violation Committee (ADRVC).
Subitem 131(1) states that a person who has been serving as an ASADA member
immediately prior to the commencement of the amended ASADA Act, is taken to
have been duly appointed as a member of the ADRVP immediately after
commencement, by the Minister under new section 43.
This item also makes clear that, under these arrangements, a member will
hold this office for a length of time specified, in writing, by the
Minister and on the terms or conditions that are determined by the Minister
(subitems 131(2) and (3)).
At subitem 132(4), clarification is provided that a person is restricted
from transitioning to interim membership of the ADRVP (under subitem
132(1)) where he or she is appointed (in an acting or permanent capacity)
to the position of ASADA CEO or AG member.
New item 132 elucidates that possible rule violation cases being considered
by the ADRVC immediately prior to commencement of the Bill, will be
completed by the ADRVP.
Item 132 ensures that cases being progressed by the ADRVC, immediately
prior to commencement of the Bill, can be continued to be progressed by the
ADRVP following commencement. It is also intended that the ADRVP will be
able to review decisions made by the ADRVC in relation to incomplete cases.
Division 6 - Reporting requirements
Item 133 sets out the processes by which ASADA will deal with reporting
requirements following commencement of the amended ASADA Act. This
paragraph clarifies that reporting requirements that were the
responsibility of the non-executive ASADA members will now be provided by
the ASADA CEO. Under this item, it is made clear that the law, in respect
of a report, applies to the ASADA CEO in the same way that the law would
have applied to the non-executive ASADA members.
Division 7 - Miscellaneous
A range of provisions are made under this Division, which allow for:
. the exemption of the ASADA from paying stamp duty or other State or
Territory taxes in relation to assets or liabilities transferred to the
ASADA upon commencement of the Bill (item 134);
. an obligation for the Commonwealth to pay reasonable compensation to a
person where the ASADA acquires property from that person otherwise than
on just terms (item 135);
. the Minister to, by writing, delegate any or all of his or her powers
under this Part of the ASADA Act to the ASADA CEO (item 136); and
. the Governor-General to make regulations (including those of a
transitional nature) prescribing matters required under this Part of the
ASADA Act to be prescribed or necessary and convenient to be prescribed
for carrying out or giving effect to this Part (item 137).
SCHEDULE 2-OTHER AMENDMENTS
Australian Sports Anti-Doping Authority Act 2006
Schedule 2 makes provision for incidental amendments to the ASADA Act aimed
at ensuring consistency with the World Anti-Doping Code.
Items 1 to 7 Section 4
These items make changes to section 4 of the ASADA Act which sets out the
definition of terms used in the Act.
Item 1 inserts a revised definition of athlete. This definition clarifies
that an athlete is an individual who participates in a sporting activity
and who meets he definition of athlete under the NAD Scheme. The previous
definition more broadly described an athlete as an individual who
participated in a sporting activity.
Item 2 repeals paragraph (a) of the definition of doping method and
substitutes a revised paragraph (a) in its place. Substitution of the
revised paragraph is needed to broaden the scope of a sample that can be
returned by an athlete as part of a doping test. For example, the new
definition will allow for human hair to be covered under a doping test,
while the previous definition only allowed for human fluid, tissue or
breath.
Item 3 changes the definition of national sporting organisation. This
change removes the words "or is generally recognised [by the ASC]" from the
existing definition, and is required in order to limit the national
sporting organisations that the ASADA must monitor and report on for
section 15 of the Act and the NAD Scheme. By limiting these organisations
to those officially recognised by the ASC, the ASADA will not be left open
to having to monitor and report on smaller and/or amateur organisations
that would otherwise be inappropriate for such consideration under the Act
and the NAD Scheme.
Item 4 alters the definition of sample. This reflects the changed
definition of doping method, and enables broader human biological material
(such as hair) to be obtained from athletes for the purposes of testing
under the NAD Scheme.
Items 5 and 6 repeal the existing definition of sports drug and safety
matter and replace it with a new definition of sports doping and safety
matter. This altered definition is needed to cover an associated revision
to ASADA functions that formerly dealt with 'sports drug and safety
matters'. The switch from 'drug' to 'doping' recognises that the term
doping covers the methods employed by athletes to gain an unfair
competitive advantage (for example, blood replacement) and not merely the
drugs that athletes may use in seeking such advantage.
Item 7 repeals the definition of support person and replaces it with a new
definition. This new definition will ensure that the anti-doping rules,
and ASADA's jurisdiction, can apply to all members of an athlete's
entourage
Items 8 to 10 Sections 9 to 11
Item 8 repeals the note included in the paragraph describing what is meant
by the term NAD Scheme or National Anti-Doping Scheme. This new note now
refers to the definition of the term contained in section 4 of the ASADA
Act.
Item 9 repeals section 10 and substitutes a revised version of this
paragraph. Section 10 makes provision for the ASADA CEO to be able to make
amendments to the NAD Scheme, by written instrument, where such amendments
relate to any or all of the matters specified in the paragraph.
Previously, such amendments have been made by the ASADA, who have been able
to alter all elements of the NAD Scheme by written instrument. Under new
arrangements, all elements of the NAD Scheme that are not specified in
section 10 of the ASADA Act will be remade, where necessary, by the
Governor General in Council.
Item 10 makes an alteration to subsection 11(1) to clarify that the ASADA
CEO must undertake appropriate public consultation on any proposed changes
to the NAD Scheme that he or she may wish to make under the provisions of
section 10(1).
Items 11 to 15 Section 21
These items make a range of consequential amendments to the functions of
the ASADA that are detailed in amended section 21 of the ASADA Act.
These amendments are largely minor in nature, involving:
. the substitution of the term 'sports drug' with 'sports doping' to
reflect a broadening of the description of ASADA's key anti-doping
program functions to cover doping methods, and not merely doping
substances (paragraphs 21(1)(c), (e), (f), (g), (h), (i) and (j) and the
associated note provided in subsection 21(1));
. repealing the provision for ASADA to advise the ASC about recognising a
sporting organisation as being responsible for administering the affairs
of a sport, or of a substantial part or section of a sport, in Australia
(paragraph 21(1)(d); and
. substitution of the requirement for ASADA to provide other services
including information technology services relating to sports drugs, on
behalf of the Commonwealth, with a fresh requirement for the ASADA to
provide other services including educational services relating to sports
doping.
Items 16 to 20 Section 52
Section 52 of the ASADA Act details the functions of ASDMAC and provides
the criteria by which this body will operate. ASDMAC is the specialist
medical body responsible for providing sports medicine advice to athletes,
sporting agencies and organisations, Government, sporting tribunals and
anti-doping laboratories.
The incidental amendments to this section include:
. the substitution of the term 'sports drug' with 'sports doping' to
reflect a broadening of the description of ASADA's key anti-doping
program functions to cover doping methods, and not merely doping
substances (paragraphs 52(1)(b)(ii), 52(1)(c)(i), 52(1)(d) and the
associated note provided in subsection 52(1)); and
. omission of the words "advice and" from paragraph 52(1)(c) so as to
clarify that ASDMAC only has to provide information, and not advice, to
sporting administration bodies about individual cases relating to sports
doping matters or issues relating to anti-doping testing or safety
checking services (item 17).
Item 21 Section 71
Section 71 sets out provisions relating to the protection of personal
information under the NAD Scheme. This paragraph makes clear that it is an
offence to improperly disclose personal information obtained under the NAD
Scheme unless such disclosure is for the purposes of the ASADA Act, for the
purposes of the NAD Scheme, consented to by the individual concerned,
disclosed to the individual to whom the information relates, disclosed to
the Australian Federal Police, disclosed to Customs, or prescribed in the
ASADA Regulations.
An incidental amendment after paragraph 71(2)(f) extends this exemption to
cover disclosures to relevant State or Territory medical bodies; foreign
medical bodies, a Commonwealth or State or Territory law enforcement
agency; and foreign or international law enforcement agencies.
Items 22 and 23 Section 72
Section 72 sets out provisions relating to the protection of personal
information relating to services provided to ASADA under contract. This
paragraph makes clear that it is an offence to improperly disclose contract
services personal information unless such disclosure is: for the purposes
of the ASADA Act; a disclosure for the purposes of the provision of the
services to which the contract services personal information relates;
consented to by the individual concerned; disclosed to the individual to
whom the information relates; disclosed to the Australian Federal Police;
disclosed to Customs; or prescribed in the ASADA Regulations.
Further amendment after paragraph 72(2)(f) extends this exemption to cover
disclosures to relevant State or Territory medical bodies; foreign medical
bodies, a Commonwealth or State or Territory law enforcement agency; and
foreign or international law enforcement agencies.
(item 22).
Division 4.4 of the NAD Scheme sets out detailed requirements regarding
ASADA's disclosure of information. These include the requirement for ASADA
to obtain a legally binding agreement from a body receiving the information
(unless the body is already subject to the Privacy Act 1988 or a similar
law) that it will not use or disclose the information for a purpose other
than the purpose for which the information is given to the body; it will
securely retain and restrict access to the information; and it will destroy
or return the information to ASADA once the purposes for which the
disclosure is made are completed.