Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010 - 2011 - 2012 - 2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT BILL 2013
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Sport, Senator the Hon. Kate Lundy)
AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT BILL 2013
OUTLINE
The purpose of the Bill is to amend the Australian Sports Anti-Doping Authority Act 2006
(ASADA Act) to strengthen the Australian Sports Anti-Doping Authoritys (ASADA)
investigation functions and to enhance information sharing arrangements with other
government agencies. In addition, the Bill re-aligns the operation of the Anti-Doping Rule
Violation Panel, clarifies conflict of interest provisions for members of anti-doping bodies
established under the ASADA Act and confirms the statutory period for commencing action
against an athlete in relation to possible anti-doping rule violations.
ASADA is the Australian Government agency responsible for protecting Australias sporting
integrity through the elimination of doping and the implementation of the World Anti-Doping
Code in Australia. ASADAs powers and functions are specified under the ASADA Act and
Australian Sports Anti-Doping Authority Regulations 2006 (regulations), including the
National Anti-Doping (NAD) Scheme, which comprises Schedule 1 to the regulations.
The changes introduced by the Bill will provide additional capabilities to ensure ASADA can
meet the contemporary challenges faced in a changing anti-doping environment where the
analytical testing of urine and blood samples is not exclusive in detecting the most
sophisticated doping cases. Only through the application of investigative techniques and
intelligence gathering, combined with an effective drug testing program, can an anti-doping
agency hope to identify those athletes and athlete support personnel who choose to use
prohibited performance enhancing substances and methods.
Enhancing ASADAs Investigation Function
The primary focus of the Bill is Schedule 1 which enhances ASADAs investigation function
by providing the ASADA Chief Executive Officer (CEO) or the CEOs delegate, with the
power to issue a notice (referred to as a disclosure notice) compelling persons of interest to
assist in ASADAs investigations.
A disclosure notice issued by the CEO will require a specified person to attend interviews
with ASADA investigators, provide specific documents, materials (including electronic
materials and products) and things (such as video cameras, medications, training bags). The
Bill will also enable ASADA to retain those documents, materials or things for use in
proceedings for an anti-doping rule violation, or to make copies of those documents or
materials for use in such proceedings.
Civil penalty provisions will apply for failing to comply with a disclosure notice (that is, for
a failure to provide information, documents or things requested, failure to attend an interview,
or failure to answer questions at interview). The civil penalty will be 30 penalty units.
The Bill will also enable the regulations to be amended to establish an infringement notice
scheme whereby the CEO can issue an infringement notice to a person who contravenes the
requirements of a disclosure notice. The CEO will have the power to issue an infringement
notice requiring the person to pay a penalty to the Commonwealth as an alternative to civil
proceedings against the person. In this case, the civil penalty will be 6 penalty units.
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The Bill also confirms that information collected through the issuing of a disclosure notice
may be presented to a hearing of a sporting administration body, the Court of Arbitration for
Sport or any other tribunals that relate to sports doping and safety matters.
In addition to the protections afforded by the ASADA Act, ASADA regulations and NAD
scheme, the Bill contains a number of additional provisions that protects the rights of a
person receiving a disclosure notice. Of note, the CEO must, prior to issuing a disclosure
notice, seek the written agreement of three members of the Anti-Doping Rule Violation Panel
that the CEOs belief is reasonable belief. Other provisions are outlined in the Statement of
Compatibility with Human Rights.
Extension of Existing Information Sharing Arrangements
Schedule 2 of the Bill will extend ASADAs existing information sharing arrangements with
government agencies to also include Australia Post. ASADAs existing information sharing
arrangements with other Government agencies and law enforcement bodies have proven
successful in assisting ASADA to identify and pursue anti-doping rule violations committed
by athletes and athlete support personnel.
Arrangements with Australia Post will assist ASADAs intelligence and investigations
through the provision of up-to-date information regarding persons residing at addresses
which could be helpful in identifying athletes who are receiving prohibited substances
through the post. Australia Post is also the only agency able to provide information relating
to post office box registrations. ASADA will not be able to intercept or examine the contents
of any mail items.
Disclosure of Protected Customs Information
The proposed bill inserts a provision which allows the Chief Executive Officer (CEO) to
decide not to disclose to an athlete that protected customs information relating to the athlete
has been passed to relevant sporting administration bodies where that disclosure is likely to
prejudice a current investigation into a possible anti-doping rule violation. To ensure
transparency in regard to this power, the CEO would be obliged to report in ASADAs
Annual Report how many times this discretion has been exercised.
Definitions relating to the Anti-Doping Rule Violation Panel
The Bill also makes clear that the Anti-Doping Rule Violation Panel (the Panel) is not a
hearing body within the meaning of Article 8 of the World Anti-Doping Code; rather, the
Panels role is to make a finding that an athlete or support person has possibly committed an
anti-doping rule violation.
Conflict of Interest Provisions
The Bill will broaden the current conflict of interest provisions in the Act to apply to matters
relating to the Panels or Australian Sports Drug Medical Advisory Committees (ASDMAC)
activities rather than just the performance of its functions. In particular, the Bill will clarify
that a member of the Panel is prohibited from providing information, advice, evidence or
support to a person who has a matter before ASDMAC or in proceedings before other bodies
(e.g. a sporting tribunal). Similarly, an ASDMAC member is prohibited from providing
information, advice, evidence or support to a person who has a matter before the Panel or in
proceedings before other bodies (e.g. a sporting tribunal).
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Statute of Limitations
The limitation period currently prescribed in the NAD scheme for commencing an action
against an athlete or athlete support person for a possible anti-doping rule violation is eight
years. This reflects Article 17 of the World Anti-Doping Code.
Generally, the statute of limitations with regard to civil proceedings varies in each state and
territory, with the limit set usually between three and six years. For the avoidance of doubt,
the Bill confirms that the eight year limitation period that is required to be prescribed in the
NAD scheme will prevail over a law of a state or territory to the extent of any inconsistency.
The Bill will commence on a date to be fixed by Proclamation.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights has been prepared and is attached.
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.
Financial Impact Statement
There is no financial impact associated with this Bill.
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AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT BILL 2013
NOTES ON CLAUSES
Clause 1: Short title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. Sections 1 to 3 of the Bill will commence on the date that the Bill receives the Royal
Assent. Schedules 1 to 3 of the Bill will commence on a day to be fixed by
Proclamation. If the provisions have not commenced within six months of receiving
royal assent, they will commence on the day after the end of the six month period.
Clause 3: Schedule(s)
3. This clause gives effect to the Schedules to the Bill by providing that each Act
specified in the Schedules is amended or repealed as set out in the items of the
Schedules. Any other item in the Schedules has effect according to its terms.
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Schedule 1 - Disclosure notices
Australian Sports Anti-Doping Authority Act 2006
Item 1: Section 4
4. This item inserts a signpost to the definition of ,,civil penalty order in new subsection
73B(4). A civil penalty order is an order for a person to pay the Commonwealth a
pecuniary penalty for contravening a civil penalty provision under the Bill.
Item 2: Section 4
5. This item inserts a signpost to the definition of ,,civil penalty provision in new section
73A. A ,,civil penalty provision is a provision within the ASADA Act which
contains a pecuniary penalty amount, indicated by the words ,,Civil Penalty and
followed by the number of penalty units.
Item 3: Section 4
6. This definition confirms that an ,,act or ,,failure to act constitutes conduct for the
purposes of the Act.
Item 4: Section 4
7. This item inserts a signpost to the definition of ,,disclosure notice in new
subsection 13A(1). A disclosure notice is the notice that can be issued by the CEO, or
the CEOs delegate, requiring a person to provide information which will assist in an
investigation into possible anti-doping rule violations by an athlete or athlete support
person.
Item 5: Section 4
8. This item amends section 4 of the Act to insert the definition of ,,evidential burden.
The definition provides that an ,,evidential burden in relation to a matter means the
burden of adducing or pointing to evidence that suggests a reasonable possibility that
the matter exists or does not exist. Under the provisions of this Bill, a person may be
asked to provide information, documents, materials or things which will assist
ASADA in its investigations.
Item 6: Section 4
9. This definition confirms that a ,,relevant court is the Federal Court of Australia, the
Federal Circuit Court of Australia or a State or Territory Court with the appropriate
jurisdiction to hear matters arising under this Act.
Item 7: After paragraph 13(1)(e)
10. Section 13 of the Act specifies what the NAD scheme must contain. New paragraph
13(1)(ea) provides the authority for the NAD scheme to authorise the CEO to request
a specified person to attend an interview, give information and/or produce documents
or things. However, the CEO must have a reasonable belief that the person has
information, documents or things that may be relevant to the administration of the
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NAD scheme (for example, material that is relevant to pursuing an anti-doping rule
violation against an athlete).
11. A specified person can be any person, not just an athlete or athlete support person,
who has information that can assist in an anti-doping investigation. This amendment
recognises that people outside the jurisdiction of Australias anti-doping regime may
have information that would assist in establishing an anti-doping rule violation by an
athlete or athlete support person.
Item 8: Paragraph 13(1)(g)
12. New paragraph 13(1)(g) removes any doubt that the CEO is permitted to disseminate
any material obtained as a result of the issuing of a disclosure notice to other
organisations, in accordance with the Act and the regulations.
Item 9: After section 13
New section 13A - Power to require information or documents to be given
13. This new section provides the authority for the NAD scheme to establish a disclosure
notice scheme. This is consistent with the legislative structure of the ASADA Act,
whereby the Act provides the authority for the NAD scheme to specify the detail of
particular matters.
14. New subsection 13A(1) requires the NAD scheme to authorise the CEO to issue a
disclosure notice to a person of interest requiring that person to attend an interview,
give information or provide information, documents or things.
15. New subsection 13A(1A) requires that, before issuing a disclosure notice, the CEO
must have a reasonable belief that the person has information relevant to the
administration of the NAD scheme. To ensure the CEO does not have unfettered
power to issue a disclosure note, the CEO must obtain the written agreement of three
members of the Anti-Doping Rule Violation Panel (the Panel) that this belief is
reasonable before a disclosure notice can be issued.
16. New subsection 13A(1A) also sets out the circumstances in which a registered
medical practitioner may be issued with a disclosure notice. The new powers only
enable ASADA to seek information documents or things from medical professionals
where the CEO has a reasonable belief that the medical professional is involved in the
commission or attempted commission of an anti-doping rule violation. Again, the
CEOs reasonable belief must be tested with the Panel.
17. New subsection 13A(2) authorises the NAD scheme to make provision in relation to
matters such as how interviews are to be conducted and how information, documents,
materials and things may be provided by a person to whom a disclosure notice has
been issued.
18. Given that the NAD scheme is specified in the regulations, the other requirements on
the ASADA CEO when issuing a disclosure notice are to be specified in the
regulations. This includes requirements around the manner in which a disclosure
notice is to be issued, the form and content of the disclosure notice, the conduct of
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interviews and allowing up to a 14 day response period by recipients to a disclosure
notice.
19. This new section also provides that a person who is issued with a disclosure notice has
the right to be informed of the possible consequences should they fail to meet the
requirements of a Disclosure Notice.
New section 13B - CEO may retain and copy documents etc
20. This new section provides the authority for the CEO to take and retain possession of
a document or thing for as long as is necessary and copy documents that are provided
in response to a disclosure notice. Where the CEO has taken possession of a
document or thing, the person who provides the document or thing will still be able
to inspect or view the document or thing if they need to.
New section 13C - Failure to comply with disclosure notice
21. New subsection 13C(1) specifies that a person contravenes the subsection if the
person fails to provide the information, documents or things requested in a disclosure
notice within the period specified in the notice. The subsection provides that the civil
penalty for the contravention is 30 penalty units. A penalty unit has the meaning in
section 4AA of the Crimes Act 1914.
22. New subsection 13C(2) provides that, if a person can demonstrate that they do not
possess the information or have not been able to obtain the information requested in
the disclosure notice, the person will be deemed not to have contravened the Act.
New section 73R has the effect that the person who was the subject of the disclosure
notice is required to establish that he or she does not in fact possess the information,
document or thing specified in the notice, or that the person has been unable to obtain
the information, document or thing.
23. This requirement would be satisfied if the individual provides the CEO with a signed
statutory declaration. Penalties exist under the Criminal Code if someone lies to
ASADA.
24. New subsection 13C(3) provides that a person contravenes the subsection where the
person is required by a disclosure notice to attend an interview to answer questions
and fails to comply with the notice. The civil penalty for the contravention is 30
penalty units.
25. New subsection 13C(4) provides that a person contravenes the subsection where the
person is required by a disclosure notice to attend an interview to answer questions
and the persons refuses or fails to answer the question. The civil penalty for the
contravention is 30 penalty units.
New section 13D - Self-incrimination
26. The primary intent of this Bill is to assist ASADA in its investigations into possible
anti-doping rule violations but not to expose individuals to other civil or criminal
proceedings.
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27. New subsection 13D(1) protects privilege against self-incrimination by asserting that
an individual can elect not to comply with a requirement to answer a question or to
give information if the answer to the question might incriminate the individual or
expose them to a penalty.
28. New subsection 13D(1A) makes it clear that the right not to self-incriminate does not
apply to the individual producing a document or thing, as required by a disclosure
notice given to the person.
29. However, new subsection 13D(2) ensures that a document or things obtained by
ASADA, the producing of the document or thing; or any information, document or
thing obtained as a direct or indirect consequence of producing the document or thing
is inadmissible as evidence against the person in criminal proceedings (except an
offence against section 137.1 (false or misleading information) or 137.2 (false or
misleading documents) of the Criminal Code.
30. Documents or things provided in response to a disclosure notice will also be
inadmissible as evidence against the person in civil proceedings unless the
proceedings are under, or arising out of, the ASADA Act or regulations.
Item 10: After paragraph 14(2)(a)
31. Section 14 of the ASADA Act sets out the rights of athletes and athlete support
persons. New paragraphs 14(2)(aa),14(2)(ab) and 14(2)(ac) ensure that the rights of
athletes and athlete support persons in relation to the amendments proposed in the Bill
are maintained. The new provisions will ensure that the NAD scheme must specify
that athletes and athlete support persons who have been issued with a disclosure
notice have the right to be notified, orally or in writing, of the possible consequences
of failing to comply with a request by the CEO to attend an interview to answer
questions or to provide information, documents or things.
Item 11: Subsection 24(N)(1)
Item 12: After subsection 24N(3)
32. Section 24N of the Act enables the CEO to delegate all of their functions and powers
to other persons including ASADA staff and other Commonwealth employees who
may be engaged to assist the CEO from time to time. The amendment proposed by
item 11 provides that this general power of delegation does not apply to the power to
give a disclosure notice. The amendment proposed by item 12 ensures that the power
to issue a disclosure notice can only be delegated by the CEO to an ASADA staff
member who is an SES or acting SES employee. This recognises the significance of
the decision to give a disclosure notice.
Item 13: After Part 8
Part 8A - Civil penalty orders
33. As the Bill introduces civil penalties for the contravention of the requirements of
disclosure notices, this new section of the Act sets out the mechanisms for enforcing
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the civil penalty provisions. These provisions substantially reflect the provisions of
Part 4 of the Regulatory Powers (Standard Provisions) Bill 2012.
New section 73A - Civil penalty provisions
34. New section 73A describes which provisions are civil penalty provisions. These
provisions are enforceable by civil penalty orders.
New section 73B - Civil penalty orders
35. New subsection 73B(1) provides that the CEO may apply to a relevant court for an
order seeking a monetary penalty where a person is alleged to have contravened a
civil penalty provision. An application for an order must be made within four years of
the alleged contravention (new subsection 73B(2)).
36. If the relevant court is satisfied that the person has contravened the civil penalty
provision, the court can order that person to pay a monetary penalty as the court
considers appropriate (new subsection 73B(3)). This order is called a civil penalty
order (new subsection 73B(4)).
37. New subsection 73B(5) provides for the maximum monetary penalty that a court can
order a person (or body corporate) to pay. In the case of a body corporate, this
amount is five times the penalty specified in the civil penalty provision. Otherwise,
the maximum penalty is the amount specified in the civil penalty provision.
38. New subsection 73B(6) sets out the matters that the court must take into account in
determining this amount. This allows the court to consider the nature and extent of the
contraventions, any of damage or loss suffered as a result of the contravention and
circumstances in which the contravention took place.
New section 73C - Civil enforcement of penalty
39. New section 73C provides that a monetary penalty is a debt payable to the
Commonwealth and can be recovered by the Commonwealth as if it is a judgement
debt against that person. A judgement debt is the amount that is awarded to be paid
under a court order and can be enforced against the person who owes the money. The
debt is enforceable through civil debt proceedings and payable into consolidated
revenue.
40. This clause is necessary to ensure that the Commonwealth can take action to recover
the amount of monetary penalty ordered by the court under a civil penalty order.
New section 73D - Conduct contravening more than one civil penalty provision
41. New section 73D provides that where conduct constitutes a contravention of more
than one civil penalty provision, proceedings may be instituted against a person for
any one or more of those provisions. This clause also provides that a person is not
liable to more than one monetary penalty for the same conduct.
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New section 73E - Multiple contraventions
42. New section 73E allows a relevant court to make a single civil penalty order against a
person for multiple contraventions of a civil penalty provision if proceedings are
founded on the same facts; or if the contraventions form, or are part of, a series of
contraventions of the same or a similar character. The ability to make a single civil
penalty order in respect of multiple contraventions is intended to minimise court
administration and consolidate legal proceedings.
43. The maximum penalty that the court can order in this case cannot exceed the amount
that could be ordered if each penalty was ordered separately for each contravention.
New section 73F - Proceedings may be heard together
44. New section 73F allows the relevant court to direct that two or more proceedings for
civil penalty orders are heard together.
45. These clauses allow multiple contraventions to be dealt with in an appropriate way by
the relevant court by hearing several matters together, without disadvantaging the
person who is accused of contravening the provisions.
New section 73G - Civil evidence and procedure rules for civil penalty orders
46. New section 73G provides that during proceedings for a civil penalty order, the
relevant court must apply the rules of evidence and procedure for civil matters. This
ensures that criminal rules of evidence and procedure are not applied to proceedings
for civil penalty orders.
New section 73H - Civil proceedings after criminal proceedings
47. New section 73H provides that a relevant court may not make a civil penalty order for
a contravention under this Act if the person has been convicted of an offence or is
found to have contravened a civil penalty provision under the law of the
Commonwealth, a State or a Territory for conduct that is the same or substantially the
same as the conduct constituting the contravention.
New section 73J - Criminal proceedings during civil proceedings
48. New section 73J stays civil proceedings if criminal proceedings exist and relate to the
same conduct, to prevent information that arises during the criminal proceedings
prejudicing the civil proceedings. If the criminal proceedings result in a conviction,
new subsection 73J(2) will ensure that civil proceedings related to the same conduct
are dismissed and costs for the civil proceedings are not awarded.
New section 73K - Criminal proceedings after civil proceedings
49. New section 73K clarifies that criminal proceedings may commence after civil
proceedings, regardless of whether civil proceedings result in a civil penalty order.
This recognises the importance of criminal proceedings and criminal penalties in
dissuading and sanctioning contraventions of the Act and ensures that criminal
remedies are not precluded by earlier civil action.
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50. For example, if a law enforcement agency is able to collect evidence through means
other than that collected by ASADA through the issuing of a disclosure notice, then a
criminal matter can proceed.
New section 73L - Evidence given in civil proceedings not admissible in criminal
proceedings
51. New section 73L prevents the use of evidence of information given, or evidence of
production of documents, by a person in criminal proceedings under a law of the
Commonwealth if:
the person previously gave the evidence in proceedings for a civil penalty order
(whether or not the order was actually made), or
the conduct is the same or substantially the same as the conduct alleged to
constitute the contravention.
52. The clause does not apply to criminal proceedings which arise in relation to false
evidence given by the person in the proceedings for the civil penalty order. This
ensures that the evidence elicited during civil proceedings cannot be used to build a
criminal prosecution against a person for the same or similar conduct.
New section 73M - Ancillary contravention of civil penalty provisions
53. New section 73M sets out circumstances where a person is taken to have contravened
a civil penalty provision. The circumstances are:
attempting to contravene a provision
aiding, abetting, counselling or procuring the contravention of a provision
inducing the contravention of a provision (for example, by threatening or
promising to another person)
in any way being directly or indirectly, knowingly or party to the contravention of
a provision, and
conspiring with others to contravene a provision.
54. This ensures that these types of conduct can also give rise to a civil penalty order.
New section 73N - Continuing contraventions of civil penalty provisions
55. New section 73N provides that where the failure to do an act or thing constitutes a
contravention of a civil penalty provision, then the person commits a separate
contravention for each day that the person fails to do the act or thing. This is the case
even on the day of and any day after a civil penalty order is made. For example, if a
person is given a direction to comply with a disclosure notice by a particular date, and
fails to do so, then this person may be contravening a civil penalty provision. The
person would continue to contravene this civil penalty provision until the person
complied with the disclosure notice, and would be liable for a contravention for each
day until the person complied was taken.
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New section 73P- State of mind
56. New section 73P provides that it is not necessary to prove the state of mind of a
person during proceedings for a civil penalty order against a person for a
contravention of a civil penalty provision (that is, the persons intention or knowledge
or other fault elements). This principle applies only to contraventions of civil penalty
provisions, not for ancillary contravention of civil penalty provisions.
New section 73Q - Mistake of fact
57. New section 73Q provides that an exception of mistake of fact may be available for
contravention of a civil penalty provision if the items in this provision are made out.
This is significant because of new section 73M stating that, in civil penalty
proceedings, it is unnecessary to prove intention, knowledge or other fault elements.
This has an effect on civil proceedings similar to the effect strict liability has on
criminal proceedings. To ensure that new section 73M does not result in liability for
simple errors of fact, new section 73Q provides a `defence' to civil penalty
proceedings on the grounds that a person`s conduct was the result of a considered but
reasonable error of fact.
58. The person who asserts that a particular course of action resulted from a mistake of
fact has the burden of proving the matter. This is appropriate in the circumstances as
this type of knowledge (that is, that a person considered particular facts) is within the
knowledge of the person and forms an exception to a contravention that would
otherwise result in a civil penalty order being made.
New section 73R - Exceptions etc. to civil penalty provisions--burden of proof
59. New section 73R provides that in proceedings against a person for a contravention of
a civil penalty provision, the defendant bears an evidential burden in relation to any
exception, exemption, excuse, qualification or justification provided by the Act. That
is, the person must adduce evidence which points to the fact that he or she was
authorised to perform the actions which would otherwise constitute a contravention of
the civil penalty provision. It will then be up to the Commonwealth to establish that
this exception does not apply. This is appropriate because a defendant will have the
requisite knowledge for these exceptions.
New section 73S - Civil penalty provisions contravened by employees, agents or officers
60. This section provides that a body corporate is responsible for the actions of an
employee acting within the actual or apparent scope of their employment, or the
actions of an agent or officer acting within the actual or apparent scope of their
authority.
Item 14: After subsection 74(1)
61. Under the Act, as soon as practicable after the end of each financial year, the CEO is
required to prepare a report of the CEOs operations during the financial year (the
Annual Report). The CEO will be required to include in the Annual Report:
the number of disclosure notices given in the financial year; and
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the number of proceedings for contraventions of section 13C (failure to comply
with disclosure notice) that were commenced or concluded in the financial year;
and
the number of proceedings concluded in the financial year in which a person was
ordered to pay a civil penalty for contravening section 13C.
Item 15: At the end of Part 9
New section 80 - Infringement notices for civil penalty provisions
62. The Guide to Framing Commonwealth Offences recognises that an infringement
notice scheme can be included in Regulations so long as the primary legislation
includes the appropriate regulation-making power providing for this.
63. New section 80 provides that the regulations may provide for a person who is alleged
to have contravened a civil penalty provision to pay a penalty to the Commonwealth
as an alternative to civil proceedings, with the penalty not to exceed one-fifth of the
maximum penalty that a court could impose on a person for a contravention of a
provision.
64. An infringement notice is a notice of a pecuniary penalty imposed on a person by
statute setting out particulars of an alleged contravention. It gives the person to whom
the notice is issued the option of either paying the penalty set out in the notice or
electing to have the matter dealt with by a court. The operation of an infringement
notice scheme provides the CEO with some flexibility to promptly manage matters
that involve non-compliance.
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SCHEDULE 2 - INFORMATION SHARING
Australian Postal Corporation Act 1989
Item 1: At the end of section 90J
65. Section 90J of the Australian Postal Corporation Act 1989 sets out the permitted uses
or disclosures of information and documents regardless of whether the information or
documents are protected. This amendment will enable Australia Post to provide
information or documents to the CEO as long as the information or document is for
the purposes of the administration of the NAD scheme.
66. Despite this amendment, ASADA will not be able to intercept or examine the contents
of any mail items.
Australian Sports Anti-Doping Authority Act 2006
Item 2: Paragraph 68(1)(d)
Item 3: After subsection 68(5)
67. Under section 68 of the Act, ASADA may share protected Customs information with
sporting administration bodies (including sporting organisations, other anti-doping
organisations) for permitted anti-doping purposes, namely building the case to issue a
sanction against an athlete or athlete support person for breaching anti-doping rules.
Subsections 68(2) and 68(5) require the CEO to give written notice to the person to
whom the information relates if in fact ASADA decides to provide information to the
sporting administration body.
68. However, there are circumstances where notifying the person of interest in accordance
with these requirements could prejudice a current investigation into an anti-doping
rule violation. These items provide an exception to the rules in subsection 68(2) to (5)
where the CEO is satisfied that compliance with these requirements is likely to
prejudice a current investigation into a possible violation of the anti-doping rules.
Item 3A: Before subsection 74(2)
69. The new subsection 74(1B) compels the CEO to report in ASADAs Annual Report
the number of times the CEO has exercised their discretion not to disclose to a person
that protected customs information relating to that person has been passed to relevant
sporting administration bodies.
Item 4: Application of amendments
70. Sub-item 4(1) ensures that information obtained by Australia Post before the
commencement of the amendment proposed by item 1 can be disclosed to the CEO
after that commencement.
71. Sub-item 4(2) provides that the amendments proposed by items 2 and 3 apply to
disclosures of information made after the commencement, irrespective of when the
investigation to which the information relates commenced.
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SCHEDULE 3 - OTHER AMENDMENTS
Australian Sports Anti-Doping Authority Act 2006
Item 1: Section 4 (definition of anti-doping rules)
72. This definition provides that anti-doping rules have the meaning given by the NAD
Scheme (the regulations). Clause 2.01 of the NAD scheme specifies the
circumstances and conduct that constitute breaches of the anti-doping rules, or
anti-doping rule violations.
Item 2: Section 4
73. This definition provides that finding has the meaning given by the NAD scheme, that
is, a finding is a finding by the Anti-Doping Rule Violation Panel (the Panel) that:
(a) there is an adverse analytical finding; or
(b) it is possible that an athlete or support person has committed a non-presence
anti-doping rule violation.
Item 2A: Section 5(1A)
74. There is a consequential change to the definition of vacancy in subsection 5(1A) of
the ASADA Act as a result of increasing the membership of the Panel from seven to
nine. The increase in membership will assist to alleviate the additional workload that
will be placed on members as a result of requiring that three members of the Panel
agree in writing prior to the CEO issuing a disclosure notice to a person.
Item 3: Paragraph 13(1)(b)
75. This is a technical amendment to reflect the fact that the anti-doping rules can only
apply to athletes and support persons.
Item 4: Paragraph 13(1)(h)
76. This clause clarifies that the NAD scheme may authorise the Panel to make findings
relating to investigations by the CEO of possible anti-doping rule violations.
Item 5: Paragraph 13(1)(ha)
Item 6: Paragraph 13(1)(j)
Item 7: Subparagraph 13(1)(k)(ii)
77. Repealing paragraph 13(1)(ha) confines the operation of the Panel to only making
findings into whether a possible anti-doping rule violation has been committed. The
Panel will no longer be expected to make recommendations to the relevant sport
tribunal as to the consequences of its findings.
78. It has been found in the past that, in making recommendations to the relevant sport
tribunal regarding consequences, the Panel did not always have access to important
information that may have affected its recommendation. Athletes and athlete support
16
persons have preferred to withhold such evidence until the hearing arranged by the
sporting body.
79. The management of possible anti-doping rule violations will consist of two stages.
The Panel will consider evidence of a possible anti-doping rule violation provided to
it and determine whether a possible anti-doping rule violation has been committed.
The Panels findings are then passed to the sporting body that will confirm or not
confirm the violation and issue the appropriate sanction, in accordance with its
anti-doping policies.
80. To still provide the sporting organisation with assistance when considering possible
anti-doping rule violations, Paragraphs 13(1)(j) and (1)(k)(ii) will provide for the
NAD scheme to authorise the CEO to engage with the sports directly, based on
providing information relevant to the particular case.
Item 8: At the end of section 13
81. Consistent with the World Anti-Doping Code, the limitation period prescribed in the
NAD scheme for commencing an action against an athlete of athlete support person
for a possible breach of anti-doping rules is eight years.
82. The new sub-section 13(4) removes doubt that the limitation provision prescribed in
the regulations prevails over a law of a State or Territory to the extent of any
inconsistency.
Item 9: At the end of section 41
83. Article 8 of the World Anti-Doping Code states that each anti-doping organisation
with results management responsibility shall provide a hearing process for persons
alleged to have committed an anti-doping rule violation.
84. This clause clarifies that the Panel is not a hearing body, as is described under
Article 8 of the World Anti-Doping Code. Under the NAD scheme, each national
sporting body is the decision maker on possible anti-doping rule violations.
Item 9A: At the end of section 42
85. The maximum number of members on the Panel is increased from seven to nine. This
will assist to alleviate the additional workload that will be placed on members as a
result of requiring that three members of the Panel agree in writing prior to the CEO
issuing a disclosure notice to a person.
Item 10: Subsection 43(3)
86. Subsection 43(3) is amended to confirm that a member of the Australian Sports Drug
Medical Advisory Committee (ASDMAC) cannot, at the same time, be a member of
the Panel.
Item 11: Section 50
87. Section 50 is updated to restrict members of the Panel from liaising with others
outside of the Panel on matters under the NAD scheme.
17
88. A Panel member cannot take part in any deliberations or decisions of a sporting
administration body in relation to a matter relating to, or arising under, the NAD
scheme without first receiving written consent from the CEO.
89. A Panel member, without the prior written consent of the CEO, cannot provide
information, advice or support to a person nor can they provide evidence or
information on behalf of a person in relation to a matter under the NAD scheme.
Item 12: Subsection 54(2)
90. Subsection 54(2) is amended to confirm that a member of the Panel cannot at the
same time be a member of the ASDMAC.
Item 13: Section 60
91. Section 60 is updated to restrict members of the ASDMAC from liaising with others
outside of the Committee on matters under the NAD scheme.
92. A Committee member cannot take part in any deliberations or decisions of a sporting
administration body in relation to a matter relating to, or arising under, the NAD
scheme without first receiving written consent from the CEO.
93. A Committee member, written the prior written consent of the CEO, cannot provide
information, advice or support to a person nor can they provide evidence or
information on behalf of a person in relation to a matter under the NAD scheme.
Item 14: Application of amendments
94. With respect to the amendment to sub-section 43(3), after the date of commencement,
a person appointed to the Panel cannot be a member of the ASDMAC as well.
Similarly, under sub-section 54(2), after the date of commencement, appointees to
ASDMAC cannot also be a member of the Panel.
95. The amendment to Section 50 applies to all members of Panel after the
commencement date, regardless of when the member was appointed.
96. The amendment to Section 60 applies to all members of the ASDMAC after the
commencement date, regardless of when the member was appointed.
Item 15: Validation of ADRVP's findings
97. Any findings or recommendations made by Panel remain valid after the Bill
commences.
Item 16: Transitional regulations
98. The Governor General is able to make regulations to deal with matters arising from
the amendments. Regulations are able to take effect before the regulations are
registered under the Legislative Instruments Act 2003.
18
Attachment
Statement of Compatibility with Human Rights
Australian Sports Anti-Doping Authority Amendment Bill 2013
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 Governments anti-doping arrangements give effect to Australias
international obligations under the UNESCO International Convention Against Doping in
Sport (the UNESCO Convention). Chiefly, the UNESCO Convention requires States Parties
to implement arrangements that are consistent with the principles of the World Anti-Doping
Code (the Code).
The Australian Sports Anti-Doping Authority (ASADA) is the Australian Government
agency responsible for protecting Australias sporting integrity through the elimination of
doping and the implementation of the Code in Australia. ASADAs powers and functions are
specified under the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act) and the
Australian Sports Anti-Doping Authority Regulations 2006 (ASADA regulations), including
the National Anti-Doping (NAD) Scheme. The NAD scheme underpins ASADAs
implementation of a co-ordinated Code-compliant anti-doping program encompassing
deterrence, detection and the management of cases involving possible breaches of anti-doping
rules.
As a condition of receiving Australian Government funding, Australias national sporting
organisations (NSOs) are required to have in place an anti-doping policy that complies with
the Code as well as acknowledging ASADAs powers and functions under the ASADA Act
and NAD scheme. All NSO anti-doping policies replicate the essential parts of the Code,
such as the eight actions that constitute an anti-doping rule violation.
The NSOs are ultimately responsible for imposing penalties for doping. Penalties (sanctions)
for doping offences involve bans from sport for a certain period.
Anti-doping authorities have historically focused on the testing of samples (urine and blood)
to detect the presence of prohibited substances in an athletes body. However, a number of
anti-doping rule violations cannot be detected through testing but, rather, require the
collection of information/evidence.
Given this, the advances in doping practices and the emergence of sophisticated and systemic
doping programs, the approach to detecting doping is changing from one being based solely
on the identification of prohibited substances and methods through testing to developing the
capacity to undertake non-analytical detection programs (investigations and intelligence
gathering).
ASADA has the authority to undertake investigations into possible doping offences.
However, ASADAs powers have been limited. In his review of Australian cycling, the Hon
James Wood AO QC identified that ASADAs inability to compel someone to attend an
interview or produce information / documents potentially limits the capacity of ASADA to
i
investigate allegations or suspicions of doping. This was a deficiency that needed to be
addressed.
The main purpose of the Bill is to give the CEO a power, subject to appropriate protections,
to compel persons to attend an interview with an investigator nominated by the CEO and to
produce information and documents or things relevant to the administration of the NAD
scheme. Importantly, under this Bill, the CEO has not been given any powers relating to
search and seizure; or surveillance.
The Bill will also amend the Australian Postal Corporation Act 1989 to allow Australia Post
to share information with ASADA. ASADA has benefitted from information sharing
arrangements with other Government agencies such as the Australian Customs and Border
Protection Service. Establishing an information sharing arrangement with Australia Post will
further enhance ASADAs investigative capacity.
The Bill also makes a number of minor amendments aimed improving the operational
effectiveness of Australias anti-doping arrangements.
Human Rights Implications
List of rights engaged:
Article 15 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) - right to enjoy and benefit from culture
Article 17 of the International Covenant on Civil and Political Rights (ICCPR) - right
to protection from arbitrary interferences with privacy
Article 14(3) of the ICCPR - right to be free from self-incrimination
Article 14(2) of the ICCPR - right to the presumption of innocence
Right to enjoy and benefit from culture
Article 15 of ICESCR protects the right of all persons to take part in cultural life and to enjoy
the benefits of scientific progress and its applications. The United Nations Committee on
Economic, Social and Cultural Rights (General Comment 21, 2009) has stated that culture
encompasses:
"ways of life, language, oral and written literature, music and song, non-verbal
communication, religion or belief systems, rites and ceremonies, sport and games,
methods of production or technology, natural and man-made environments, food,
clothing and shelter and the arts, customs and traditions."
This Bill promotes the right to enjoy culture under Article 15 of the ICESCR by protecting
the integrity of sport in Australia. The Bill aims to protect the rights of the vast majority of
Australians who want to participate in sport, both nationally and internationally that is free of
doping. It aims to protect those important life values that sport promote such as fair play,
teamwork, dedication and friendship.
People make choices as to whether they compete fairly or whether they involve themselves in
doping. Gaining a competitive advantage in a sporting contest through unfair means, such as
doping, significantly undermines the legitimate enjoyment that many Australians gain from
competing in and watching competitive sport. Should Australians lose the belief that sporting
contests in this country take place on a level playing field, there is a serious risk that this
enjoyment will be significantly eroded.
ii
Right to protection from arbitrary interference with privacy
Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individuals
privacy, family, home or correspondence, and protects a persons honour and reputation from
unlawful attacks. This right may be subject to permissible limitations where those limitations
are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they
must seek to achieve a legitimate objective and be reasonable, necessary and proportionate to
this purpose.
The introduction of paragraph 13(1)(ea) provides the NAD scheme to give the CEO the
power to request a person to attend an interview, give information or produce documents or
things if the CEO reasonably believes that the person has information, documents or things
that may be relevant to the administration of the NAD scheme. The new Section 13A
provides that the NAD scheme must authorise the CEO to give a person a written notice
(disclosure notice) requiring the person to do the above.
The Bill provides for the amendment of paragraph 13(1)(g) to allow the NAD scheme to
authorise the CEO to disclose information, documents or things obtained in relation to the
administration of the NAD scheme (including information obtained during investigations of
possible violations of the anti-doping rules) for the purposes of, or in connection with, that
administration.
The Bill also provides that the CEO will be able to issue a disclosure notice to any person
(not just athletes and their support persons) where they are satisfied that the person has
information relevant to the administration of the NAD scheme. This provision recognises
that people outside the jurisdiction of Australias anti-doping regime may have information
that would assist in establishing anti-doping rule violations by athletes or support personnel.
If the person issued with a disclosure notice is not an athlete or support person, they would
only be subject to penalty if they failed to cooperate with ASADA. They could not be found
to have breached anti-doping rules.
These clauses are reasonable, necessary and proportionate to the legitimate aim of catching
doping cheats. Doping is potentially injurious to the persons health, may distort the outcome
of sporting contests and over time undermine the overall integrity of sport. These measures
are necessary as the detection of doping is becoming increasingly reliant on effective
non-analytical investigations. Yet, ASADA has found that people with information that may
assist in establishing an anti-doping rule violation against an athlete or athlete support person,
currently refuse to cooperate with the ASADA investigators. Accordingly, the CEO needs a
broad power to require people to produce this information.
The ASADA CEO has previously noted that in the twelve months to March 2013, in 45 per
cent of the cases where ASADA asked someone for an interview, the person was either not
present, refused an interview or was not prepared to be interviewed after ASADA
investigators had arrived.
While the CEO is provided with this authority, the Bill also includes provisions that aim to
protect a persons rights in relation to the issuing of a disclosure notice:
The CEO may only issue a disclosure notice if the CEO reasonably believes that the
person has information that may be relevant to the administration of the NAD scheme.
The CEO will not be able to arbitrarily request or compel a person to be interviewed or
iii
produce documents or things based on a hunch or vague suspicion. The CEOs
reasonable belief must stem from and be supported by the intelligence gathered by
ASADA in the administration of the NAD scheme.
This justification must be in writing.
Furthermore, at least three members of the Anti-Doping Rule Violation Panel (the
Panel) must agree in writing that the CEOs belief is reasonable, prior to the CEO
issuing a disclosure notice.
The Panel is a separate body established under the ASADA Act for the purpose of
reviewing the information provided to it by ASADA to determine whether or not it is
possible that an anti-doping rule violation has occurred. As part of this process, the
Panel assures itself that ASADA has followed procedures established in the relevant
regulations in bringing a case forward. Under the Bill, the Panel will be tasked to
review information provided by the CEO to assess whether the CEO has a reasonable
belief for issuing a disclosure notice.
Section 14 of the ASADA Act will be amended so that an athlete has a right to be
notified orally, or in writing, of the possible consequences of a failure to comply with a
request by the CEO.
Section 71 of the ASADA Act already provides for the protection of NAD scheme
personal information while Section 73 preserves the operation of the Privacy Act 1988.
More generally, decisions taken by the ASADA CEO, including the decision to issue a
disclosure notice, are also captured by the Administrative Decisions Judicial Review
Act 1977.
Amendments to the ASADA regulations following passage of these legislative amendments
will provide further protections around the issuing of a disclosure notice such as specifying
what information must be included in a disclosure note.
The Bill will also amend the Australian Postal Corporation Act 1989 to insert new subsection
90J(12), allowing for the disclosure of information by Australia Post employees to the CEO
of ASADA for the purposes of the administration of the NAD scheme. Under this
amendment, Australia Post will have discretion on what information may be shared with the
CEO; however, it must be for the purposes of the administration of the NAD scheme.
ASADA will not be able to intercept or examine the contents of any mail items.
Currently under the ASADA Act, the CEO is required to give written notice of the proposed
disclosure of protected information from the Australian Customs and Border Protection
Service to a specified sporting body, to the person to whom the information relates and invite
the person to make a written submission about the proposed disclosure.
As this provision has impeded the conduct and timing of investigations in the past, the Bill
would provide the CEO with the option of not disclosing protected Customs information to
the person if they are satisfied that such a disclosure would prejudice a current investigation.
To provide transparency, the CEO will be required to report in the ASADA Annual Report on
the number of occasions that protected Customs information is disclosed to a sporting
administration body without first giving written notice to the person or persons to whom it
relates.
Right to be free from self-incrimination
Article 14(3)(g) of the ICCPR protects the right to be free from self-incrimination in that a
person may not be compelled to testify against him or herself or confess guilt. The privilege
iv
against self-incrimination may be subject to permissible limits. Any limitations must be for a
legitimate objective, and be reasonable, necessary and proportionate to that objective.
Under of the Bill, an individual can elect not to comply with a requirement to answer a
question at interview or to give information if the answer to the question might incriminate
the individual or expose them to a penalty.
The right not to self-incriminate does not extend to an individual producing a document or
thing, as required by a disclosure notice given to the person. As it does not have search and
seizure powers, this provision is important in enhancing ASADA investigations capacity.
In any case, a document or things obtained by ASADA, the producing of the document or
thing; or any information, document or thing obtained as a direct or indirect consequence of
producing the document or thing will be inadmissible as evidence against the person in
criminal proceedings (except an offence against section 137.1 (false or misleading
information) or 137.2 (false or misleading documents) of the Criminal Code).
The information obtained from a document or thing provided in response to a disclosure
notice will also be inadmissible as evidence against the person in any other proceedings that
would expose the individual to a penalty, other than proceedings under, or arising out of, the
ASADA Act or regulations. This includes any proceedings before a sporting administration
body, the Court of Arbitration for Sport or other tribunals that relate to sports doping and
safety matters.
Right to the presumption of innocence
Article 14(2) of the ICCPR states that everyone charged with a criminal offence shall have
the right to be presumed innocent until proven guilty according to law. The right to
presumption of innocence is also a fundamental common law principle.
Laws which shift the burden of proof to the defendant can be considered a limitation of the
presumption of innocence. This is because a defendants failure to discharge a burden of
proof or prove an absence of fault may permit their conviction despite reasonable doubt as to
their guilt. This includes where an evidential or legal burden of proof is placed on a
defendant.
A Bill may operate to limit the right to be presumed innocent through imposing an evidential
burden on the defendant in relation to a range of matters. When a defendant bears an
evidential burden in relation to an exception, it means that the defendant bears the burden of
adducing or pointing to evidence that suggests a reasonable possibility that the exception is
made out. If this is done, the prosecution must refute the exception beyond reasonable doubt.
Under the Bill, and in accordance with the World Anti-Doping Code (the Code), the burden
of proof for establishing an anti-doping rule violation remains with ASADA. The Code
states that:
The A nti-Doping Organisation shall have the burden of establishing that an anti-doping
rule violation has occurred. The standard of proof shall be whether the A nti-Doping
Organisation has established an anti-doping rule violation to the comfortable satisfaction of
the hearing panel bearing in mind the seriousness of the allegation which is made. This
standard of proof in all cases is greater than a mere balance of probability but less than proof
beyond a reasonable doubt.
The Code operates under the principle of strict liability. Under the strict liability principle, an
athlete is responsible, and an anti-doping rule violation occurs, whenever a prohibited
substance is found in an athletes sample.
v
For the other seven violations specified in the Code, which are established by non-analytical
means (i.e. other than a drug test), ASADA is required to establish intent on the behalf of the
athlete or support person in order to demonstrate that an anti-doping rule violation has
occurred.
The only area where the evidential burden would be shifted is in relation to the production of
information, document or thing requested through a disclosure notice. A person who has
been asked to provide information, documents or things in a disclosure notice, and claims not
to have them, will bear an evidential burden to demonstrate that they dont have the materials
requested.
It is appropriate for the burden of proof to be placed on a defendant in this case as it will be
within the knowledge of the person as to whether they have what is being requested.
Imposing the burden of proof on ASADA would be extremely difficult or expensive whereas
it could be readily and cheaply provided by the recipient of the disclosure note.
In any case, new subsection 13C(2) would provide that this evidential burden would be
satisfied by the person giving the CEO a statutory declaration stating that they do not possess
the information, document or things and has taken all reasonable steps to obtain this
information but has not been able to obtain it.
The new Section 73 also provides an exception to the offence of contravening the
requirements of a Disclosure Notice through Mistake of Fact. A person who wishes to rely
on a Mistake of Fact defence bears an evidential burden to demonstrate the Mistake of Fact.
This clause is reasonable and proportionate because the defendant will have the requisite
knowledge to adduce evidence of the Mistake of Fact.
vi
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