Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1998
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
EXPLANATORY
MEMORANDUM
(Circulated by authority of
the Minister for Sport and Tourism,
the Honourable Jackie Kelly
MP)
ISBN: 0642 378878
AUSTRALIAN SPORTS DRUG AGENCY AMENDMENT BILL
1998
TABLE OF CONTENTS
AUSTRALIAN SPORTS DRUG AGENCY AMENDMENT BILL 1998
The purpose of this Bill is to ensure the Australian Sports Drug Agency can
continue to undertake its responsibilities effectively and to provide leadership
in the international fight against the use of drugs in sport up to and beyond
the Sydney 2000 Olympic Games.
The aim of this Bill is to:
• Enable
the Agency to deliver an independent and high quality anti-doping program for
the Australian and international sporting communities;
• enable ASDA to
be more flexible and adopt world’s best practice when delivering drug
testing services to national and international sporting
organisations;
• position ASDA to service the needs of Australian sport
well beyond the 2000 Olympics;
• continue to maintain a strong focus on
preservation of athlete rights and procedural fairness through the drug testing
process; and
• to enable the creation of the Australian Sports Drug
Medical Advisory Committee to provide assistance and expert medical advice to
sport.
The Bill removes significant levels of operational detail from
the Australian Sports Drug Agency Act 1990 (the ASDA Act). Following
enactment of the amendments the ASDA Act will be a streamlined statement of the
principles defining the Government’s anti-doping objectives. It will
stipulate the Agency’s objects, powers and functions, and define the
ASDA’s obligations in relation to athletes’ rights and entitlements.
The amendments provide the Agency with greater flexibility by removing
detailed operational procedural matters out of the Act and placing them either
in the subordinate legislation and in some cases in Agency operational manuals
outside of the legislation. In addition procedural matters relating to the
Agency’s government funded public interest testing program will be removed
from the Act and will now be kept under the regulations as ‘drug testing
schemes’. While there may be a number of drug testing schemes, the Agency
will continue to promote harmonisation of anti-doping rules across all sports to
provide a nationally consistent approach.
The sample collection, sample
testing and result management processes of most International Sporting
Federations vary in a number of minor ways. There is no uniform international
procedure for sample collection and testing. The Agency is expected to
undertake an increasing number of tests on behalf of International Sporting
Federations in the lead up to the year 2000 Olympic Games. The amendments will
enable the Agency to apply best practice principles in complying with requests
from all International Sporting Federations and further ensures the Agency has
maximum flexibility to conduct specific drug testing services and safety
checking services to these organisations under contract on a user pays
basis.
The Bill establishes an Australian Sports Drug Medical Advisory
Committee (ASDMAC) within the Agency. ASDMAC’s primary functions will be
to provide:
• athletes with approval to use prohibited substances for
therapeutic purposes where such usage is recognised by the rules of the
athlete’s sport;
• expert medical assistance to accredited
laboratories when an investigation is required to determine whether a positive
test result for a banned endogenous substance is due to doping or a
physiological condition; and
• expert medical advice to the sports
doping tribunals that hear cases of alleged doping offences recorded by athletes
as a result of testing undertaken by the Agency or any other anti-doping agency.
The Bill provides a legislative framework for State and Territory
governments to enact State drug testing legislation that confers powers and
functions on the Agency that will enable the Agency to undertake drug testing on
State level competitors. This measure has the strong support of all State and
Territory Ministers for Sport. The amendments will enable all States and
Territory governments to access the drug testing expertise of the
Agency.
The Bill also puts in place a mechanism that will enable the
Agency to receive information from the Australian Customs Service (ACS) about
the illegal importation of banned sport performance enhancing substances.
Should ACS detect the illegal importation of these substances at the customs
barrier, the amendments enable the Agency to receive information from the ACS
which can then be used by the Agency to inform its test distribution
plan.
Provisions have been included to protect the interests and rights of competitors to ensure that natural justice principles are available and applied to the drug testing processes the Agency undertakes. These provisions are consistent with the level of athlete rights provided for under the Act prior to these amendments.
The Agency’s 1998-99 budget will meet the costs associated with the
establishment and operation of the ASDMAC. Annual ASDMAC costs are expected to
be of the order of $113,000.
1. This clause provides for this Bill to be cited as the Australian Sports Drug Agency Amendment Act 1998.
2. Subclause 2(1) provides for the commencement of the Bill by Proclamation,
subject to Subclause 2(2).
3. Subclause 2(2) provides for the
commencement of the Bill where the Bill has not commenced within six months of
receiving the Royal Assent. In this case, the commencement date will be the
first day after that six month period ends.
4. This clause provides a schedule of items proposing amendments to the Australian Sports Drug Agency Act 1990.
5. This item will repeal the definition of 'accredited laboratory' and replace it with a new definition of ‘accredited laboratory’ described in the new Section 66 proposed for introduction by Item 76.
6. This item will introduce and insert a definition of an ‘analytical investigative body’, to provide for instances where the Agency needs recourse to an ‘analytical investigative body’ to investigate the circumstances of positive test results or where the laboratory requires expert medical assistance to determine whether the cause of a positive test result is due to doping or other reasons.
7. This item will repeal the definition of ‘applicable procedures’. Applicable procedures will no longer be a term used in the Act because detailed procedures for the collection and testing of samples, and the notification of results, will be removed from the Act.
8. This item will repeal the definition of ‘approved anti-doping body’. The term ‘approved anti-doping body’ will no longer be referred to in the amended Act.
9. A definition of ‘ASDMAC’ will establish the meaning of this acronym for the purposes of this Bill. A new Part 7A, proposed for introduction by Item 75, will define the structure and functions of ASDMAC.
10. A definition of ‘ASDMAC Chairman’ will establish the meaning of this term for the purposes of the Bill.
11. A definition of ‘ASDMAC member’ will establish the meaning of this term for the purposes of the Bill.
12. A definition of ‘doping method’ will provide clarity to this term by providing examples of actions that constitute a doping method. The definition will not be an exhaustive list of doping methods. Other examples include manipulation of a sample, and the use of drugs to mask the presence of scheduled drugs.
13. The proposed definition of ‘drug’ includes any substance whether naturally occurring (eg. testosterone, peptide hormones, etc.) or otherwise (eg. manufactured and synthetic substances such as anabolic steroids, stimulants, etc).
14. This item will repeal the definition of ‘drug testing program’. The term ‘drug testing program’ will no longer be referred to in the amended Act.
15. A definition of ‘drug testing scheme’ will establish the meaning of such a scheme as that described in the new Section 11 proposed for introduction by Item 49.
16. The proposed definition of ‘drug testing service’ describes the provision of a service for testing of one or more persons for the use of drugs where each person is participating in a sporting activity and testing is conducted on a sample provided by the person.
17. This item will repeal the definition of ‘foreign sampling request’. The term ‘foreign sampling request’ will no longer be referred to in the amended Act.
18. This item will repeal the definition of ‘negative test result’. A definition of the term ‘negative test result’ will no longer be required as the meaning of this term is described in new Subsection 18(2AA) proposed for introduction by Item 62.
19. This item will repeal the definition of ‘positive test result’. A definition of the term ‘positive test result’ will no longer be required as the meaning of this term is described in new Section 14 proposed for introduction by Item 49.
20. This item will repeal the definition of ‘Register’ and substitute a new definition which supports a Register of Notifiable Events being established under each drug testing scheme.
21. The proposed definition of ‘registered medical practitioner’ will establish the meaning of this term for the purposes of the Bill.
22. This item will renumber Subsection 2(1) paragraph (a) (second occurring) to correct a typographical error.
23. The proposed definition of ‘research’ is provided to support provisions relating to the Agency's ability to conduct research (including qualitative and statistical research) and disseminate results of that research to appropriate bodies as the need arises.
24. This item will repeal the definition of ‘reviewable decision’. A definition of the term ‘reviewable decision’ will no longer be required as the meaning of this term is described in new Sections 15 and 16 proposed for introduction by Item 49.
25. The proposed definition of ‘safety checking service’ is provided to support provisions within the Bill relating to the Agency providing ‘safety checking services’ under contract and on a user pays basis. A safety checking service will be a service where samples are tested to determine whether a person’s physiological or psychological state makes it unsafe for them to participate in sporting competition. In this instance a person’s psychological state can only be determined through the testing of a sample to determine if substances that may impair the participant’s judgement are present in the sample. The definition is also provided to differentiate between a ‘safety checking service’ and a ‘drug testing service’ which the Agency is also able to provide under contract and on a user pays basis.
26. This item will repeal the current definition of ‘sample’ and substitute a new definition which will widen the meaning to reflect changing analytical techniques for the detection of scheduled drugs and doping methods. While urine and blood remain the most common forms of sample, the expanded definition incorporates human breath to cover breath samples that may be collected and tested by breathalyser equipment, and biological tissue such as skin and hair, which are currently under investigation as other types of samples that may be effective matrixes for the detection of certain substances.
27. This item will repeal the current definition of ‘scheduled drug or doping method’ and replace it with a new definition to support provisions relating to ‘drug testing schemes’. Each drug testing scheme created will have its own schedule of drugs and doping methods defined by the scheme. There is the potential for each scheme to have a different schedule of drugs and doping methods.
28. The proposed definition of ‘sporting administration body’ is provided to support provisions relating to notification of an entry on a Register and dissemination of information relating to drug use in sport. The definition of ‘sporting administration body’ will provide flexibility for the Agency to determine a ‘relevant’ sporting administration body for the purposes of sample test result management processes. While there is a degree of overlap in the list of organisations included in the definition, the list is presented in this form to provide for clarity of understanding.
29. The proposed definition of ‘therapeutic approval body’ is provided to support provisions relating to recognition of approvals provided to competitors for the use of banned substances for therapeutic purposes.
30. This item will omit the term ‘the Register’ from Section 2A and replace it with the term ‘a Register’ to support provisions within the Bill relating to ‘a Register’ kept for the purposes of a ‘drug testing scheme’.
31. This item will add an additional subparagraph to Section 3(1)(c). It widens the definition of people receiving support from a government or government agency to include persons who are members of, or are in any way associated with, a sporting organisation that ‘receives advice or other services from the government or government agency,’ including support such as financial and business planning assistance and advice.
32. This proposed item repeals Subsection 4(1) and substitutes a new subsection providing examples of situations in which the Agency may request a person to provide a sample. The new Subsection 4(1) will provide for situations where the Agency requests a person to provide a sample:
• under a drug testing scheme;
• under a contract entered into
by the Agency to provide drug testing services;
• under a contract
entered into by the Agency to provide safety checking services; and
• where the request is made by a foreign sporting organisation or under an anti-doping arrangement.
33. This item will omit the term ‘scheduled’ from paragraph 8(a). The Agency’s revised object will be to deter the use of drugs and doping methods in sport.
34. This item will add a fifth objective to Section 8, being ‘to facilitate the safety of participants in sporting competitions’. The Agency’s objective in this regard will be limited to facilitating safety through the provision of ‘safety checking services’ under contract to sporting organisations on a user pays basis.
35. This item will add the phrase ‘the use of’ to Paragraphs 8(b) and (d). It will provide that the Agency’s objects in the amended Act are consistent and relate to ‘the use of drugs in sport’, and therefore can be taken to mean the use of drugs and doping methods.
36. This item will repeal Paragraphs 9(1)(a), (b) and (c) and substitute two
new functions (new Paragraphs 9(1)(a) and (b)) that enable the Agency
to:
• carry out such functions that are conferred on the Agency by a
‘drug testing scheme’; and
• to provide ‘drug testing
services’.
37. The proposed change in description of the functions is necessary to provide the Agency with the ability to conduct its operations as specified in new Section 11 introduced by Item 49.
38. This item will insert the term ‘the use of’ to Paragraphs 9(1)(e), (f) and (i). It will provide that the Agency’s functions are consistent and relate to ‘the use of drugs in sport’, and therefore can be taken to mean the use of drugs and doping methods.
39. This item will add a new paragraph to Subsection 9(1) that will enable the Agency to conduct ‘safety checking services’ for sport which will only be provided under contract on a user pays basis. Examples of safety checking services include testing for the presence of alcohol and other substances that may impair the participant’s judgement in motor sports; and testing for high red blood cell counts in cycling.
40. This item will add two new paragraphs to Subsection 9(1) which provide
the Agency with two new functions that enable the Agency to:
• collect,
analyse, interpret and disseminate information about the use of drugs in sport
which can assist the Agency in more effectively performing its drug testing and
safety checking services and its sports drug education function;
and
• conduct research relating to the use of drugs in sport and the
safety of participants in sporting competition and disseminate results of that
research.
41. While the research function will allow the Agency to disclose research information, new Subsection 67(4G) proposed for introduction by Item 85 will not allow disclosure of research information derived from drug test results where such disclosure might result in the identification of any person who provided a sample.
42. This item will omit the word ‘about’ and substitute ‘relating to the use of’ in Paragraph 9(1)(g). It will provide that the Agency’s functions are consistent and relate to ‘the use of drugs in sport’ and therefore can be taken to mean the use of drugs and doping methods.
43. This item will add the words ‘and the safety of participants in sporting competition’ after ‘drugs in sport’ in Paragraph 9(1)(g) to enable the Agency to advocate and support research about drugs in sport and the safety of participants in sporting competition. Analytical research in these areas is expected to enable the Agency to have access to more effective detection methodologies to support its drug testing and safety checking services.
44. This item will add a new paragraph to Subsection 9(1) which will provide the Agency with an additional function enabling the Agency to do anything incidental to, or conducive to, the performance of its functions. The amendment will provide the Agency with the flexibility required to perform its functions with optimal efficiency and effectiveness. The amendment will remove any doubt about the Agency’s capacity to operate at the limits of its functions.
45. This item will repeal Subsection 9(2) and substitute two new subsections.
46. New Subsection 9(2) will provide that the Agency must not collect samples
for any purpose other than:
• to enable the testing of those samples to
determine whether persons have been using drugs; or
• to enable the
testing of those samples to determine whether a person's physiological or
psychological state makes it unsafe for them to participate in sporting
competition.
47. New Subsection 9(2A) will provide that the Agency may use samples collected, or the results of the testing of those samples, for the purposes of carrying out, or supporting, research relating to the use of drugs and the safety of participants in sporting competition. The amendment will enable the Agency to make samples available to accredited laboratories for analytical research to develop and improve methodologies for the detection of scheduled drugs and doping methods. Consistent with the requirements of new Subsection 67(4G) proposed for introduction by Item 85 the Agency will not be able to disclose information to an accredited laboratory where such disclosure might result in the identification of any person who provided a sample.
48. This item will omit the words ‘its functions’ (the first occurring time) from Subsection 9(6) and substitute ‘the functions conferred on it by this Act’. It will provide support for provisions within the Bill that enable the conferral of functions on the Agency under drug testing schemes and under complementary State and Territory legislation.
49. This item will add a new paragraph to Subsection 9(6) that will enable the Agency to perform services for the purposes of ‘utilising spare capacity’ and/or ‘improving the specialised technical skill of staff’ as long as that activity does not impede the Agency’s capacity to perform its other functions. The provision will enhance the Agency’s capacity to improve its drug testing services.
50. This item will add an additional subsection to Section 9 which will provide that in relation to the amended Subsection 9(6), the words ‘this Act’ are to be taken to include ‘drug testing scheme’. The item will provide support and consistency for other provisions within the Bill that relate to ‘drug testing schemes’.
51. This item will repeal Subsection 9A(1) and replace it with two new subsections. The new provisions will enable the States and Territories to confer powers and functions on the Agency, subject to the approval of the Commonwealth Minister for Sport. The provisions will then enable the Agency to provide drug testing services for State and Territory governments on a commercial basis.
52. This item will omit the words ‘if a law of a State or Territory covered by subsection (1)’ in Subsection 9A(2) and substitute ‘If the Agency is authorised to exercise a power, or perform a function, under a law of a State or Territory and that law’. The new wording within Subsection 9A(2) is necessary to be consistent with the wording of amended Subsections 9A(1) and 9A(1A) proposed for introduction by Item 43.
53. This item will insert the words ‘last mentioned’ after the word ‘jurisdiction’ in Subsection 9A(2). The additional wording within Subsection 9A(2) is necessary to be consistent with the amended wording of Subsection 9A(2) proposed for introduction by Item 44.
54. This item will insert the words ‘last mentioned’ after the words ‘perform that’ in Subsection 9A(2) which will be necessary to ensure consistency with the amended wording of Subsection 9A(2) proposed for introduction by Item 44.
55. This item will add a new paragraph to Subsection 10(1) that will confer a power on the Agency to form or participate in the formation of companies. The item will enable the Agency to establish companies for commercial purposes (e.g. joint ventures with international sporting organisations and anti-doping authorities, etc.), consistent with the Agency’s objects and the performance of its functions.
56. This item will introduce two new sections.
57. The new Section 10A will place limitations on the Agency's power to form
and participate in the formation of companies (as proposed for introduction by
Item 47). It will provide for the Minister for Sport to approve the
establishment of any company including the memorandum and articles of any such
company, after consultation with the Minister for Finance and Administration.
The Minister for Sport will also have the power to approve appointment of
company directors.
58. The new Section 10A will also provide that a
company formed under these provisions is owned by the Agency if and only if all
shares are beneficially owned by the Agency or if all interests and rights of
members in or in relation to the company are beneficially owned by the Agency.
59. The new Section 10B will provide for the formation of a Foundation that
will raise money to support research into the use of drugs in sport and
initiatives that increase the skills and knowledge of people about the use of
drugs in sport. The Agency requires the ability to form a Foundation to assist
its efforts to raise revenue to support its research and education/information
dissemination functions.
60. The new Section 10B will provide for
the Minister for Sport to form a company limited by guarantee where all the
rights and interests of members are beneficially owned by the Commonwealth. New
Section 10B will also provide that the Agency's powers under Section 10 to
participate or form a company under the amended Act is not limited by the
provisions of new Subsection 10B(1).
61. This item will repeal Part 3 (which relates to the requesting, collecting and testing of samples by the Agency). The item will substitute a new Part 3 which relates to ‘Drug Testing Schemes’ and defines the manner by which the Agency provides its government funded public interest drug testing services to sport. International developments in anti-doping procedures require the Agency to respond quickly. This amendment will enable the timely amendment of procedures for dealing with a sample through amendment of ‘drug testing schemes’ in the regulations. The amendments will provide the Agency with flexibility to adopt world’s best practice when delivering drug testing services.
62. The item will describe the components of drug testing schemes. It will
also set out provisions that enable drug testing schemes to recognise
differences between sports in relation to competitors, drugs and doping methods.
63. Under new Subsection 11(1) the regulations may formulate one or more
‘drug testing schemes’. This will provide the Agency with the
flexibility to provide drug testing services to sports with differing procedural
requirements.
64. The new Subsection 11(2) will define the components of
a ‘drug testing scheme’. It will require each drug testing scheme
to:
• define the competitors subject to testing under the
scheme;
• define the schedule of drugs and doping methods, under the
scheme;
• authorise the Agency to request competitors to provide
samples;
• establish a Register of Notifiable Events for the scheme
upon which the names of competitors who fail to comply with a request for a
sample, or record a positive test result, will be entered;
• define the
details that may be entered on the Register (such as date of test, substance
detected, and sport); and
• require the Agency to notify relevant
national sporting organisations, and any relevant sporting organisations, of
entries on the Register.
65. In addition, the ‘drug testing scheme’ provisions will also recognise that sports have differing anti-doping policies. New Subsection 11(3) will specify that the circumstances of a positive test result will differ according to the sport in which the competitor participates, and whether the drug or doping method is prohibited by that sport.
66. For instance, under new Subsection 11(3) a positive test result
indicating the presence of a beta blocker type drug from a sample taken from a
competitor from the sport of archery would result in an entry being placed on a
Register as this substance could enhance performance in this type of event. A
similar result in a sample collected from a competitor from the sport of
athletics would not be placed on a Register as the drug is not a banned
substance and does not enhance the athlete’s performance in this event.
67. The new Subsection 11(4) will also ensure that Subsection 33(3A) of
the Acts Interpretation Act 1901 will not be limited in any way by new
Subsection 11(3).
68. The new Subsection 11(5) will enable the Agency to
adopt lists of scheduled drugs and doping methods maintained by sporting
administration bodies as part of a drug testing scheme’s schedule.
69. The new Section 12 will provide that a competitor will not be taken to
have failed to comply with a request to provide a sample for the purposes of a
scheme unless the competitor:
• has failed to provide the sample;
or
• does not complete or sign a relevant form; or
• after
providing the sample, fails to do something required by the scheme, or does
something in relation to the sample, which is not required by the scheme (eg.,
tampering with a sample, etc).
70. The provisions within new Section 12 will also apply in situations where the Agency uses electronic devices for storing and communicating information relating to a sample provided by the competitor.
71. The definition of ‘failure to comply’ will be consistent with the definition that currently operates under the Act.
72. The new Section 13 will describe examples of circumstances to be defined in a drug testing scheme that will result in a positive test result being entered on a scheme’s Register of Notifiable Events. The examples are provided as a guide. They are not an exhaustive list.
73. The examples provided in new Subsection 13(1) describe circumstances in
which the ASDMAC, as proposed for introduction by Item 75, or an analytical
investigative body or therapeutic approval body recognised by the sport, will
assist in the determination of whether an entry should be made to a
scheme’s Register.
74. The new Subsection 13(2) will provide for
the ASDMAC or analytical investigative bodies recognised by the sport to ask the
Agency to collect further samples from a competitor for the purposes of
conducting an investigation to determine if the positive test result is
attributable to naturally occurring levels of the substance detected (eg.,
whether high testosterone levels are due to a pre-existing physiological or
pathological condition) or doping. The extra samples taken in this circumstance
will only be used to confirm or nullify the initial test result except where
additional prohibited substances are detected in those samples.
75. New Section 14 will define a positive test result for the purposes of drug testing schemes. It will require that the analysis is conducted by an accredited laboratory or using a specified analytical technique or equipment. It will also require that the testing of the sample reveals the presence of a drug or doping method included in a drug testing scheme’s schedule and specified by the scheme to be a drug or doping method applicable to the competitor’s field of sporting activity. Finally, the proposed section will provide that the level detected exceeds the permitted level in relation to the drug or doping method as listed in the scheme’s schedule.
76. The new Subsections 15(1) to (5) will specify that a drug testing scheme
must confer the following rights on a competitor:
• notification of the
possible consequences of failing to comply with a request to provide a
sample;
• notification in writing of an Agency decision to enter a name
on the Register of Notifiable Events for a scheme;
• ability to appeal
that decision through the Administrative Appeals Tribunal;
and
• notification of other rights that are conferred on the competitor
by the scheme.
77. These rights will be supplemented by additional rights defined in the drug testing scheme as proposed by new Subsection 15(6). Examples of additional rights defined in a scheme may include a competitor’s right to have a representative accompany them through the drug testing process, and a competitor’s right to witness the unsealing and analysis of the B sample. The full list of competitors’ rights defined in the amended Act and complemented by additional rights to be defined in a scheme will be consistent with the rights competitors presently have under the Act.
78. The new Subsection 15(7) will provide that competitors have the right to waive any or all of their rights throughout the drug testing process under a drug testing scheme. For example, to streamline the result management process competitors will be able to waive their right to the B sample analysis and/or make submissions if they do not wish to contest the test result or drug testing procedures. Competitors will not lose these rights, but will be given a choice to exercise them or not.
79. The new Section 16 will provide that where the Administrative Appeals Tribunal (AAT) sets aside a decision to place a competitor’s name on a drug testing scheme’s Register of Notifiable Events, the Agency must, as soon as practicable after that AAT decision or order is made, remove the competitor’s name from the Register. In addition, after a competitor’s name is removed from the Register due to an AAT decision or order, the Agency must give, as soon as practicable, written notice of the removal to all persons and organisations notified of the entry. The proposed arrangements for review of Agency decisions by the AAT will be consistent with the arrangements that presently exist under the Act.
80. The new Subsections 17(1) and (2) will provide for drug testing schemes to make provision for the manner in which a request is made of a competitor to provide a sample for testing. Substantial compliance, rather than strict compliance, will be sufficient for these purposes.
81. The new Subsection 17(3) will provide that after the Agency makes
reasonable efforts to make an oral request of a competitor to provide a sample
and that those efforts have been unsuccessful, then the Agency may make the
request by way of a written notice to a competitor. Written notice will be
taken to mean that notification has occurred, and will enable the Agency to
continue its processes under a drug testing scheme.
82. The new
Subsections 17(4) and (5) will define actions the Agency may take when
conducting testing under a drug testing scheme if it appears that a competitor
may fail to comply with a request to provide a sample or claims to have
retired.
83. Where a competitor appears likely to fail to comply, the
Agency may contact the competitor’s sporting organisation in the hope that
the sporting organisation can persuade the competitor to comply with the
request. This is clearly preferable to treating the competitor’s action
as a failure to comply and commencing action that may lead to entry of the
competitor’s name on a drug testing scheme’s Register of Notifiable
Events. Where a competitor claims to have retired, the Agency may seek
confirmation of this fact from the competitor’s sporting organisation.
All these provisions will be consistent with the rights competitors presently
have under the Act.
84. The new Subsection 17A(1) will provide that procedures for dealing with a sample may be set out in a drug testing scheme as proposed for introduction in new Section 11 by Item 49.
85. The new Subsection 17A(2) will provide that strict compliance with these
procedures will not be required except in circumstances defined by new
Subsection 17A(3), which are as follows:
• if the sample is tested by
an accredited laboratory, that the laboratory is an accredited
laboratory;
• if the sample is tested using particular analytical
techniques and equipment, the procedures for applying the analytical techniques
and using the equipment are followed correctly;
• ensuring that the
sample is not tampered with; and
• ensuring that the sample is securely
contained and identified.
86. The procedures relating to matters set out in new Subsection 17A(3) require strict compliance to ensure the integrity of the sample and the validity of the test result. The requirement for strict compliance in each of these four areas will be consistent with the strict compliance requirements that presently exist in the Act.
87. This means that except for the circumstances set out in new Subsection
17A(3), a sample will not be invalidated if a minor variation occurs in the
procedures for dealing with a sample.
88. The new Subsection 17A(4)
will provide that a drug testing scheme setting out procedures for dealing with
a sample may be of generally or specially limited application. The proposed
amendment will allow the Agency flexibility according to differences in time,
locality, place or circumstance.
89. The new Subsection 17A(5) will
provide that Subsection 17A(4) does not limit subsection 33(3A) of the Acts
Interpretation Act 1901.
90. The proposed new Subsection 17B(1) will provide that a drug testing
scheme may require or permit the Agency or the ASDMAC to disclose to relevant
sporting administration bodies information concerning an entry of a
competitor’s name on a scheme’s Register of Notifiable Events,
including:
• information concerning the failure by a competitor to
provide a sample;
• failure by the competitor to complete or sign any
form required;
• failure by the competitor to do anything that is
required to be done by the scheme in relation to a sample;
• any
provision of a sample by a person pretending to be the
competitor;
• any interference with the provision, collection or
testing of the sample; and
• the results of testing.
91. This information is required by sporting administration bodies to
effectively implement their anti-doping policies. Where a sporting
administration body that is notified of an entry on the Register does not
respond to the disclosure made by the Agency, this provision will allow ASDA to
notify other sporting administration bodies of the entry. For example, if an
international sports federation does not respond to notification of the entry of
a non-Australian competitor’s name on a drug testing scheme’s
Register, the Agency may notify another relevant foreign sporting body and or
the relevant Australian national sporting organisation of the entry on the
Register.
92. The provisions will also enable the Agency or the ASDMAC to
provide information to relevant sporting administration bodies that will assist
any doping tribunal’s deliberations. Examples of this type of information
include:
• the level of concentration of a drug found in a sample;
and
• ASDMAC assessments of whether usage of a drug is consistent with
any competitor claims of ‘inadvertent use’.
93. The new Subsection 17B(2) will allow the Agency to disclose information relating to a positive test result or a failure to comply with a request to provide a sample that has not yet led to an entry on a drug testing scheme Register (eg., a positive A sample result has been recorded but not confirmed, etc.) to a relevant sporting administration body, provided the identity of the competitor is not revealed or cannot be deduced. This will allow the Agency to respond generally to information about drug test results or a failure to comply that a competitor may have placed in the public arena, or provide advance notice to sporting administration bodies so that timely hearing arrangements can be organised.
94. The new Subsection 17B(3) will provide that the Agency may notify
different sporting administration bodies depending on the field of sport in
which a competitor participates.
95. The new Subsection 17B(4) will
provide that Subsection 17B(3) does not limit Subsection 33(3A) of the Acts
Interpretation Act 1901.
96. The new Subsection 17B(5) will
provide that the sporting administration bodies which may be notified of matters
covered by Section 17B may differ from those relevant national sporting
organisations and relevant sporting organisations notified of entries to a drug
testing scheme’s Register.
97. The new Section 17C will confirm that a drug testing scheme may confer administrative decision-making powers on different bodies such as the Agency, or the ASDMAC, or an analytical investigative body, or a therapeutic approval body. In particular, new Subsection 17C(2) will confirm that decisions which determine the circumstances that may lead to entry of a competitor’s name on a drug testing scheme Register for recording a positive test result, and made under new Subsection 11(2)(f) (as proposed for introduction by Item 49) will be administrative decisions.
98. The new Section 17D will provide that a drug testing scheme may require or permit the Agency to remove a name and particulars from the Register of Notifiable Events in circumstances specified under a scheme. It is intended that the schemes will include provisions allowing the removal of the names of minors from the Registers after they have completed any suspension imposed as a result of their name’s entry on the Register. These provisions will be consistent with the arrangements for removal of names from the Register that presently exist in the Act.
99. New Subsection 17E will provide that a drug testing scheme may contain ancillary or incidental provisions. The amendment will remove any doubt about the Agency’s capacity to operate at the limits of a drug testing scheme, if required.
100. New Subsection 17F will confirm that proposed Section 13, Subsections 15(6) and (7), and Sections 17 to 17E do not limit the powers relating to formulation of drug testing schemes under Section 11 (as proposed for introduction by Item 49). There will be one exception to this, in that the proposed strict compliance provisions set down in Subsection 17A(3) will still apply.
101. The amendment proposed by new Subsection 17G will allow the Agency to make drug testing orders. This will provide flexibility for the Agency to make timely variations to drug testing schemes without the need to amend the regulations.
102. New Subsection 17G(1) will provide that a drug testing scheme may
empower the Agency to make ‘drug testing orders’ under the scheme
with respect to any matter or in relation to provisions made by the scheme.
103. The proposed new Subsection 17G(2) gives some example components of
a drug testing scheme that might be made as drug testing orders. The list of
matters is not an exhaustive list.
104. New Subsection 17G(3) will
provide that a drug testing order is a disallowable legislative instrument. As
such, the Agency will be required to table all drug testing orders in the
Parliament where either House may disallow them.
105. New Subsection
17G(4) will provide that a drug testing order referred to in the proposed
Subsection 17G(1) may make provision to adopt, incorporating with or without
modification, any of the provisions contained in any other drug testing orders
as are in force from time to time or as are in force at a particular
time.
106. Without new Subsection 17G(5), the regulations could make
provision for or in relation to a matter by applying, adopting or incorporating
the provisions of any drug testing orders as in force when those regulations
take effect, but not as in force from time to time (ie as amended from time to
time). New Subsection 17G(5) allows the regulations to make provision for or in
relation to a matter by applying, adopting or incorporating the provisions of
any drug testing orders as in force from time to time.
107. New Subsection 17G(6) will provide that an order made under proposed
Subsection 17G(1) is subject to the provisions of the Administrative Appeals
Tribunal Act 1975.
108. New Subsection 17G(7) will provide that
provisions within the Act apply to drug testing orders in the same way in which
they apply to drug testing schemes. This provision is intended to remove doubt
that drug testing orders may in some way have a lesser degree of legislative
authority than drug testing schemes.
109. New Subsection 17G(8) will
confirm that the adoption of any order does not limit the application of the
proposed Subsection 11(5). This will mean that a drug testing scheme’s
schedule could be established under a drug testing order.
110. New Section 17H will provide that where a competitor provides a sample under a drug testing scheme that, in addition to any testing under the scheme to detect scheduled drugs or doping methods or for research purposes, the sample may also be tested for the purposes of contracts entered into by the Agency for the provision of additional drug testing or safety checking services.
111. New Section 17J will provide that Part 3 does not limit the other powers
of the Agency to:
• enter into contracts to provide drug testing
services and/or safety checking services; or
• to conduct testing on
behalf of foreign sporting organisations as provided by Part 3A and proposed for
introduction by Item 50; or
• to request other sporting administration
organisations to conduct testing on behalf of the Agency as provided by Part 3B
and proposed for introduction by Item 58.
112. This item will repeal the existing heading of Part 3A (Part 3A - Requesting, collecting and testing on behalf of or by a foreign sporting organisation) and substitute ‘Part 3A - Testing on behalf of a foreign sporting organisation.’
113. This item will repeal the existing heading of Division 1 of Part 3A as it will no longer be required within the amended Act.
114. This item will repeal existing Section 17X. The section will not be required in the amended Act because the Agency's general contracting powers under paragraph 10(1)(a) are adequate for this purpose.
115. This item will repeal existing Section 17Y and substitute a new Section 17Y in the amended Act. The item will provide that if the Agency has been asked by a foreign sporting organisation to request a competitor to provide a sample, or is required or permitted under an anti-doping arrangement to request a competitor to provide a sample, the Agency may make the request of the competitor. The effect of this amendment will be to enable the Agency to make requests on behalf of foreign sporting organisations. The amendment will also clarify the circumstances under which the Agency may make such a request. This new section will not limit the Agency's powers to enter into contracts on a user pays basis with foreign sporting organisations to provide drug testing services and/or safety checking services.
116. This item will repeal Paragraph 17Z(b) and substitute a new Paragraph 17Z(b) in its place. New Paragraph 17Z(b) will provide that if the Agency makes a request to a competitor to provide a sample for testing under an anti-doping arrangement, the procedures to be followed in relation to the request for the sample and subsequent actions will be the procedures as agreed to between the Agency and the organisation that has asked the Agency to make the request. Agreed procedures should cover the manner of collecting and analysing the sample and notifying the results of testing to the organisation that made the request.
117. This item will omit the words 'the relevant foreign sporting organisation of any matter arising out of the making of the request to the competitor' from Subsection 17ZA(1) and substitute ‘a sporting administration body of any matter arising out of the making of the request under Section 17Y to the competitor’. The item will make the wording of the Subsection consistent with proposed new terms introduced for the purposes of the Bill.
118. This item will repeal Subsections 17ZA(2) and (3). The Subsections will no longer be required within the amended Act because the result management procedures they described will now be covered by Subsection 17ZA(1) proposed for amendment by Item 55. This amendment will provide the Agency with increased flexibility with regard to its result management processes.
119. This item will repeal the existing heading of Division 2 of Part 3A as it will no longer be required within the amended Act.
120. This item will repeal Section 17ZB and replace it with a new Section
17ZB that will provide that Part 3A does not in any way limit the Agency’s
power to enter into contracts as provided for in Section 10. New Section 17ZB
will provide that Part 3A does not limit:
• the Agency’s power to
enter into contracts to provide drug testing services and/or safety checking
services; or
• powers conferred by Part 3 and proposed for introduction
by Item 49; or
• powers conferred on the Agency by a drug testing
scheme under new Section 11 proposed for introduction by Item 49.
121. The item will also insert a new heading after new Section 17ZB entitled ‘Part 3B - Testing by other sporting administration bodies’. The inclusion of a Part 3B will distinguish between provisions relating to the Agency requesting another sporting administration body to collect and test a sample from a person on the Agency’s behalf, as opposed to provisions within Part 3A which will provide that the Agency may collect and test samples from a person on behalf of a foreign sporting organisation.
122. The item will also introduce a new Section 17ZC relating to testing by
other sporting administration bodies at the request of the
Agency.
123. New Subsection 17ZC(1) will provide that the Agency may ask
a sporting administration body to arrange for a person who competes in a
particular field of sporting activity to be requested to provide a sample for
testing. The provision will also allow the sporting administration body
requested to conduct the test to give the Agency information about matters
arising out of making the request for a sample including information relating to
the failure to comply with such a request, any interference with the provision,
collection or testing of that sample, and the results of the
testing.
124. New Subsection 17ZC(2) will provide that if the request
relates to a test under a drug testing scheme the Agency may enter the name of,
and particulars relating to, the competitor on the Register of Notifiable Events
for that scheme where the competitor either fails to comply with a request to
provide a sample or records a positive test result.
125. New Subsection
17ZC(3) will provide that new Subsection 11(1), proposed for introduced by Item
49, relates to the formulation of drug testing schemes, is not limited by new
Subsection 17ZC(2).
126. New Subsection 17ZC(4) will remove doubt that
administrative decisions provided for under new Subsection 17C(1), proposed for
introduction by Item 49, may be made for the purposes of new Paragraph
17ZC(2)(b).
127. New Subsection 17ZC(5) will provide that to avoid doubt
in relation to the placing of entries on a scheme’s Register of Notifiable
Events as per Subsection 17ZC(2), new Subsections 15(3) and (4), proposed for
introduction by Item 49, will apply. The intent is to ensure that Agency
decisions to place a competitor's name and particulars on a Register under Part
3B will be reviewable decisions and that the competitor has a right to be
notified in writing of the posting of that result to the
Register.
128. New Subsections 17ZC(6) will confirm circumstances
specified for the purposes of placing a competitor’s name on a Register
under Part 3B may differ according to the field of sporting activity in which
the competitor participates and the drugs or doping methods revealed by a
positive test result.
129. New Subsection 17ZC(7) will provide that new
Subsection 17ZC(6) does not limit subsection 33(3A) of the Acts
Interpretation Act 1901.
130. New Subsection 17ZC(8) will
confirm that the Agency may request sporting administration bodies to conduct
testing on the Agency’s behalf both inside and outside of
Australia.
131. New Subsection 17ZC(9) will provide that a positive test
result has the same meaning as in new section 14 proposed for introduction by
Item 49.
132. New Section 17ZD will provide that Part 3B does not in any
way limit the Agency’s power to enter into contracts as provided for in
Section 10. New Section 17ZD will provide that Part 3B does not limit:
• the Agency’s power to enter into contracts to provide drug
testing services and/or safety checking services; or
• powers conferred
by Part 3 and proposed for introduction by Item 49; or
• powers
conferred on the Agency by a drug testing scheme under new Section 11 proposed
for introduction by Item 49.
133. This item will insert a heading entitled ‘Part 3C - Minister may request notification’ prior to existing Section 18. This amendment will provide clarity in relation to matters about which the Minister may request notification by the Agency.
134. This item will remove the words ‘the Register’ and replace them with ‘a Register’ in Subsections 18(1) and (2). This amendment will recognise that ‘a Register’ must be established as part of each drug testing scheme set up under the provisions of new Section 11 proposed for introduction by Item 49.
135. This item will add the words ‘under a drug testing scheme’ to Subsection 18(2A) and make it clear that the Minister may request notification relating to matters under a drug testing scheme established by new Section 11 proposed for introduction by Item 49.
136. This item will provide for the inclusion of a new subsection 18(2AA)
which defines the meaning of ‘negative test result’ under a drug
testing scheme. Effectively a negative test result will be a finding made by an
accredited laboratory or by using analytical techniques and equipment specified
in the scheme, where that finding is not a positive test result as defined by
new Section 14 proposed for introduction by Item 49.
137. The item
will also provide clarity as to what constitutes a negative test result for the
purposes of matters about which the Minister may request notification under new
Part 3C proposed for introduction by Item 59.
138. This item will remove the words 'Part 3' from Paragraph 18(2B)(a) and substitute ‘a drug testing scheme’. The item will make the wording of the Subsection consistent with proposed new terms introduced for the purposes of the Bill.
139. This item will remove the words ‘have an interest in a matter
if’ from the preamble of Subsection 28(4), which describes disclosure of
interest provisions for Agency Board members, and substitute ‘have an
interest in a matter, if and only if’. The proposed wording adopts the
current standard form of words for describing circumstances in which a
disclosure of interest is required in relation to those matters listed in
Paragraphs 28(4)(a) to (e).
140. This item will remove the words ‘direct or indirect pecuniary
interest’ from Paragraph 28(4)(a) and substitute ‘material personal
interest.’ This amendment will ensure that the wording in relation to the
disclosure provisions is consistent with the current general Commonwealth
requirements in relation to disclosure of interest by members of statutory
boards and committees.
141. This item will add a new Subsection 28(5) which will extend an
obligation currently on Agency Board members under Subsection 28(4). The
extension will require Board members to disclose an interest in a matter
involving a person requested to provide a sample by the Agency under contract,
as well as the current equivalent requirement in respect of a
competitor.
142. This item will insert new Subsections 36(1A) and (1B) which provide that
the Minister may terminate the appointment of one or more Agency Board members
for unsatisfactory performance. The amendments are standard Commonwealth
requirements in relation to unsatisfactory performance by members of statutory
Boards and committees.
143. This item will repeal Subsection 47(4) which relates to the tabling of
Strategic Plans before each House of the Parliament. The proposed amendment
will not remove the requirement for the Agency to prepare strategic plans and
have those plans approved by the Minister.
144. This item will repeal Subsection 50(2) which relates to the tabling of
Operational Plans before each House of the Parliament. The proposed amendment
will not remove the requirement for the Agency to prepare operational plans and
have those plans approved by the Minister.
145. This item will add the words ‘or the ASDMAC’ to Subsection
57(1)and therefore enable the Agency to engage persons to assist the ASDMAC in
the performance of its functions. ASDMAC is established under new Section 65B
proposed for introduction by Item 75.
146. This item will insert the words ‘(including remuneration and
allowances payable to ASDMAC members)’ after the words ‘under this
Act’ in Paragraph 60(1)(b). The proposed amendment will confirm that
Agency is responsible for payment of remuneration and allowances to members of
the ASDMAC.
147. The item will repeal Paragraph 62(1)(a) and substitute a new Paragraph 62(1)(a) which requires the Agency to obtain the Minister’s approval before it enters into a contract involving the payment by the Agency of an amount exceeding $200,000. The item will also provide that a higher amount than the $200,000 limit can be specified in the regulations.
148. The provision will remove the need for Ministerial approval in relation
to receivable contracts, and increases the figure for purchasing contracts from
$100,000 to reflect more appropriately the current commercial capabilities of
the Agency.
Item 73 - Paragraph 63(2)(b) - Extra
matters to be included in the Annual Report
149. This item
will repeal Paragraph 63(2)(b) and remove the obligation for the Agency to list
accredited laboratories in its annual
report.
Item 74 - Subsection 63(3) - Extra
matters to be included in the Annual Report
150. This item
will insert a new Paragraph 63(3)(d) to the list of matters the Agency may
provide information about in its annual report. The additional Paragraph (d)
will enable the Agency to include information about the results of research
undertaken by, or supported by, the Agency.
151. This item will establish an Australian Sports Drug Medical Advisory Committee (ASDMAC) within new Part7A. The new Part will set out matters relating to ASDMAC’s establishment and functions, the arrangements for appointment of ASDMAC members and terms and conditions associated with their appointment; and remuneration of ASDMAC members. The terms and conditions of ASDMAC members will be consistent with those of Agency Board members.
152. New Section 65B will establish the ASDMAC. It will provide that the ASDMAC will comprise a Chairman and between a minimum of three (3) and not more than six (6) other members. New Subsection 65B(2) will provide that a person is not to be appointed as an ASDMAC member unless the person holds appropriate qualifications and or knowledge of a particular field of speciality so as to enable that person to fulfil the requirements of a role as a member on the ASDMAC.
153. The proposed new Section 65C will define the ASDMAC’s functions
as:
• Such functions conferred on the ASDMAC under a drug testing
scheme established by the Agency under the provisions of new Section 11 proposed
for introduction by Item 49.
• Advising the Agency and the Australian
Sports Commission about the performance of the ASDMAC's functions and other
matters relating to the use of drugs in sport or the safety of sporting
participants in sporting competitions.
• Providing advice and
information to sporting administration bodies about matters about individual
cases that may be considered by sporting administration body doping tribunals.
This provision will enable the ASDMAC to provide information to sporting
administration bodies whether or not a sample has been collected, and whether or
not the Agency has conducted the testing. This provision will also enable the
ASDMAC to provide advice and personal information to athletes (being competitors
or persons for the purposes of the proposed Bill) if they are involved in a case
that may be considered by a sporting administration body doping
tribunal.
• Providing services on behalf of the Agency where the Agency
enters into a contract which specifies that ASDMAC will provide services. The
services that ASDMAC can provide can include the provision of information and/or
advice. This provision is intended to enable the ASDMAC to perform its
functions under contract to a sporting administration body where the sporting
administration body wishes to access ASDMAC services.
154. New Subsection 65C(2) will list examples of functions that may be
conferred on the ASDMAC under a drug testing scheme. The list of examples is
not exhaustive and additional ASDMAC functions may be defined in a drug testing
scheme from time to time. For the purposes of this Bill, examples of functions
that can be conferred on ASDMAC will include:
• conducting
investigations relating to positive test results (described in new Paragraph
13(1)(a) proposed for introduction by Item 49);
• approving the use of
scheduled drugs for therapeutic purposes where such use is recognised by the
rules of the relevant sport (described in new Paragraph 13(1)(b) proposed for
introduction by Item 49); and
• providing expert medical advice to
competitors and the doping tribunals of sporting administration bodies in
respect of the entry of competitors’ names on a drug testing
scheme’s Register (described in new Subsection 17B proposed for
introduction by Item 49).
155. New Subsection 65C(3) will provide that Subsection 9(6) applies to the functions of ASDMAC in a corresponding way to the way in which it applies to the functions of the Agency. This provision will allow the ASDMAC to perform its functions to the extent of the functions that may be conferred on it.
156. New Section 65D will set out arrangements for the appointment of ASDMAC members. New Subsections 65D(1) to (4) will provide that ASDMAC members are appointed by the Minister by written instrument; that members are appointed for a specified period not exceeding five (5) years and hold office on a part-time basis; and that the performance of ASDMAC functions is not affected only because of there being a vacancy or vacancies in membership.
157. New Section 65E will provide that the details of ASDMAC meeting procedures will be prescribed in the regulations. It will also specify that regulations may define the manner in which the ASDMAC performs its functions and the procedures to be followed by the ASDMAC in relation meetings of the ASDMAC.
158. New Section 65F will set out the obligations on ASDMAC members to disclose an interest in a matter being considered by the ASDMAC and action to be followed in the event that a member discloses an interest in a matter. The provisions set out in the new Section are consistent with normal Commonwealth requirements in relation to disclosure of interests by members of statutory Boards and committees.
159. New Subsection 65F(1) will provide that an ASDMAC member who has an
interest in a matter being considered by the ASDMAC must as soon as practicable
after the relevant facts have come to the member’s attention, disclose the
nature of the interest at a meeting of the ASDMAC. The intent of this
Subsection is to prevent a real or perceived conflict of interest that may arise
when the ASDMAC members are considering a matter related to the performance of
ASDMAC’s functions from compromising any decision the ASDMAC or its
members may make in respect of the matter.
160. New Subsections 65F(2)
will provide that a member's disclosure of interest in a matter is to be
recorded in the minutes of the meeting and, unless the Minister or the ASDMAC
determines otherwise, the member is not to take part in any decision or
deliberation in relation to that matter. The intent of this Subsection is to
maintain a record of disclosures and prevent a real or perceived conflict of
interest, and confirm what, if any, involvement an ASDMAC member who discloses
an interest may have in any deliberation on the matter in which the member
discloses the interest.
161. New Subsection 65F(3) will provide that
where an ASDMAC member has disclosed an interest in a matter, that member must
not take part in any deliberation or decision to determine that member’s
involvement in the matter.
162. New Subsection 65F(4) will provide that
an ASDMAC member is taken to have an interest in a matter if:
• the
member has a personal interest in the matter; or
• the matter concerns
a particular sport, sporting organisation, or sporting event in which the ASDMAC
member participates or is involved in the administration of; or
• the
matter concerns a particular competitor and the member is related to or has some
involvement with the competitor.
163. With respect to a disclosure of interest concerning a competitor, new
Subsection 65F(5) will provide that a person tested by the Agency under either a
drug testing service or safety checking service contract is taken to be a
competitor for the purposes of Subsection 65F(4).
164. New Section 65G will provide that an ASDMAC member is not to take part in any decision of a sporting administration body relating to a matter, such as providing advice to a doping tribunal, if the ASDMAC member has been present during or has taken part in any decision-making by the ASDMAC in relation to the matter or competitor. The intent of this Subsection is to prevent a real or perceived conflict of interest arising when ASDMAC members provide advice or assistance to a sporting administration body.
165. New Section 65H will provide that ASDMAC members are to be paid such remuneration as is determined by the Remuneration Tribunal. If no determination has been made the ASDMAC members will be paid such remuneration as is prescribed. Allowances will be paid to ASDMAC members as prescribed. This section will be subject to the effect of the Remuneration Tribunal Act 1973.
166. New Section 65J will provide that the Minister or the ASDMAC Chairman may grant leave to an ASDMAC member to be absent from a meeting or meetings of the ASDMAC.
167. New Section 65K will provide that a member of ASDMAC may resign by submitting a written resignation to the Minister.
168. New Section 65L will describe the manner in which, and reasons for which, the Minister can terminate the appointment of ASDMAC members. The provisions set out in the new Section are consistent with normal Commonwealth requirements in relation to termination of member’s appointments to statutory Boards and committees.
169. New Subsections 65L(1) will provide that the Minister must terminate an
ASDMAC member's appointment if the member ceases to be a registered medical
practitioner.
170. New Subsection 65L(2) will provide that the Minister
may terminate an ASDMAC member's appointment if the Minister is of the opinion
that the ASDMAC member’s performance is unsatisfactory.
171. New
Subsection 65L(3) will provide that in the circumstances where the Minister is
of the opinion that ASDMAC’s performance is unsatisfactory the Minister
may terminate the appointment of all ASDMAC members at the one time.
172. New Subsection 65L(4) will provide that the Minister may also
terminate an ASDMAC member’s appointment due to a member's misbehaviour or
physical or mental incapacity.
173. New Subsection 65L(5) will provide
for further circumstances where the Minister may terminate an ASDMAC member's
appointment. The proposed circumstances provide that the Minister may terminate
a member’s appointment if the member becomes bankrupt or insolvent; is
absent without leave from three consecutive meetings; fails to disclose an
interest in a matter under ASDMAC consideration; fails to remain at arm’s
length from a decision made by a sporting administration body where the decision
relates to a matter or competitor in respect of which ASDMAC has made a
decision; or commits a breach of the Agency’s secrecy provisions as
defined by existing Section 67.
174. New Section 65M will provide that the Minister may set terms and conditions (if any) when appointing a member to the ASDMAC, and that these terms and conditions do not have to be included in the Act for the Minister to set them.
175. New Section 65N will provide that the Agency may make resources and facilities available to the ASDMAC, including secretariat and clerical assistance, for the purposes of enabling the ASDMAC to perform its functions. The ASDMAC secretariat will serve as the interface between the Agency and ASDMAC.
176. New Section 65P will provide for the manner in which ASDMAC may delegate its powers and functions to ASDMAC members.
177. New Subsections 65P(1) and (2) will provide that the ASDMAC may by
resolution delegate to an ASDMAC member all or any of its powers under the Act.
Any delegation may also be revoked by resolution of the ASDMAC. A resolution
can be revoked even if the composition of ASDMAC has changed since the time when
the power was delegated. Any revocation will continue to be in force
notwithstanding any change to the membership of ASDMAC.
178. New
Subsection 65P(3) will provide that Section 34A of the Acts Interpretation
Act 1901 applies in relation to a delegation of a power under this section
as if the ASDMAC were a person.
179. New Subsections 65P(4) and (5) will
provide that a certificate signed by the ASDMAC Chairman stating any matter with
respect to a delegation of power under this section is prima facie evidence of
that matter. The provisions will also provide that such a certificate of
delegation is taken to be such a certificate that has been duly given unless
evidence can be presented that demonstrates the certificate is not valid.
180. New Subsection 65P(6) will provide that a delegate under this
Section is delegated to exercise the delegated power or function subject to any
directions given by the ASDMAC.
181. New Subsection 65P(7) will confirm
that delegation provisions set out in Section 65P also apply is respect of drug
testing schemes established under new Section 11 proposed for introduction by
Item 49.
182. This item will repeal Section 66 and replace it with a new Section 66. The item will provide that a reference within the Act to an ‘accredited laboratory’ is a reference to either a laboratory recognised by the International Olympic Committee (IOC) for the purposes of testing for drugs in sport; or a laboratory that is recognised as a prescribed organisation as complying with International Standards Organisation (ISO) general requirements for the competence of calibration and testing laboratories; or a laboratory satisfying other requirements prescribed in the ASDA regulations. The item will also provide that an accredited laboratory may be situated either inside or outside of Australia.
183. Some sporting organisations are beginning to recognise non-IOC
accredited laboratories for the purposes of conducting some parts of their drug
testing and safety checking programs. This amendment will provide the Agency
with the flexibility to utilise the service of laboratories other than IOC
accredited laboratories where the rules of sporting organisations allow this to
happen and those other laboratories maintain an acceptable national or
international industry standard for laboratory analysis.
Item 77 - Sections 66C and 66D - Agency may
approve anti-doping bodies and Agency may request approved anti-doping body to
test an Australian competitor
184. The item will repeal
Sections 66C and 66D. The provisions within those sections are no longer
required as the functions they presently confer on the Agency will be covered by
new Part 3B proposed for introduction by Item
58.
Item 78 - Paragraphs 67(1)(da) and (db) -
Disclosure of confidential information
185. This item will
provide that the requirements of Section 67 that do not permit the disclosure of
confidential information (such as personal information about a competitor or
drug test results) will be extended to apply to ASDMAC members and ASDMAC
consultants.
186. The item will provide for a new Subsection 67(3A) which provides
examples of the circumstance where information may be disclosed by a person to
whom Section 67 applies. The provision will confirm the Agency is able to pass
information to sporting administration bodies with which it has contracted to
provide drug testing services and/or safety checking services without breaching
the disclosure of confidential information provisions set out in Section 67.
Such disclosure, because it will be consistent with the requirements of
Subsection 67(3), is made for the purposes of the Act or in connection with the
Agency’s performance of it functions or duties or the exercise of its
powers under the Act.
Item 80 - Subsection 67(4)
- Disclosure of confidential information
187. The item will
amend Subsection 67(4), which sets out the obligations of persons covered by the
Section 67 disclosure of confidential information provisions, not to disclose
information or documents to a court except where necessary to do so for the
purposes of carrying into effect the provisions of this Act. The amendments
will provide for an additional exception, being that the persons covered by this
provision should be able to disclose information or documents for the purposes
of criminal proceedings.
188. The intent of this provision is to make clear that where a criminal
proceeding is taking place or is to take place in a Court of Law and the Agency
is subpoenaed for information or documents that the Agency will be able to
provide that information. Although the action of making the disclosure will be
mandatory, this is not meant to include that the Agency will be required to
provide information or documents to law enforcement agencies when such agencies
are seeking to gather evidence to determine whether or not to initiate criminal
proceedings.
Item 81 - Subsection 67(4A) -
Disclosure of confidential information
189. The item will
provide for the omission of the words 'Nothing in this section' from Subsection
67(4A) and substitute 'Despite subsection (3)’. In doing so, this
amendment will confirm that disclosures permitted by Subsection 67(4A) will be
exempt from the application from Subsection
67(3).
Item 82 - Paragraph 67(4A)(a) -
Disclosure of confidential information
190. The item will omit
the words 'prevents the Agency or an accredited laboratory from disclosing or
communicating' from Paragraph 67(4A)(a) and substitute 'the Agency or an
accredited laboratory may disclose or communicate'. This is a consequential
drafting amendment made necessary by proposed Item
81.
Item 83 - Paragraph 67(4A)(a) - Disclosure
of confidential information
191. The item will omit the word
'competitor' from Paragraph 67(4A)(a) and substitute 'person'. The amendment
reflects the need for the Agency to apply this provision in respect of drug
testing conducted under a drug testing scheme (which relates to competitors) and
drug testing and safety checking services provided under contract (which relates
to a person or persons).
Item 84 - Paragraph
67(4A)(b) and (c) - Disclosure of confidential
information
192. The item will omit the words 'prevents the
Australian Sports Drug Testing Laboratory from notifying' from Paragraphs
67(4A)(b) and (c) and substitute 'the Australian Sports Drug Testing Laboratory
may notify.’ This is a consequential drafting amendment made necessary by
proposed Item 81.
Item 85 - Subsection 67(4B) to
(4G) - Disclosure of confidential information
193. The item
will provide further exemptions from the disclosure of confidential information
provisions set down in Subsection 67(3) that are necessary for the Agency to
effectively perform its functions. New subsections 67(4B), (4C), (4D), (4E),
(4F) and (4G) will define the exemptions.
194. New Subsection 67(4B) will allow the Agency to disclose information to a
sporting administration body about an evasion or attempted evasion of a request
by the Agency to provide a sample by a person; and matters relating to the
aiding, abetting, counselling or procuring of such an evasion or attempted
evasion by a person. Evasion and attempted evasion of requests for a sample
made by the Agency undermines the integrity of drug testing and safety checking
services. The amendment will allow the Agency to pass on information of this
type to relevant sporting administration bodies so that they can consider the
information and determine whether it constitutes a breach of the relevant
sporting administration body’s anti-doping rules.
195. New
Paragraph 67(4C)(a) will allow the Agency or an ASDMAC member or consultant to
disclose to, or communicate with, a person about personal information relating
to that person. The intent of this provision is to enable the Agency or ASDMAC
to provide personal information, such as medical information, that may be
relevant to the person whose sample has been tested. The provision will enable
the Agency or ASDMAC to communicate information about a person’s medical
condition (eg tumours, etc) that may come to light as a result of analysis of a
sample provided by the person. Access to this type of information will allow
the person concerned to consider the information and decide whether to seek
medical attention.
196. New Paragraph 67(4C)(b) will allow the Agency or
an ASDMAC member or consultant to provide personal information to a third party
with the consent of the person about whom the information relates. This
provision is particularly important when dealing with minors. The provision
will enable the Agency to seek the agreement of minors to discuss the relevant
personal information with a parent or guardian. This exemption will apply for
testing conducted under a drug testing scheme or a contract between the Agency
and a sporting administration body.
197. New Subsection 67(4D) will allow
the Agency to disclose or communicate to a sporting administration body
information that was given to the Agency by another sporting administration
body. From time to time the Agency receives advice from other sporting
administration bodies about drug test results arising from testing conducted
independent of the Agency’s activities. The provision will enable the
Agency to pass on this information to relevant sporting administration bodies
within Australia (and some overseas bodies) when the Agency becomes aware of
this information so as to ensure relevant sporting administration bodies have
access to information.
198. New Subsection 67(4E) will allow the Agency
to disclose information to an ASDMAC member or an ASDMAC consultant that is
relevant to the use of drugs in sport or the safety of participants in sport
competitions. Similarly, it will allow an ASDMAC member or ASDMAC consultant to
disclose such information to the Agency. The provision will enable exchange of
information between the Agency and ASDMAC to enable both to effectively perform
their functions.
199. New Subsection 67(4F) will allow the Agency to
disclose or communicate to an accredited laboratory information that is relevant
to the carrying on by the laboratory of research relating to the use of drugs in
sport or the safety of participants in sporting competitions. Similarly, it
will allow an employee of an accredited laboratory to disclose or communicate
such information to the Agency. The provision will enable exchange of
information between the Agency and an accredited laboratory to support
analytical research the laboratory might be undertaking, provided the identity
of the athlete cannot be deduced from the information provided by the Agency.
The Agency will be able to provide information about samples provided by a
single athlete over time so that the laboratory could conduct longitudinal
studies to assist development of detection protocols for endogenous substances
that may be indicators of drug usage.
200. New Subsection 67(4G) will
allow the Agency to disclose to a sporting administration body information about
the results of research undertaken by, or supported by, the Agency, so long as
the identity of a person whose sample has been tested cannot be deduced from
information provided by the Agency. This provision will enable the Agency to
provide drug testing statistics, such as the number of samples that contain a
particular scheduled drug that may not be a scheduled drug under the sporting
administration body’s anti-doping rules. This information will be of use
to a sporting administration body in determining if use of the scheduled drug is
a potential problem that should be addressed by the sporting administration
body’s doping policy.
Item 86 - Subsection
67(5) - Disclosure of confidential information
201. The item
will insert a new definition in Subsection 67(5). The item will establish the
meaning of ‘ASDMAC consultant’ for the purposes of Section
67.
Item 87 - Subsection 67(5) - Disclosure of
confidential information
202. The item will insert a new
definition in Subsection 67(5). The item will establish the meaning of
‘criminal proceedings’ for the purposes of Section
67.
Item 88 - Subsection 67(5) - Disclosure of
confidential information
203. The item will confirm that
references in Section 67 to ‘this Act’ include a drug testing scheme
as established under new Section 11 proposed for introduction by Item
49.
204. This item will provide that the Agency may receive information from the Australian Customs Service (ACS) relating to the importation or attempted importation of scheduled drugs, and use that information in the performance of its drug testing functions. Complementary amendments are required and will be made to the Customs Administration Act 1985 that will empower the ACS to provide this information to the Agency.
205. New Subsection 67AA(1) will provide that for the purposes of Section 16
of the Customs Administration Act 1985 information held by the ACS which
relates to the importation or attempted importation into Australia of scheduled
drugs is information that can be passed to, and used by, the Agency for the
purposes of the Agency’s drug testing functions, subject to certain
conditions. The proposed conditions are that ACS is satisfied that
either:
• the importation or attempted importation contravenes a law of
the Commonwealth. Specifically, this will cover drugs that are both scheduled
drugs for the purposes of the Agency’s drug testing schemes and prohibited
imports under the relevant Australian Customs legislation (eg anabolic agents,
peptide hormones, etc); or
• there are reasonable grounds to suspect
that a competitor is responsible for the importation or attempted importation of
scheduled drugs for the purposes of the Agency’s drug testing schemes (eg
the person importing the scheduled drugs is an elite sportsperson or member of a
national or international sports team); or
• there are reasonable
grounds to suspect that a scheduled drug is for the use of one or more
competitors (eg if Customs officers believe scheduled drugs being imported by a
person are for the use of one or more competitors). The sorts of persons
Customs officers might conclude may be supplying scheduled drugs to competitors
include sports coaches, sports team doctors, sports team managers and officials,
and relatives of competitors.
206. Proposed new Paragraphs 67AA(1)(b) and (c) are included to ensure that information passed to the Agency by the ACS can be used by the Agency in the performance of its functions, and is permissible under the Customs Administration Act 1985.
207. New Subsection 67AA(2) will provide that in deciding who to request to
provide a sample, the Agency may have regard to any information it has received
from the ACS under Subsection 67AA(1). The Agency may use the information
provided to conduct testing under a drug testing scheme, under contract to
provide drug testing and/or safety checking services, when conducting testing at
the request of a sporting administration body, or conducting testing under the
provisions of an anti-doping arrangement.
208. New Subsection 67AA(3)
will make it clear that Subsection 67AA(2) does not in any way limit other
matters to which the Agency may have regard in deciding who to request to
provide a sample.
209. New Subsection 67AA(4) will provide that for the
purposes of Section 67AA ‘information’ includes a class of
information, and ‘scheduled drug’ means a drug included in a
schedule set out in a drug testing scheme.
210. This item will insert the words ‘or the ASDMAC’ after the words ‘by the Agency’ in Section 67A. The amendment will enable the ASDMAC, as well as the Agency, to give a written notice for the purposes of the performance of its functions.
211. This item will omit the words ‘sporting organisation’ (first occurring) and substitute ‘sporting administration body’ in Section 67A. The amendment will enable the Agency or the ASDMAC to give notices to relevant sporting administration bodies. This amendment will ensure consistency with a new term proposed for introduction in Subsection 2(1) by Item 24 for the purposes of the Bill.
212. This item will omit the words ‘or the regulations’ and substitute ‘the regulations or an order referred to in subsection 17G(1)’ in Section 67A. The item will ensure that the Agency and/or the ASDMAC is able to give notices under, and for the purposes of, drug testing orders described in new Subsection 17G(1) proposed for introduction by Item 49.
213. This item will omit the word ‘organisation’ (wherever occurring) and substitute ‘sporting administration body’ in Paragraph 67A(b). This amendment will ensure consistency with a new term proposed for introduction in Subsection 2(1) by Item 24 for the purposes of the Bill.
214. This item will omit the word ‘competitor’ and substitute ‘person’ in Paragraph 67B(a). The amendment reflects the need for the Agency to apply this provision in respect of drug testing conducted under a drug testing scheme (which relates to competitors) and drug testing and safety checking services provided under contract (which relates to a person or persons).
215. This item will omit the word ‘competitor’ and substitute (wherever occurring) ‘first mentioned person’ in Subparagraph 67B(b)(i). The amendment reflects the need for the Agency to apply this provision in respect of drug testing conducted under a drug testing scheme (which relates to competitors) and drug testing and safety checking services provided under contract (which relates to a person or persons).
216. This item will omit the words ‘relevant national sporting organisation’ and substitute ‘a sporting administration body, being a body that is connected with a field of sporting activity in which the first-mentioned person participates,’ in Section 67B. This amendment will ensure the Agency can notify any relevant sporting administration body about a person connected with that body who interferes with the sample collection process.
217. This item will insert an explanatory note at the end of Section 67B which refers to examples in new Subsection 4(1) proposed for introduction by Item 28 of situations in which the Agency may request a person to provide a sample.
218. This item will insert, after Section 67B, a new Section 67C which relates to disclosure to a government or government agency providing support. Section 67C will provide for the manner in which the Agency is to notify Commonwealth government agencies (eg Australian Sports Commission, etc) and State and Territory government agencies (eg State Institutes of Sport, etc) of matters arising from the Agency’s testing activities where the information relates to a competitor or person who is in receipt of direct or indirect support from the government agency.
219. Proposed Subsection 67C(1) will require the Agency to give written
notice of an entry on a drug testing scheme’s Register to a government
agency if the Agency is aware the government agency provides support to the
competitor whose name is entered on a Register. This amendment will provide
certainty that government agencies who provide support to competitors can assess
whether the matter should be investigated under the requirements of the
government agencies’ anti-doping policies.
220. In addition, the
proposed new Subsection 67C(1) will provide the Agency with the discretion to
pass on to a government agency it has notified of an entry on a Register, other
information arising from that entry. This provision will allows the Agency to
provide other information that may assist the government agency in assessing the
circumstances of the entry on a Register. Such information might include levels
of concentration of a drug that generated a positive test result, or information
about the behaviour of the competitor that led to the Agency deciding the
competitor had failed to comply with a request to provide a
sample.
221. Proposed Subsection 67C(2) will allow the Agency to disclose
to a government agency, information arising from a request of a person to
provide a sample under either the Agency’s drug testing services, or
safety checking services when those services are provided under contract, if the
Agency is aware the government agency provides support to the person to whom the
information relates. In these circumstances the Agency will be able to disclose
information to a government agency about matters, including when persons
selected for testing fail to comply with a request to provide a sample, or
interfere with the sample collection process, or when the sample provided by a
person tested under contract generates a positive test result as recognised by
the relevant sport’s anti-doping rules.
222. Under proposed new
Subsection 67C(2) it is intended that the Agency will always notify government
agencies of relevant information arising from the provision of drug testing
services under contract to national sporting organisations and national sports
leagues (eg Australian Football League, National Rugby League, etc) where those
organisations receive support from government agencies and the Agency is aware
of this fact. This will ensure that the government agencies can monitor action
taken by the national sporting organisations and leagues. The government
agencies can then determine if the action is consistent with the requirements
set down in conditions of funding and support that exist between the relevant
government agency and the relevant national sporting organisation or
league.
223. Under proposed new Subsection 67C(2) it is also intended
that the Agency will notify government agencies of relevant information arising
from the provision of drug testing services under contract for international
sporting organisations and those organisations receive support from government
agencies and the Agency is aware of this fact. However, when conducting
contract testing for international sporting organisations, the anti-doping rules
of the international sporting organisation do not always provide for
notification to an Australian government agency.
224. Proposed Subsection
67C(3) will provide definitions of ‘government’ and
‘government agency’ that will apply for the purposes of the new
Section 67C.
225. This item will insert a new Subsection 70(3) that provides that for the purposes of Section 70 a reference to ‘this Act’ includes a drug testing scheme, but does not include a provision of a drug testing scheme that empowers the Agency to make drug testing orders referred to in new Subsection 17G(1) proposed for introduction by Item 49. The amendment will ensure an appropriate level of executive control in relation to the writing of drug testing orders.
226. This item will insert a new Subsection 72(2) that provides that ‘an ASDMAC member’ will not be liable to an action or other proceeding for damages for, or in relation to, an act done or omitted to be done in good faith in the performance or purported performance of any function, or in the exercise or purported exercise of any power of the ASDMAC’. This amendment will provide appropriate protection from civil actions for the members of the ASDMAC.
227. This item will provide direction for transition between the Australian Sports Drug Agency Act 1990 and the proposed amendments within the Australian Sports Drug Agency Amendment Bill 1998.
228. This amendment will provide that a request for a sample or matters arising out of, or in connection with, such a request made prior to the commencement of amendments proposed by the Bill, will be processed under the provisions of the existing Australian Sports Drug Agency Act 1990.
229. This item will provide that amendments of Sections 47 and 50 of the
Australian Sports Drug Agency Act 1990 proposed for introduction by Items
68 and 69 will only apply in relation to plans approved by the Minister after
the commencement of this Bill. This will mean that any strategic or operational
plans prepared by the Agency and approved by the Minister prior to the
commencement of the Bill will be required to be tabled in accordance with
existing Sections 47 and 50.