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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SPORT INTEGRITY AUSTRALIA AMENDMENT (WORLD ANTI-DOPING
CODE REVIEW) BILL 2020
REPLACEMENT EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Youth and Sport, Senator the Hon Richard
Colbeck)
THIS MEMORANDUM REPLACES THE EXPLANATORY MEMORANDUM
PRESENTED TO THE SENATE ON 26 AUGUST 2020 AND RESPONDS TO
CONCERNS RAISED BY THE PARLIAMENTARY JOINT COMMITTEE ON
HUMAN RIGHTS IN REPORTS 11 AND 13 OF 2020, DATED 24 SEPTEMBER
2020 AND 13 NOVEMBER 2020 RESPECTIVELY.
SPORT INTEGRITY AUSTRALIA AMENDMENT (WORLD ANTI-DOPING
CODE REVIEW) BILL 2020
OUTLINE
The Sport Integrity Australia Amendment (World Anti-Doping Code Review) Bill
2020 (Bill) aligns Australia's anti-doping legislation with the revised World
Anti-Doping Code (Code) and International Standards (Standards) that come into
force on 1 January 2021.
Australia's anti-doping legislation gives effect to its international obligations under
the UNESCO International Convention against Doping in Sport (Convention). The
Convention requires States Parties to implement arrangements that are consistent with
the principles of the Code. The Code provides the framework for the operation of
global harmonised rules and regulations.
The international sporting community, including the International Olympic
Committee and international sporting federations who are signatories to the Code, are
committed to updating their anti-doping policies to reflect the revised Code. At the
same time, the 180 governments who have ratified the Convention, including
Australia, are obligated to align their arrangements with the principles of the revised
Code.
Sport Integrity Australia is the Australian Government agency that focuses on the
elimination of doping in sport, thereby contributing towards the overall integrity of
Australian sport and the health of those who compete in sport. Sport Integrity
Australia's powers and functions are specified in the Sport Integrity Australia Act
2020 (Act) and the Sport Integrity Australia Regulations 2020 (Regulations),
including the National Anti-Doping (NAD) Scheme, which comprises Schedule 1 to
the Regulations.
Sport Integrity Australia implements Code-compliant programs and activities that
encompass deterrence (education and awareness), detection (testing and
investigations) and enforcement (management of cases involving possible
Anti-Doping Rule Violations (ADRVs)). Sport Integrity Australia works closely with
Australia's national sporting organisations (NSOs) to implement these
arrangements. As a condition of receiving Australian Government funding or
recognition, Australia's NSOs are required to have an anti-doping policy that
complies with the Code as well as acknowledging Sport Integrity Australia's powers
and functions under the Act and NAD scheme.
All NSO anti-doping policies replicate the essential parts of the Code. This includes
the provisions for the sanctioning of athletes and support persons who are found to
have committed an ADRV. Penalties (sanctions) for ADRVs are not criminal
penalties but involve ineligibility to participate in sport for a certain period,
disqualification of results and the forfeiture of any medals, points, and prizes.
In late 2017, the World Anti-Doping Agency (WADA) initiated a comprehensive
review of the Code. This review included an extensive four stage consultation
process allowing all stakeholders, including members of the international anti-doping
community - international sporting federations, national anti-doping organisations,
sporting organisations and governments - to discuss proposed revisions to the
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Code. The Australian Government participated in this review and provided feedback
and comments on draft iterations of the Code at each stage of the review. To
formulate its position, the Government consulted with NSOs, the Australian Sports
Anti-Doping Authority (now moved into Sport Integrity Australia), the Australian
Sports Drug Medical Advisory Committee, Sport Australia, and recognised Australian
anti-doping experts.
Revisions to the Code arising from the review were adopted by the international
anti-doping community at the World Conference on Doping in Sport in Katowice,
Poland on 6 November 2019.
To ensure the continued operation of a globally harmonised anti-doping framework,
international sporting federations and governments are now required to amend their
own anti-doping frameworks to align with the revised Code and Standards by
1 January 2021. As a signatory to the Convention, Australia is also obligated to
amend its anti-doping arrangements to align with the principles of the Code.
Most of the changes to give effect to the revised Code will need to be made to the
Regulations and to anti-doping policies of NSOs. However, some amendments to the
Act are required to ensure that the Regulations can give effect to the Code. With
these amendments, NSOs will be able to meet their anti-doping obligations to both
their international sporting federation and as a condition of Australian Government
funding through a single Code-compliant anti-doping policy.
The Bill amends the Act to implement the following Code revisions:
Introduce a new category of person - 'non-participant' who may be subject to
the NAD Scheme.
Provide the Sport Integrity Australia Chief Executive Office more discretion
to not publish the details of a violation where it was committed by an athlete
who competes for recreational purposes, or the CEO is satisfied the person
does not have the mental capacity to understand the anti-doping rules.
Broaden the situations where the Sport Integrity Australia CEO may respond
to public comment on matters that are not finalised.
Outside of the Code revisions, the Bill also amends the definition of athlete to include
persons who competed in sport within the last six months to remove doubt that the
definition could be interpreted narrowly to only include those persons who currently
compete in sport. The Bill also makes consequential amendments to the National
Sports Tribunal Act 2019 (NST Act) to provide a non-participant the authority to
apply to the National Sports Tribunal (NST) for arbitration of a dispute arising under
an anti-doping policy.
The NST Act currently only allows athletes and support persons to apply to the NST
for arbitration of an anti-doping dispute - which reflects the scope of individuals
subject to anti-doping arrangements under the Act. The proposed consequential
amendments ensure that arbitration is available for any person that is subject to a
sporting administration body's anti-doping policy, including athletes, support persons,
and non-participants.
Financial Impact Statement
There is no financial impact associated with this Bill.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
SPORT INTEGRITY AUSTRALIA AMENDMENT (WORLD ANTI-DOPING
CODE REVIEW) BILL 2020
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
Australia's anti-doping legislation gives effect to its international obligations under
the binding UNESCO International Convention against Doping in Sport
(Convention). The Convention requires States Parties to implement arrangements that
are consistent with the principles of the World Anti-Doping Code (Code). The Code
is an international agreement that provides a framework for the operation of
harmonised global anti-doping policies, rules, and regulations.
Sport Integrity Australia is Australia's designated National Anti-Doping Organisation
(NADO). Sport Integrity Australia's powers and functions are specified under
the Sport Integrity Australia Act 2020 (Act) and the Sport Integrity Australia
Regulations 2020 (Regulations), including the National Anti-Doping (NAD)
scheme. The NAD scheme underpins Sport Integrity Australia's implementation of a
co-ordinated and Code compliant anti-doping program that encompasses deterrence
and detection, and the results management of cases involving possible breaches of
anti-doping rules.
Sport Integrity Australia works with Australia's national sporting organisations
(NSOs) to implement Code compliant anti-doping arrangements. As a condition of
receiving Australian Government funding or recognition, Australia's NSOs are
required to have an anti-doping policy that complies with the Code as well as
acknowledging Sport Integrity Australia's powers and functions under the Act and
NAD scheme.
Following a two-year international review, revisions to the Code and associated
International Standards (Standards) were adopted by the international anti-doping
community - comprising international federations, national anti-doping organisations
and Governments who have ratified the Convention - at the World Conference on
Doping in Sport in Katowice, Poland on 6 November 2019.
The review involved four phases of consultation where all stakeholders were invited
to make submissions. The consultation process was open for all to participate. Over
400 submissions were received from 80 stakeholders throughout the process.
Most changes to give effect to the revised Code will need to be made to the
Regulations and to anti-doping policies of NSOs. However, some amendments to the
Act are required to ensure that the Regulations can give effect to the Code.
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Measures in the Bill include:
Broadening the scope of individuals who may be subject to the NAD Scheme
to include a person who is not an athlete nor support person, but is subject to a
sporting administration body's anti-doping policy,
Providing the Sport Integrity Australia CEO's discretion to not publicly
publish the details of an ADRV where the CEO is satisfied that the athlete
competes for recreational purposes, or the person does not have the mental
capacity to understand the anti-doping rules, and
Allowing the Sport Integrity Australia CEO to publicly respond to address
misinformation where the comment is based on information that can be
attributed to an athlete.
Separate to Code revisions, the Bill also extends when a person is an athlete under the
Act to include the six-month period from the last time that person competed in sport.
Human rights implications
New Category of Persons - 'Non-Participant'
This amendment engages:
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) which states that no one shall be subject to arbitrary or unlawful
interference with privacy, family, home or correspondence, or unlawful
attacks on honour or reputation.
Article 6 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR) which includes the right to gain a living by work that is
freely chosen.
Article 14 of the ICCPR which provides the right to a fair and public hearing.
As a result of the amendment, there may be situations where 'non-participants' are
subject to the NAD Scheme when they otherwise would not have been. Consequently,
non-participants may be subject to the powers of Sport Integrity Australia, such as
complying with a disclosure notice, if it suspects that person has committed an
ADRV. Further, where a non-participant commits an ADRV it may affect that
person's ability to find work in their field within a sporting administration body.
The amendment is considered reasonable and proportionate to both Article 17 of the
ICCPR, and Article 6 of the ICESCR. Doping is a significant threat to sport integrity
and the health and wellbeing of athletes. The amendment addresses a significant gap
in the current Code's jurisdiction where persons with the authority to facilitate doping
can go without appropriate sanction under the Code, as demonstrated by the
state-sponsored Russian doping scandal. Such individuals are equally culpable as an
athlete or support person in the commission of doping, and it is appropriate they are
subject to certain anti-doping rules.
Appropriate restrictions exist to ensure non-participants are only exposed to relevant
provisions of the Code. For example, non-participants are only subject to provisions
of the Code aimed at deterring doping facilitation. This includes trafficking or
administration of prohibited substances or methods, tampering with doping control,
complicity in the commission of doping, prohibited association with known doping
facilitators, and retaliation against the report of possible doping. Non-participants will
not be subject to whereabouts requirements, testing and sample collection, or commit
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a violation if they possess or use a prohibited substance or method. In addition, the
Code notes that the requirement for a person to be bound an anti-doping policy is
subject to applicable laws, such as employment law.
Non-participants subject to the NAD Scheme are afforded the same rights as athletes
and support persons under the Act. This includes the right to be notified in writing
about a possible breach of the anti-doping rules, and the opportunity to provide a
written submission in response to that notification. In addition, the same safeguards to
issue a disclosure notice exist for a non-participant, that is, the Sport Integrity
Australia CEO must have a reasonable belief of a possible ADRV before the CEO can
issue a disclosure notice.
Consequential amendments to the National Sports Tribunal Act 2019 (NST Act) as a
result of the amendment to the Act to introduce the 'non-participant' definition
promote Article 14 of the ICCPR, which state that all people are equal before the
court and tribunals.
Section 22 of the NST Act currently only allows athletes or support persons to apply
to the National Sports Tribunal (NST) for arbitration of a dispute arising under an
anti-doping policy.
The amendments to the NST Act allow non-participants, as well as athletes and
support persons, to apply to the NST for arbitration of a dispute arising under an
anti-doping policy. This provides non-participants with an accessible and affordable
option to have their matter heard by a tribunal that is institutionally and operationally
independent from their sporting administration body.
Discretion to not publish the details on an ADRV
This amendment promotes Article 22 of the Convention on the Rights of Persons with
Disabilities which states that no persons with disabilities shall be subject to arbitrary
or unlawful interference with privacy or to unlawful attacks on his or her honour and
reputation.
The Bill amends the Act to provide the Sport Integrity Australia CEO a discretion to
not publish the details of an ADRV where it is committed by a person who, to the
satisfaction of the CEO, does not have the mental capacity to understand the
anti-doping rules. This reflects revisions to the Code that recognise it may not be
appropriate to publish the details of the ADRV where the person did not have the
mental capacity to understand the anti-doping rules.
The Code recognises that individuals with an intellectual disability can be vulnerable
and may be subject to influence from doping facilitators or may not necessarily
understand the anti-doping rules. As such, it is not appropriate to publish the details of
an ADRV, and risk ruin of their reputation, where that person was exploited or did not
understand that what they did was in breach of anti-doping rules.
Responding to public comment - Section 68E
The amendment to Section 68E engages Article 17 of the ICCPR.
Objective of the measure
A key objective of the Code is to ensure the anti-doping system (designed to protect
athletes' right to fair competition) is respected and protected. This is reflected in the
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proposed measure relating to public comment in the Bill. Where information, and
particularly misinformation, is released by the athlete or their representative, or in the
case of the amendment, based on information provided by that person, the CEO must
have the ability to respond to ensure that accurate and truthful information is available
to the public. This is crucial to preserve the integrity of the anti-doping system. While
there is no obligation to comment, the opportunity to provides the CEO with an
avenue to provide factual corrections where incorrect information, particularly in the
media, threatens to undermine the process, the perception of fairness, or the rights of
athletes.
Proportionality of the measure
Section 68E, as amended by the measure, remains proportionate and safeguards the
privacy of the participant or non-participant as any public response by the CEO is
restricted to the subject matter of the information released by the athlete, their
representative or someone associated with them. Importantly, it does not give the
CEO scope to comment on any or all aspects of the case, and the CEO may not
initiate the comment - only respond. Other than not responding at all, which could
result in public circulation of information which is misleading and potentially
harmful, there is no less restrictive way to achieve the objective and comply with the
mandatory guiding principle of the Code.
What type of information is likely to be disclosed?
The Parliamentary Joint Committee on Human Rights raised concerns at several
hypothetical examples or types of information which the CEO may disclose, including
the use of medication or intersex status of the athlete to a sports doping allegation. In
direct response to the example provided, it is important to note that the intersex status
of an athlete has no part to play in the anti-doping process. Whilst it is a topic
currently challenging sport and sporting organisations, the issue of intersex and
transgender athletes is not within scope of anti-doping organisations and therefore is
not a matter the CEO is permitted to disclose (if it was even known at all) under this
measure. Rather, concerns around intersex athletes relate to participation issues that
are for sporting organisations to determine.
Noting the measure only extends the situations in which the CEO can comment, and
does not expand the parameters of the public comment as it presently stands, the most
likely information disclosed would include the name of the athlete or athlete support
person, and the factual status of the process to determine an alleged anti-doping rule
violation. For example, this may include claims regarding the sample collection
process, or status of the B sample testing and the disciplinary process. Where a matter
involves an adverse analytical finding, it is possible the type of information confirmed
by the CEO (in response to public comment) will include the prohibited substance the
athlete is alleged to have used (as opposed to details relating to personal medications
or medical treatment).
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Conclusion
This Bill is compatible with human rights as it promotes rights, and to the extent that
it limits rights, these limitations are reasonable, necessary and proportionate to
achieving a legitimate objective.
Senator the Hon Richard Colbeck, the Minister for Youth and Sport
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SPORT INTEGRITY AUSTRALIA AMENDMENT (WORLD ANTI-DOPING
CODE REVIEW) BILL 2O2O
NOTES ON CLAUSES
Clause 1 - Short Title
Clause 1 provides for the short title of the Act to be the Sport Integrity Australia
Amendment (World Anti-Doping Code Review) Act 2020.
Clause 2 - Commencement
Clause 2 provides that the Act commences on a single day to be fixed by
proclamation. However, if the provisions do not commence within the period of six
months beginning on the day this Act receives Royal Assent, they commence on the
day after the end of that period.
Clause 3 - Schedule(s)
This clause provides that legislation that is specified in a Schedule to this Act is
amended or repealed as set out in the applicable items in the Schedule concerned, and
any other item in a Schedule to this Act has effect according to its terms.
8
SCHEDULE 1 -- AMENDMENTS
Part 1 - Main amendments
Sport Integrity Australia Act 2020
Part 1 amends the Sport Integrity Australia Act 2020 (Act) to reflect revisions to the
World Anti-Doping Code (Code) based on the extensive two-year review of the Code
undertaken by the World Anti-Doping Agency, and also amends the definition of
athlete to give effect to the intended operation of the National Anti-Doping (NAD)
Scheme.
Item 1 - Section 4 (definition of athlete)
Doping is now incredibly sophisticated and harder to detect, and there are examples
where it is only uncovered after an athlete has retired and no longer competes. It is
important that an anti-doping organisation can continue to investigate a possible
ADRV against an athlete for a limited period after the athlete has stopped competing.
The Act currently defines 'athlete' as a person who competes in sport. The definition
could be interpreted narrowly, to only include a person who currently competes in
sport and exclude those persons who previously competed in sport. This interpretation
would be detrimental to the NAD Scheme's operation and restrict the ability of Sport
Integrity Australia to investigate possible ADRVs.
This item amends the definition of 'athlete' to include, as well as a person who
competes in sport, any person that has competed in sport at any time in the last six
months - so long as that person is subject to the NAD Scheme.
Item 2 - Section 4 (definition of non-participant)
Item 2 inserts a definition for the new concept of a 'non-participant', as a person who
is neither an athlete nor a support person, and who is bound by a sporting
administration body's anti-doping policy.
The current Code only subjects 'athletes' and 'support persons' to anti-doping
arrangements. However, the Russian doping scandal demonstrated there are persons
outside the definition of 'athlete' and 'support person' who play pivotal roles to
facilitate doping in sport. These persons may include board members, directors,
officers, and specified employees of anti-doping organisations, as well as delegated
third-party testing agencies.
The revised Code acknowledges this gap in anti-doping arrangements and provides
anti-doping organisations authority to subject such persons to the Code, noting this
remains subject to applicable employment laws.
9
Item 3 - Section 8A
Item 3 amends the simplified outline of Part 2 of the Act to include the new concept
of 'non-participants' in the scope of the NAD Scheme.
Item 4 - After subparagraph 10(1)(a)(ii)
Item 4 allows the Sport Integrity Australia CEO to amend the NAD Scheme in
relation to the classes of non-participants that are subject to the NAD Scheme,
consistent with the existing power to amend the NAD Scheme in relation to athletes
and support persons.
Item 5 - Section 13 (heading)
Item 5 amends the heading of section 13 to include 'non-participants', alongside
'athletes' and 'support persons', to maintain a consistent format for headings which
include those persons subject to the NAD Scheme.
Item 6
Item 6 provides authority for the NAD Scheme to specify that either all
non-participants, or one or more specified classes of non-participants, are subject to
the NAD Scheme.
The revised Code broadens the scope of individuals who may be subject to the
anti-doping rules to include those involved with sport, but do not meet the definition
of 'athlete' or 'support person'. This may include board members, directors, officers,
and specified employees of sporting administration bodies, as well as delegated third
party testing agencies.
This is largely in response to the systemic state-sponsored doping program uncovered
in Russia where many of the individuals who facilitated the scheme were outside the
jurisdiction of the Code.
It is important to note that the Code states that a non-participant is not subject to all
requirements of the Code. For example, a non-participant is not required to submit to
sample collection and testing, and is only subject to violations of Code Articles 2.5
(tampering), 2.7 (trafficking), 2.8 (administration of a prohibited substance or
method), 2.9 (complicity), 2.10 (prohibited association), and 2.11 (retaliation).
In addition, the obligation to require an employee of a sporting administration body to
be bound by an anti-doping policy is subordinate to other applicable laws that may
preclude such a requirement.
Item 7 - Paragraph 13(1)(fa)
Item 7 repeals paragraph 13(1)(fa) to remove the authority for the NAD Scheme to
require Sport Integrity Australia's CEO to notify an athlete or other person that
association, in a professional or sport related capacity, by an athlete or other person
with a support person described in Article 2.10.1, 2.10.2, or 2.10.3 of the Code may
be a possible violation of the anti-doping rules.
10
This authority is no longer required as the revised Code removes the requirement for
an anti-doping organisation to notify an athlete or other person that they may be in
violation of the anti-doping rule before issuing a formal notification to assert a
prohibited association ADRV.
Items 8 - 18, 20 - 23, and 25
These items make consequential amendments throughout the Act to insert 'non-
participant' wherever 'athlete' and 'support person' appear to ensure formatting
consistency that all classes of persons subject to the NAD Scheme are mentioned
where necessary.
Item 19
Item 19 broadens the Sport Integrity Australia CEO's discretion to disclose details of
a finalised ADRV in the Violation List on Sport Integrity Australia's website to
reflect the revised disclosure arrangement in the Code.
The Code places an obligation on anti-doping organisations to disclose the name of
the person who committed the violation, the sport, the particular ADRV committed,
the prohibited substance or method (if any) and the consequences imposed within
twenty days of the matter's finalisation. The Code recognises that, in certain
circumstances, it is not appropriate to publicly disclose such details. This includes
where the individual is under 18 years of age and it is the first ADRV committed by
the individual, where disclosing the information could prejudice a current
investigation into an ADRV, and where WADA has authorised the non-disclosure of
the information.
The revised Code expands an anti-doping organisation's discretion to not publicly
disclose the information to include where the individual is a recreational athlete (and
has not in the five years prior to the violation been a national-level or international-
level athlete), or where it is considered that the individual does not have the mental
capacity to understand the anti-doping rules.
Item 24
Section 68E of the Act allows the Sport Integrity Australia CEO to disclose protected
information if:
the information relates to an athlete or support person or the representative of
an athlete or support person, and
the public comments have been attributed to the athlete or support person, or a
representative of the athlete or support person, and
the disclosure is for the purpose of Sport Integrity Australia responding to the
comments.
Section 68E reflects obligations under Article 14.3.5 of the Code (14.3.6 of the
revised Code). The revised Code expands when an anti-doping organisation may
respond to public comments to address misinformation, to include where the
information is not disclosed by the athlete or support person themselves, but the
information can still be attributed to the athlete or support person. For example, where
11
the athlete or support person discloses protected information to another person, who
then discloses that information more publicly.
Item 24 amends section 68E to reflect broadened circumstances in the revised Code
and include the ability to respond to comments from non-participants.
Sport Integrity Australia is a recognised anti-doping organisation in the global anti-
doping framework. Consequently, the Sport Integrity Australia CEO is required to
abide by the International Standard for the Protection of Privacy and Personal
Information (ISPPPI). Article 5.3(d) of the ISPPPI provides that an anti-doping
organisation may disclose personal information for other purposes, provided that
those purposes relate exclusively to the fight against doping and are found to be
relevant to that fight following an appropriately documented assessment performed by
the anti-doping organisation.
Item 26 - Application and Transitional Provisions
Paragraph 1 of Item 26 clarifies that the previous six months prior to the date of
commencement should be disregarded.
Paragraph 2 clarifies that, for the purposes of Item 19, the Sport Integrity Australia
CEO only has discretion to not publish a violation where it was committed on, or
after, commencement of the item.
Paragraph 3 clarifies that, for the purposes of Item 24, the disclosure of information
can only occur where the information was provided or attributed on or after
commencement.
Part 2 - Consequential amendments
Part 2 contains consequential amendments to the NST Act to provide the new class of
persons under the Act, 'non-participants', authority to apply to the NST for arbitration
under an anti-doping policy.
The NST Act currently restricts applications for arbitration in the Anti-Doping
Division and the Appeals Division (for anti-doping matters) to an athlete or support
person subject to an anti-doping policy that recognises the anti-doping division of the
NST. This is consistent with the classes of persons subject to the Act, which only
subjects an individual to anti-doping arrangement if that person meets the definition
of athlete or support person.
To ensure a consistent approach with the Government's decision to establish the NST
as an affordable and accessible tribunal for sporting disputes, these consequential
amendments provide authority for all persons subject to a dispute under an
anti-doping policy to apply for arbitration in the NST.
Items 27 - 47
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Items 27 to 47 amend the NST to remove references to 'athlete' and 'support person',
and replace them with a generic reference to 'person', to provide a broad authority for
any person subject to anti-doping arrangements to apply for arbitration in the NST.
Item 48 - Saving provision
Item 48 specifies that the amendments in Part 2 do not affect the validity of an
application or appeal made by an athlete or support person to the NST before the
commencement of this item.
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