House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Youth and Sport, Senator the Hon Richard Colbeck)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AMENDMENT (ENHANCING AUSTRALIA'S ANTI-DOPING CAPABILITY) BILL 2019

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Australian Sports Anti-Doping Authority (ASADA) is the Australian Government agency that focuses on the elimination of doping in sport, thereby contributing to the integrity of Australian sport, as well as the health and wellbeing of those who compete in sport.

In August 2017, the then Minister for Sport commissioned the Review of Australia's Sports Integrity Arrangements (Wood Review), as part of the development of the Government's National Sport Plan. The Wood Review was delivered to the Government in March 2018, published on 1 August 2018 and is the most comprehensive examination of sports integrity arrangements ever undertaken in Australia.

Specifically with respect to anti-doping, the Wood Review found:

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doping is more prevalent and widespread than ever among athletes at all levels;

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doping is facilitated by the increasing availability of highly sophisticated techniques that make it harder to detect

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serious and organised crime is involved in the supply of performance and image enhancing drugs; and

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the current suite of statutory protections and powers under the ASADA Act is not sufficient to facilitate ASADA's increasing emphasis on intelligence-based investigations.

The Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019 responds to the Wood Review recommendations and aims to improve the ability of ASADA to perform its functions within an increasingly complex doping environment.

Human rights implications

This Bill engages the following rights:

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Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) - right to an effective remedy.

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Article 14(2) of the ICCPR - right to presumption of innocence.

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Article 17 of the ICCPR - privacy and reputation.

Removal of the Anti-Doping Rule Violation Panel and right to appeal to the Administrative Appeals Tribunal

This Bill gives effect to the Wood Review recommendation to streamline the anti-doping rule violation (ADRV) process by removing the Anti-Doping Rule Violation Panel (ADRVP) and, by consequence, removing the right for an athlete or athlete support person to merits review in the Administrative Appeals Tribunal (AAT) prior to the matter proceeding to a formal hearing.

The Wood Review noted 'the current ADRV process is overly bureaucratic, inefficient, and cumbersome. Australia's implementation of Code-compliant ADRV procedures is one of the most complicated of any countries in the world and, as a result, it is confusing for those subject to an ADRV allegation and to their representatives.'

The ADRV process currently includes duplicative steps in the consideration of a matter that can lead to delays in its final determination. This involves approaching an athlete or support person twice to respond to what are, for all intents and purposes, the same ADRV allegations. In the first instance, the ASADA Chief Executive Officer (CEO) writes to the athlete or support person giving notice of a possible ADRV and inviting the recipient to make a submission to the ADRVP (the 'show cause notice'). ASADA then prepares material for consideration by the ADRVP, which, if satisfied that a possible ADRV has occurred, will notify the CEO and request the person be invited to provide a further submission to the ADVRP. Following receipt of a further submission (or expiry of the relevant submission period), the ADRVP will consider the matter a final time, and if the ADRVP remains satisfied that a possible ADRV has occurred, the ADRVP will make an assertion to that effect and notify the CEO, who will in turn notify the participant and the relevant sporting body of the assertion.

The Wood Review found this process to be convoluted and unnecessarily time intensive, often taking a minimum of eight weeks from the issue of a 'show cause' letter for a matter to pass through the ADRVP. The intent and effect of the proposed amendments is to expedite the participant's opportunity to have a fair hearing.

The amendments, based on the Wood Review's recommendations, remove ADRVP consideration from the ADRV process and give full responsibility to the CEO to manage a simplified process up to the point where the assertion of a possible anti-doping rule has been made. The amendments also remove a participant's right to appeal to the AAT. As with the decisions of the ADRVP, any decision of the AAT will not determine the rights and obligations of participants in relation to their sport. At most it will determine a step in the process, being the decision to advise the ASADA CEO of the possible violations. Individuals will still have recourse against a decision handed down by ASADA with an ability to seek judicial review. The actions of the CEO would rightly be scrutinised by a sport's anti-doping tribunal or the proposed National Sports Tribunal.

The proposed simplified ADRV process will be as follows:

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The ASADA CEO will review evidence and determine if there has been a possible ADRV. If the CEO determines there has been a possible ADRV, the person is notified and invited to provide a submission within 10 days.

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The ASADA CEO will review the submission provided and if they remain satisfied a possible ADRV has occurred, will make an assertion to that effect, notify the person against whom assertion has been made as well as the relevant sporting body, and make a recommendation to the sporting body as to consequences of the assertion.

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The person may then accept or contest the infraction in a tribunal.

Article 2 (3) (a) of the ICCPR is engaged by this amendment:

To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

The ADRVP was intended to provide independent oversight of ADRV allegations and act as a check on the administrative aspect of the ADRV process. Likewise, recourse to the AAT for any person unsatisfied with the ADRVP's determination provided a possible additional layer of scrutiny to ensure a robust and independent process. However, submissions to the Wood Review from both National Sporting Organisations (NSOs) and ASADA stated that, in practice, the ADRVP's involvement in the process was time-consuming, overly complicated and duplicated procedures in circumstances where stakeholders felt that any value of ADRVP oversight did not provide for an adequate counterbalance to the inefficiencies it created.

Nonetheless, while some checks and balances are removed by these amendments, the process for a person alleged to have committed an ADRV will remain an effective remedy. By removing unnecessary delays to the pre-hearing process the person is likely to have their allegation heard in a more timely fashion. In addition, the person retains their right to have their allegation heard by a tribunal, which will act as the arbiter as to whether whether an ADRV has been committed.

In this context it is important to note the ADRVP does not determine rights and obligations in so far as it may be considered a suit at law. In the anti-doping context, rights and obligations as between the athlete or support person and their sport are determined through the processes set out in the anti-doping policy of the sport by which they have agreed to abide. The role of the ADRVP is to be satisfied that, on the material provided to it by the ASADA CEO and by the athlete or support person (should they so choose), that there is a possible anti-doping rule violation, and to make such an assertion.

Pursuant to Article 8 of the World Anti-Doping Code, the rights and obligations of athletes or support persons are determined by hearing bodies established in accordance with that article. Section 41(3) of the ASADA Act explicitly provides that the ADRVP is not a hearing body within the meaning Article 8 of the World Anti-Doping Code. Currently the relevant hearing body for the vast majority of athletes and support persons is the Swiss-based Court of Arbitration for Sport. Some athletes and support persons also have the option of seeking a hearing before sport-specific tribunals. It is expected that the National Sports Tribunal (NST) will serve as a hearing body for the purposes of Article 8 for a significant number of athletes and support persons.

The establishment of the NST on the commencement of the National Sports Tribunal Act 2019 will ensure members of the Australian sporting community have access to an effective, efficient, transparent and independent specialist tribunal for the fair hearing and resolution of sporting disputes. The NST will have powers to properly inform itself, including by requiring the attendance of witnesses and the provision of documents. The NST will also not be subject to direction from any party, so that any person appearing before it can be assured of an impartial and independent hearing.

Importantly, the amendments maintain Australia's ongoing commitment under Article 3(a) of the United Nations Educational, Scientific and Cultural Organization International Convention against Doping in Sport to adopt appropriate measures at the national and international levels that are consistent with the Principles of the World Anti-Doping Code.

Amendments to the disclosure notice regime

Under the ASADA Act, the ASADA CEO may issue a disclosure notice to require a person to do one or more of the following things:

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attend an interview;

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answer questions;

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give information; and/or

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produce documents or things.

The disclosure notice regime has proven critical to ASADA's ability to detect doping cheats given the increasing reliance on effective non-analytical investigations rather than the traditional testing of urine and blood samples.

The Wood Review identifies elements of the disclosure notice regime should be enhanced, and the ASADA Enhancing Australia's Anti-Doping Capability Amendment Bill subsequently proposes the following changes to the ASADA Act:

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replacing the requirement that the CEO 'reasonably believes' that the recipient of a disclosure notice has relevant information, documents or things, with the requirement that the CEO 'reasonably suspects' the recipient has such information, etc.

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preventing the recipient of a disclosure notice claiming the privilege against self-incrimination or the privilege against self-exposure to a penalty in order not to answer a question, give information or produce a document or thing; and

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increasing the penalty for non-compliance with a disclosure notice from 30 to 60 penalty units.

These clauses are reasonable, necessary and proportionate to the legitimate aim of catching doping cheats and the persons who facilitate doping. Doping is potentially injurious to a person's health, may distort the outcome of sporting contests, and over time undermines the overall integrity of sport. Australian Governments make significant investments in sport, and that investment suffers when the integrity of a sport is compromised in this way.

Amendments to the burden of proof to issue a disclosure notice

The ASADA CEO may only issue a disclosure notice if he or she reasonably believes the person has information, documents or things that may be relevant to the administration of the National Anti-Doping (NAD) Scheme, and three ADRVP members are in agreement with this belief. The amendment would lower this burden to a reasonable suspicion threshold and, as a consequence of the previous amendment abolishing the ADRVP, remove the requirement of three ADRVP members to share the belief.

Article 17(1) of the ICCPR is engaged by this amendment:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

The Wood Review analysed the disclosure notice provisions in the ASADA Act and concluded 'the threshold of 'reasonable belief' means that disclosure notices are generally only sought, and granted (by the ADRVP), in circumstances where ASADA already has evidence that might suggest that an ADRV has taken place - for instance, in connection with an Adverse Analytical Finding'. This means ASADA is generally confined to issuing disclosure notices to those persons already believed to have committed anti-doping rule violations, rather than those persons facilitating and enabling the commission of such violations. The Wood Review noted that a more appropriate statutory threshold for the issue of a disclosure notice would be that of a reasonable suspicion.

As a means of comparison, the nature of a disclosure notice is quite different to that of, for example, a search warrant. A search warrant relevantly permits the entry into and search of specified buildings, vehicles, receptacles or places, and authorises the use of force to do so. A disclosure notice, on the other hand, does not authorise the ASADA CEO or the CEO's delegates to conduct searches of the premises or other locations pertinent to the recipient of the notice. Rather, a disclosure notice operates as a direction to the recipient to attend an interview to answer questions, or to provide information, or to produce documents or things. In light of this different, and less intrusive, purpose of a disclosure notice, it is appropriate that reasonable suspicion be the threshold for the issuing of the disclosure notice. Even so, 'suspicion' (as distinct from 'belief') is a threshold commonly used in search warrant laws in a number of jurisdictions.

Given the increasing reliance on intelligence and investigations when pursuing possible ADRVs, lowering the burden to a reasonable suspicion is a necessary, reasonable and proportionate imposition on the individual's right to privacy.

Privilege against self-incrimination in relation to disclosure notice

The disclosure notice provisions were first inserted into the ASADA Act by the Australian Sports Anti-Doping Authority Amendment Act 2013. While ASADA had been established in 2006 with a statutory investigations function, it had no ability to compel cooperation by persons of interest. ASADA investigators could only request persons of interest to attend an interview; persons would either decline the request, or agree to attend an interview and then not show up. In addition, it was becoming increasingly evident doping violations were being facilitated by persons who were not subject to the anti-doping policies of any sports - accordingly, a sport could not use its contractual powers to require such persons to cooperate with anti-doping investigations. The 2013 amendments were intended to address these problems.

The current ASADA Act places limits on ASADA's coercive powers once a disclosure notice has been issued. At present, a recipient of a disclosure notice:

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is excused from answering questions, or providing information, on the ground that the answer to the question or the information might tend to incriminate the person or expose them to a penalty (ASADA Act, s 13D(1))

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is not excused from providing a document or thing on the ground that the provision of the document or thing might tend to incriminate the person or expose them to a penalty (ASADA Act, s 13D(1A)).

The amendment would remove the privilege with respect to answering a question or providing information, in effect, harmonising ASADA's current powers across the provision of information. However, protections on use of the information remain as it may not be used against the person for any proceeding other than in connection with the ASADA Act, or an offence against 137.1 (false or misleading information) or 137.2 (false or misleading documents) of the Criminal Code Act 1995 (the Criminal Code).

Article 14(2)(g) of the ICCPR is engaged by this amendment:

Not to be compelled to testify against himself or to confess guilt.

The Wood Review found that for ASADA to effectively execute its intelligence and investigative functions, the right to claim privilege against self-incrimination in certain circumstances, as currently prescribed in the ASADA Act, should be excluded.

ASADA is the entity designated by the Australian Government to be the regulator tasked with eliminating doping in sport. However, because of the ability for a recipient of a disclosure notice to claim the privileges against self-incrimination or self-exposure to a penalty, ASADA is in the position where, the NSO to which the person belongs has greater (contractual) powers to compel that person to answer questions truthfully and to provide information, than ASADA does as the regulator. In the past, ASADA has relied on the cooperation of NSOs in exercising this contractual right to require athletes and other persons to answer questions. The amendment will mean that ASADA will no longer be entirely reliant on cooperation through private contracts, allowing the function to operate via statutory powers where cooperation may not be possible or appropriate.

Further, it is not uncommon for the doping conduct of an athlete or a support person to have been facilitated by a third party who was never, or who was not at the time, bound by the terms of a sport's anti-doping policy. Again, while ASADA can issue such a person with a disclosure notice requiring them to attend an interview to answer questions, ASADA has no ability to require them to answer questions, or to answer them truthfully.

There continue to be safeguards on the exercise of the ASADA CEO's power to issue disclosure notices. The amendments make it clear that, in the case of an individual, answers or information given, or documents or things produced, under a disclosure notice will not be admissible in any proceedings other than proceedings in connection with the ASADA Act or the Australian Sports Anti-Doping Authority Regulations 2006 (ASADA Regulations) (including proceedings before CAS, the NST or a sporting tribunal relating to sports doping or safety matters). This provision represents a reasonable and proportionate safeguard on the use of the information obtained.

In addition, s 13A(1) of the ASADA Act and clause 3.26B of the ASADA Regulations set out the requirements for disclosure notices. Relevantly, in relation to information, documents or things, the notice is required to specify:

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the kind of information that the recipient is required to provide; or

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the documents or things of the kind the recipient is required to produce.

This specificity is necessary in order to enable the recipient of the notice to understand what they are required to do to comply with the notice.

Further, s 67 of the ASADA Act contains strong protections over information obtained through the disclosure notice process. Relevantly, s 67(1) creates an offence punishable by 2 years' imprisonment, for an 'entrusted person' to disclose 'protected information' other than in the circumstances permitted by Part 8 of the ASADA Act.

An 'entrusted person' includes: the ASADA CEO, the staff of ASADA, and persons made available, or engaged, to assist the CEO. 'Protected information' is information obtained under, or for the purposes of, the ASADA legislative framework, that relates to a person (other than an entrusted person), and identifies, or is reasonably capable of identifying, the person. This clearly includes information about a person obtained through the use of a disclosure notice.

It will also continue to be the case that a disclosure notice cannot be issued to a medical practitioner unless the ASADA CEO reasonably believes that the medical practitioner is involved, in that capacity, in the commission, or attempted commission, of a possible violation of the anti-doping rules. This limitation recognises the confidential nature of the doctor-patient relationship, and the need to prevent arbitrary interferences with that relationship.

This, in effect, is a reasonable and proportional response as it brings current practice into an appropriately regulated channel with sufficient safeguards in place. Further, in an environment where organised, concerted doping has become an elevated risk, the ongoing reliance on contractual obligations in order to gather critical information and intelligence cannot be supported - particularly when the reputational risks that stem from a doping scandal are so high for sport.

Protection from civil actions

Currently, the ASADA Act includes a suite of regulatory protections for the ASADA CEO, staff and engaged personnel to protect them against civil action when they have acted in good faith. This protects ASADA in its role when presenting evidence or material against an athlete or support person at a hearing, issuing an infraction notice or making recommendations about a provisional suspension.

The amendments would extend this protection to NSOs, or a person performing the work or services for the NSO.

The amendment engages Article 2 (3) (a) of the ICCPR:

To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

The Wood Review identified that under the sporting administration body rules in the NAD Scheme, NSOs are required to perform similar ADRV functions to ASADA. While the ASADA Act protects the ASADA CEO, staff and engaged personnel from civil action in their role of performing ADRV functions, NSOs do not experience this level of statutory protection against civil action when performing similar ADRV functions.

Given anti-doping matters are becoming complex in nature, the role of NSOs in the ADRV process continues to be an integral part of the investigative process. However, a lack of statutory protection in the event of civil action presents as a potential barrier for NSOs.

The immunity proposed in s 78(5) is limited to actions or proceedings for damages in relation to an act done or omitted to be done in good faith in implementing or enforcing the NSO's anti-doping policy. The types of proceedings that will not be precluded by the immunity include:

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proceedings for damages where the NSO (or its personnel) had knowingly acted beyond power (indicating the absence of good faith);

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administrative proceedings - for example, the exercise of functions under the Privacy Act 1988; and

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criminal proceedings.

The extension of the immunity is a reflection of the fact that a sport may be required to do things as a result of ASADA's exercise of its legislative functions. For example, the ASADA CEO, in accordance with the NAD scheme, advises an NSO there is evidence that an athlete has committed a non-analytical ADRV (i.e. a violation that does not involve a positive test for a prohibited substance). The NSO, acting within the terms of its anti-doping policy (the terms of which the athlete has agreed to abide by), exercises its discretion under the policy to provisionally suspend the athlete pending the hearing of the athlete's matter by a sporting tribunal. The sporting tribunal subsequently finds that it is not comfortably satisfied the athlete committed the particular ADRV. In a circumstance such as this, the NSO, having acted in good faith, should not be exposed to civil liability for having provisionally suspended the athlete in the circumstances permitted by the anti-doping policy.

The Wood Review recommended extending statutory protection against civil actions to cover NSOs and their staff in their exercise of ADRV functions. This is a reasonable response to the policy problem that ensures NSOs and their staff are protected from civil action in circumstances where anti-doping matters are becoming more complicated.

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.