Explanatory Memorandum
(Circulated by authority of the Minister for Youth and Sport, Senator the Hon Richard Colbeck)Notes on Clauses
Clause 1 - Short title
This clause provides that the Bill, once enacted, may be cited as the Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Act 2019.
Clause 2 - Commencement
Table item 1 provides for sections 1 to 3 of the Amendment Act to commence on the day the Amendment Act receives Royal Assent.
Table item 2 provides for Schedule 1, Parts 1 to 4, to commence on a date to be fixed by proclamation, but if they do not commence within 6 months of royal assent, they commence on the day after the end of that period.
Table item 3 provides for Schedule 1, Part 5 Division 1, to commence at the same time as Schedule 1, Parts 1 to 4. However, this Schedule does not commence at all if Schedule 1 to the Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Act 2019 commences at or before that time.
Table item 4 provides for Schedule 1, Part 5 Division 2 to commence immediately after Schedule 1, Parts 1 to 4. However, this Schedule does not commence at all if Schedule 1 to the Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Act 2019 commences on or before the day on which Part 1 of Schedule 1 to this Act commences.
Clause 3 - Schedule(s)
This clause provides that each Act that is specified in a Schedule to this Bill is amended or repealed as set out in the applicable items in the Schedule concerned and any other item has affect according to its terms. This is a technical provision that gives operational effect to amendments contained in the Schedules. Schedule 1 amends the Australian Sports Anti-Doping Authority Act 2006 and the Australian Sports Commission Act 1989.
SCHEDULE 1 - AMENDMENTS
Part 1 - Anti-Doping Rule Violation Panel
Amendments in Part 1 streamline the anti-doping rule violation (ADRV) process by removing the Anti-Doping Rule Violation Panel (ADRVP) and, by consequence:
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- removing an athlete's and athlete support person's right to appeal to the Administrative Appeals Tribunal (AAT) before the matter proceeds to a formal hearing; and
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- removing ADRVP oversight of the disclosure notice regime.
The current ADRV process was found to be convoluted and time intensive and the intent of the amendments is to expedite the participant's opportunity to have a fair hearing. Removal of the ADRVP consideration from the ADRV process will give full responsibility to the CEO to manage a simplified process up to the point where the assertion of an anti-doping rule has been made.
Australian Sports Anti-Doping Authority Act 2006
Item 1: Section 3
This item removes the words 'the Anti-Doping Rule Violation Panel (known as the ADRVP) and' as a consequence of the ADRVP being abolished.
Item 2: Section 3
This item removes the description of the Anti-Doping Rule Violation Panel and its functions from the simplified outline of the Act.
Item 3: Section 4
This item repeals the definitions of 'ADRVP', 'ADRVP Chair' and 'ADRVP member'.
Item 4: Section 4 (definition of sporting administration body )
This item removes the reference to the ADRVP in the definition of sporting administration body.
Item 5: Section 4 (definition of vacancy )
This item removes paragraph (aa) from the existing definition of vacancy and to reflect the abolition of the ADRVP.
Item 6: Subsection 5(1A)
Section 5 is concerned with addressing the occurrence of a vacancy of an office in the ADRVP or ASDMAC.
This item repeals subsection 5(1A), which refers to the ADRVP.
Item 7: Section 8A
This item removes the words 'and review' from the simplified outline as a consequence of the ADRVP being abolished.
Item 8: Paragraph 13(1)(h)
Section 13 sets out the matters that the NAD scheme is required to address. Paragraph 13(1)(h) authorises the ADRVP to make assertions relating to investigations referred to in paragraph 13(1)(f).
This item removes 'ADRVP' and replaces it with 'CEO'.
Item 9: Paragraph 13(1)(i)
This item repeals paragraph 13(1)(i), which requires the ADRVP to notify the CEO of an assertion.
Item 10: Subparagraph 13(1)(k)(i)
This item repeals subparagraph 13(1)(k)(i), which currently references paragraph 13(1)(i) and replaces it with '(i) such assertions; and'.
Item 11: Paragraph 13(1)(m)
This item removes the reference to paragraph 13(1)(i), which is repealed by Item 9.
Item 12: Paragraph 13A(1A)(b)
This item removes 'rules; and' and replaces it with 'rules.' This amendment is consequential to the repeal of paragraph 13A(1A)(c) by the next item.
Item 13: Paragraph 13A(1A)(c)
Section 13A deals with the power of the ASADA CEO to authorise the giving of a notice that requires the production of information or documents.
This item repeals the paragraph requiring three ADRVP members to agree in writing that the belief formed by the CEO in giving a notice for the production of information or documents is reasonable. This paragraph is repealed due to the abolition of the ADRVP.
Item 14: Subsection 14(1)
This item amends subsection 14(1) so that reference to subsections (2) to (4) now reads as a reference to subsections (2) and (3). This is due to the repeal of subsection 14(4) by Item 16.
Item 15: Subsection 14(3)
This subsection deals with the requirements to notify an athlete or support person where an assertion has been made relating to an investigation of a possible violation of the anti-doping rules.
This item removes all references to the ADRVP and replaces them with the ASADA CEO, as the authority to make an assertion will now be exercised by the CEO upon the ADRVP being abolished.
Item 16: Subsection 14(4)
This item repeals subsection 14(4), which provides for a right of review to the AAT of a decision to make an assertion by the ADRVP.
Item 17: Paragraph 15(2)(d)
This paragraph is amended to give effect to the transfer of the authority to make assertions from the ADRVP to the CEO. Accordingly, reference to the ADRVP is omitted and reference to the CEO is substituted.
Item 18: Paragraph 18(aa)
Section 18 provides that the NAD scheme may make provision for the listed bodies to make decisions of an administrative character in relation to a matter.
This item repeals the paragraph to remove reference to the ADRVP.
Item 19: Paragraph 21(1)(kb)
Paragraph 21(1)(kb) gives the CEO a function to make resources and facilities available to the ADRVP to assist in the performance of the ADRVP's functions.
This item repeals that paragraph.
Item 20: Subsection 24A(2)
Subsection 24A(2) provides that an ADRVP member is not eligible for appointment as the CEO.
This item repeals subsection 24A(2) consequential to the abolition of the ADRVP.
Item 21: Part 5
Part 5 establishes the Anti-Doping Rule Violation Panel and provides for its functions, appointment of ADRVP members, the terms and conditions of their employment and the holding of meetings.
This item repeals Part 5, which will have the effect of abolishing the ADRVP.
Item 22: Subparagraph 50F(e)(iv)
This item repeals the subparagraph, which currently provides that members of the ADRVP are officials of ASADA for the purposes of the finance law.
Item 23: Subparagraph 50F(e)(ii)
This item is consequential to the amendment made by the next item, which repeals subparagraph 50F(e)(iv).
Item 24: Subparagraph 50F(e)(iv)
This item repeals subparagraph 50F(e)(iv), with the effect that the purposes of the listed entity no longer will include the functions of the ADRVP.
Item 25: Subsection 54(2A)
Subsection 54(2A) provides that a member of the ADRVP is not eligible for appointment as an ASDMAC member.
This item repeals subsection 54(2A) consequential to the ADRVP being abolished.
Item 26: Subsection 60(2)
Subsection 60(2) prevents an ASDMAC member providing information, advice or support to, or evidence on behalf of, a person who has a matter before the ADRVP, a sporting administration body or a court or tribunal without the CEO's permission.
This item would remove the reference to the ADRVP.
Item 27: Section 67A
Section 67A is the simplified outline of the secrecy and information management provisions in the ASADA Act.
This item removes reference to the ADRVP in that outline.
Item 28: Paragraph 68(d)
Section 68 lists the circumstances in which an entrusted person may disclose protected information.
This item repeals paragraph 68(d), which provides for information to be disclosed for the performance of the functions or duties, or the exercise of powers, of the ADRVP.
Item 29: Paragraphs 69(c) and (d)
This item removes reference to a person engaged by the Commonwealth to perform services for the ADRVP in the definition of an entrusted person.
Item 30: Paragraph 69(fa)
This item removes reference to an ADRVP member as being an entrusted person.
Item 31: Subsection 78(1B)
Subsection 78(1B) provides ADRVP members with protection from civil proceedings.
This item repeals subsection 78(1B), consequential on the ADRVP being abolished.
Item 32: Paragraphs 78(3)(a) and (b)
Item 33: Paragraphs 78(4)(a), (b) and (c)
These items remove references to the ADRVP from the immunity from civil liability provisions, consequential to the abolition of the ADRVP.
Item 34: Paragraph 78(4)(da)
This item repeals paragraph 78(4)(da), which affords protection against civil proceedings resulting from an act done in good faith where that act was the making of a statement to, or the giving of a document to, the ADRVP in connection with the performance of its functions under the NAD scheme.
Item 35: Saving and Transitional Provisions
This item provides saving and transitional provisions in relation to Parts 8 and 9 of the ASADA Act as well as records or documents.
Secrecy
Subitem 35(1) provides that Part 8 of the ASADA Act as in force immediately before the commencement of the item continues to apply on and after commencement of these amendments in relation to any person who was an entrusted person by virtue of being a member of the ADRVP, or a person engaged by the Commonwealth to perform services for the ADRVP, or a designated associate of a person or partnership engaged by the Commonwealth to perform services for the ADRVP.
Protection from Civil Actions
Subitems 35(2) - (4) provide that despite the repeal of subsection 78(1B), that subsection, as in force immediately prior to the commencement of the item, continues to apply on and after that commencement date to a former ADRVP member in relation to an act done or omitted to be done before that commencement.
Despite its repeal, subsection 78(3) of the ASADA Act, continues to apply in relation to a publication or disclosure in good faith in the performance or purported performance of any function of the ADRVP or in the exercise or purported exercise of any power of the ADRVP made prior to its repeal.
Despite its repeal, subsection 78(4) of the ASADA Act, continues to apply in relation to the making of a statement to, or the giving of a document or information to, the ADRVP at any time prior to its repeal.
Records or documents
Subitem 35(5) provides for the transfer of all documents in the possession of the ADRVP to the CEO on commencement of these amendments.
Australian Sports Commission Act 1989
Item 36: Section 57A (heading)
This item removes reference to the ADRVP in the heading of section 57A based on the ADRVP being abolished.
Item 37: Paragraph 57A(1)(b)
This item amends the structure of the paragraph consequential to the repeal of paragraph 57A(1)(c) by the next item.
Item 38: Paragraph 57A(1)(c)
This item repeals paragraph 57A(1)(c), which allows the Australian Sports Commission to disclose information to the CEO of ASADA where it is relevant to the performance of the functions of the ADRVP. The paragraph is repealed consequential to the ADRVP being abolished.
Item 39: Transitional provision
This item provides that paragraph 57A(1)(c), as in force immediately before the commencement of the item, continues to apply in respect of any information relevant to the performance of the functions of the ADRVP disclosed by the Australian Sports Commission to the ASADA CEO.
Part 2 - Protection from Civil Actions
Australian Sports Anti-Doping Authority Act 2006
Item 40: At the end of section 78
This item inserts new subsection (5) into section 78, to extend the protection against civil proceedings to national sporting organisations and their employees or contractors.
This additional protection has been included to ensure that national sporting organisations and their personnel are not disadvantaged by engaging with the legislative anti-doping process through exposure to litigation. Extending this protection will also better allow national sporting organisations to act in cooperation with ASADA on anti-doping matters.
Item 41: Application provision
This item provides that section 78(5) only applies in respect of acts or omissions occurring on or after its commencement.
Part 3 - Disclosure to courts or tribunals
Australian Sports Anti-Doping Authority Act 2006
Item 42: Subsection 67(3)
Subsection 67(3) currently provides that an 'entrusted person' is not to be required to produce protected information to a court or tribunal.
This item would extend the application of subsection 67(3) to any person in possession of protected information.
Extending this protection will allow ASADA to better share information with key stakeholders, in particular national sporting organisations, with reduced risk of that information being identified in open court or tribunal proceedings. Better information sharing will promote cooperation and coordination of anti-doping efforts and assist ASADA in undertakings its functions more efficiently and effectively.
Part 4 - Disclosure Notices
Australian Sports Anti-Doping Authority Act 2006
Item 43: Paragraph 13(1)(ea)
This item amends paragraph 13(1)(ea) to alter the statutory threshold for the issuing of disclosure notices. The requirement is currently that the ASADA CEO 'reasonably believes' that a person has information, documents or things that may be relevant to the administration of the NAD scheme.
This item amends that threshold to be 'reasonably suspects'.
The current requirement necessitates that the ASADA CEO effectively already has evidence that suggests that an ADRV has taken place. By amending the threshold to 'reasonably suspects' the CEO will be able to issue disclosure notices to progress matters where there is reason to suspect an ADRV has occurred but insufficient evidence to substantiate it. This brings the threshold into line with comparable statutory schemes.
Item 44: Paragraphs 13A(1A)(a) and (b)
This item amends paragraphs 13A(1A)(a) and (b) in line with paragraph 13(1)(ea) by substituting 'reasonably believes' with 'reasonably suspects'.
Item 45: Subsection 13B(3)
Subsection 13B(3) currently requires the CEO to allow a person who would otherwise be entitled to inspect or view a document produced pursuant to a disclosure notice to do so at the times that the person would ordinarily be able to do so.
This item amends subsection 13B(3) to still allow that person to inspect or view the document or item; however, only at such times and places as the CEO thinks appropriate. This amendment would clarify the ASADA CEO's obligations in this area. For example, if a document or thing that has been produced under a disclosure notice has been sent away for forensic examination (for example, to a WADA accredited laboratory), it will be unavailable for viewing or inspection.
At present, if the person who produced the document or thing under a disclosure notice asked to view or inspect the document, the ASADA CEO would not be able to comply with the obligation under s 13B(3). The amendment would permit the ASADA CEO to arrange for the viewing or inspection to occur at a time when the document or thing was in fact available for that purpose.
Item 46: Subsections 13C(1), (3) and (4) (penalty)
This item amends the current penalty provisions for non-compliance with a disclosure notice by increasing it from 30 to 60 penalty units.
This has been done to bring the penalty into line with similar penalty provisions, as well as to establish greater incentives to comply with disclosure notices.
Item 47: Subsections 13D(1) to (2)
This item repeals subsections 13D(1), (1A) and (2) and substitutes new subsections 13D(1) and (2). Currently, those subsections provide that a person is excused from complying with the requirement to answer a question or to give information pursuant to a disclosure notice, where that answer or information may tend to incriminate them or expose them to a penalty. The privileges do not apply in respect of the production of documents or things.
New subsection (1) provides that a person is not excused from complying with the requirement to answer a question, give information or provide a document or thing on the grounds that doing so may incriminate them or expose them to a penalty. New subsection (2) provides that any answers, information documents or things provided under a disclosure notice provided are not admissible in proceedings other than offences against sections 137.1 or 137.2 of the Criminal Code in relation to the ASADA Act or any proceedings in connection with the ASADA Act or ASADA Regulations.
This amendment harmonises the exercise of ASADA's powers across the multiple sources of information obtainable from the disclosure notice process. It further aligns ASADA's powers with pre-existing contractual powers utilised by many national sporting organisations.
Item 48: Application provision
This item provides that amendments made by this Part only apply in relation to disclosure notices given on or after the commencement of
This item.
Part 5 - Contingent amendments
The amendments in Part 5 are expressed to be contingent, as they have been drafted to take account of various scenarios concerning the commencement of the Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Act 2019 (Sport Integrity Australia Act).
Division 1 - First Contingency
The amendments set out in Division 1 of Part 5 will not commence if Schedule 1 to the Sport Integrity Australia Act commences on or before that time. The amendments in Division 1 are drafted on the basis that ASADA has not been replaced by Sport Integrity Australia, and the ADRVP has been abolished. Should the Sport Integrity Australia Act commence first, the amendments in Division 1 will no longer be required.
Item 49: Paragraphs 50F(a) and (b)
Item 50: Paragraphs 50F(c), (d) and (e)
Consequential to the abolition of the ADRVP, these items would amend section 50F to provide that the Australian Sports Anti-Doping Authority is a listed entity for the purposes of the finance law.
Freedom of Information Act 1982
Item 51: Schedule 3
This amendment would insert a reference to section 67 of the Australian Sports Anti-Doping Authority Act 2006 into Schedule 3 of the Freedom of Information Act.
Division 2 - Second Contingency
The amendments set out in Division 2 of Part 5 will not commence unless the Sport Australia Integrity Act commences on or before Part 1 of Schedule 1 of this Act. The amendments in Division 2 are drafted on the basis that ASADA has been replaced by Sport Integrity Australia on the commencement of the Sport Integrity Australia Act, and the ADRVP is abolished by this Bill, either at the same time or after the commencement of the Sport Integrity Australia Act.
Item 52: Paragraphs 50F(a) and (b)
Item 53: Paragraphs 50F(c), (d) and (e)
Consequential to the establishment of Sport Integrity Australia and the abolition of the ADRVP, items 52 and 53 would amend section 50F of the Sport Integrity Australia Act to provide that Sport Integrity Australia is a listed entity for the purposes of the finance law.