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 (SPORT INTEGRITY AUSTRALIA) BILL
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
Sport Integrity Australia will be the Australian Government agency that focuses on the overall integrity of Australian sport and the health and welfare of those who participate in sport.
In August 2017, the Minister for Sport requested a Review of Australia's Sports Integrity Arrangements (Wood Review), as part of the work being done by the Australian Government to develop a 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.
At the heart of the Wood Review was a recommendation the government establish a National Sport Integrity Commission to cohesively draw together and develop existing sports integrity capabilities, knowledge and expertise. The Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019 responds to this Wood Review recommendation and aims to establish a single Commonwealth agency to cohesively draw together and develop existing sports integrity capabilities.
Sport Integrity Australia will implement Australia's international obligations both under the UNESCO International Convention against Doping in Sport and the Convention on the Manipulation of Sports Competitions (Macolin Convention). In order to do this, Sport Integrity Australia will bring together the national sports integrity functions currently exercised by the Australian Sports Anti-Doping Authority, National Integrity of Sport Unit, and Sport Australia.
The outcome will be an agency that cohesively draws together and develops existing sports integrity capabilities, knowledge and expertise, and nationally coordinates all elements of the sports integrity threat response including prevention, monitoring and detection, investigation and enforcement.
Human rights implications
This Bill engages Article 17 of the International Covenant on Civil and Political Rights (ICCPR) - privacy and reputation.
Right to privacy and reputation
Article 17 of the ICCPR states that '[n]o 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.'
By ensuring that appropriate protections are available to prevent the disclosure of protected information, the recognition of the Bill's secrecy provision in Schedule 3 of the Freedom of Information Act 1982 (FOI Act) positively engages the right to privacy and reputation in Article 17 of the International Covenant on Civil and Political Rights. Specifically it ensures that information received by Sport Integrity Australia is protected from release under the FOI Act, ensuring Sport Integrity Australia is able to provide appropriate guarantees in relation to the protection of information, such as health and medical records, received by Sport Integrity Australia in the performance of its functions.
The proposed amendments will declare Sport Integrity Australia to be an enforcement body for the purposes of the Privacy Act 1988 (Privacy Act), which will relevantly have the effect that:
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- Sport Integrity Australia would not be required to notify an eligible data breach under Part IIIC, where the CEO believes on reasonable grounds that notifying the breach would be likely to prejudice one or more enforcement related activities conducted by, or on behalf of, the enforcement body;
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- Sport Integrity Australia would not be required to obtain an individual's consent to collect sensitive information, where the collection of the information is reasonably necessary for, or directly related to, one or more of Sport Integrity Australia's functions or activities ( Australian Privacy Principle 3 );
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- another APP entity would be able to disclose information to Sport Integrity Australia, where the other APP entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more of Sport Integrity Australia's enforcement related activities ( Australian Privacy Principle 6.2(e) );
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- Sport Integrity Australia would not be required to obtain an individual's consent to disclose their personal information to an overseas recipient, where the recipient is a body that performs functions, or exercises powers, that are similar to those performed or exercised by an enforcement body ( Australian Privacy Principle 8 );
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- another APP entity would be able to disclose a government identifier to Sport Integrity Australia, where the entity reasonably believes that the use or disclosure of the identifier is reasonably necessary for one or more of Sport Integrity Australia's enforcement related activities ( Australian Privacy Principle 9.2(e) );
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- Sport Integrity Australia would not be required to give an individual access to their personal information where to do so would be likely to prejudice one or more enforcement related activities conducted by Sport Integrity Australia ( Australian Privacy Principle 12.3(i) ).
The proposed amendment engages Article 17 of the ICCPR:
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 inclusion of Sport Integrity Australia as an enforcement body for the purposes of the Privacy Act cannot be considered arbitrary as it is sufficiently precise; the exemptions will only apply in relation to circumstances where the use or disclosure or particular information is reasonably necessary for Sport Integrity Australia's relation enforcement related activities. Sport Integrity Australia will otherwise remain subject to the requirements of the Privacy Act, including the Australian Privacy Principles.
It can be considered proportionate for Sport Integrity Australia to be listed as an enforcement body under the Privacy Act. While the formal allegations put forward by Sport Integrity Australia do not result in civil penalties or criminal charges (as is the case with most bodies granted this exemption under the Privacy Act), Sport Integrity Australia nonetheless will have the function of investigating threats to sports integrity. In the context of investigations into sports doping, Sport Integrity Australia has specific investigative powers, and the results of such investigations will be used in pursuing cases of anti-doping rule violations against athletes and support persons, including before the National Sports Tribunal and other sporting tribunals.
Appropriate protections remain in place to ensure information may only be accessed in certain circumstances, that is, relating to the investigation of possible breaches of anti-doping rules. Specifically, the current secrecy provisions in Part 8 of the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act) will relevantly be retained for Sport Integrity Australia. These provisions govern the circumstances in which protected information can be disclosed, and create a criminal offence for entrusted persons who disclose protected information other than in the circumstances set out in the Act.
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.