Alan Griffin (Bruce, Australian Labor Party, Shadow Minister for Veterans' Affairs) Share this | Hansard source

I rise to speak on the Australian Sports Anti-Doping Authority Bill 2005 and the Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) Bill 2005. The Australian Labor Party are proud to have introduced the original antidoping legislation in 1990, which resulted in the Australian Sports Drug Agency. We are equally proud that even from opposition Labor have been able to bring to account the Howard government and ensure Australia continues to build on a drug-free sporting legacy.

Labor’s goal in establishing ASDA was to ensure that Australian athletes were able to perform and compete in an environment untainted by banned substances. This goal was met, with ongoing revision and adaptation of our antidoping legislation. To move forward in antidoping in Australia, it is essential that there be a platform for national and international collaboration, regulation and development. Australia’s antidoping systems are robust and thorough and are managed by an authority that can adapt to ever-changing doping technologies and that has fair and transparent measures in place to investigate allegations of antidoping violations.

The Australian Sports Anti-Doping Authority Bill 2005 establishes the Australian Sports Anti-Doping Authority. Australia is internationally renowned as one of the leaders in antidoping. Drug testing programs commenced in Australia in the early 1980s. In 1989, the Council of Europe Anti-Doping Convention was signed, in recognition of sports organisations developing an internationally coordinated approach to drugs in sport. It took effect in Australia in 1994.

The World Anti-Doping Agency was established in 1999, with the aim of continuing to coordinate and harmonise antidoping efforts across sport at an international level. In March 2003, WADA released the World Anti-Doping Code. The WADA code provides a framework for international and national sporting organisations and public authorities to establish antidoping policies, rules and regulations. This code has been accepted by all Olympic committees and Commonwealth Games associations, 68 national antidoping organisations, 159 of the 161 national paralympic committees, 10 major games associations, all Australian national sporting organisations—through government funding obligations, and other international sporting organisations.

Australia’s commitment to the international antidoping effort was ratified most recently in October 2005, when UNESCO adopted the International Convention Against Doping in Sport, a binding agreement to implement the WADA code. Australia is a signatory to this convention, which will take effect once 30 member nations sign on to the treaty.

While Australia has a strong reputation for its antidoping efforts, gaps in the current ASDA powers were exposed during the handling of an alleged doping violation in December 2003. A plastic bucket of syringes, vitamin B and C vials, Equigen vials, other injecting material and an empty box of Testicomp were found in the room of cyclist Mark French at the Australian Institute of Sport facility in Del Monte in South Australia. A preliminary investigation took place. Allegations were made that there was a clandestine drug culture among elite cyclists and that the AIS was turning a blind eye to the drugs culture at the AIS facility at Del Monte. Following this preliminary investigation, the Australian Sports Commission and Cycling Australia instigated an independent investigation of the incident. Allegations were again made that there was drug use by unknown members of the AIS cycling team and that there was a culture of permissiveness in respect of doping at the Del Monte facility. In May 2004, in evidence to the court, Mr French named five other cyclists who had allegedly participated in group injecting sessions at the Del Monte facility. The court found Mr French guilty of antidoping offences. Mr French was banned from competition for two years and fined $1,000. There was no further investigation into the allegations surrounding the five named cyclists.

On 18 June 2004, it was the Labor opposition that raised this issue in parliament. Senator John Faulkner criticised the government for the mismanagement of investigations into allegations of antidoping violations. Senator Faulkner called for the establishment of an investigation and determination process independent of the Australian Sports Commission. Senator Faulkner also highlighted concerns that there had been no further investigation of the other named alleged offenders involved in the case. This case was of utmost sensitivity given that some of the alleged offenders were considered potential gold medallists at the upcoming Athens Olympics.

After Labor raised these concerns, the Hon. Robert Anderson QC was appointed by the Australian Sports Commission and Cycling Australia to investigate the alleged claims of doping within the AIS track sprint cycling program and to assess the effectiveness of actions taken by the ASC and Cycling Australia following the discovery of injecting material. From this inquiry Justice Anderson made a number of observations. In short: the preliminary investigation tried to do too much, given its objective was only to determine whether Mr French’s scholarship should be suspended; the follow-up investigation was conducted with due expedience; the case should have been taken to the ASC as urgent, given that Mr French may have had a case to answer and that the further allegations may have impacted on Olympic selections, which were only a few months away; and Cycling Australia and the ASC should have instructed their solicitors to proceed with the case more urgently.

The key recommendation that Anderson made from the inquiry was that there should be a body—a body which is quite independent of the AIS, the Australian Sports Commission and the sporting bodies themselves—with the power and duty to investigate suspected infractions, such as substance abuse, and to carry the prosecution of persons against whom evidence is obtained. Throughout the French track cycling case, ASDA did not have the power to investigate, present the case or intervene in any way. The ASDA Act was amended in 2004 in order to comply with the WADA code. However, while the responsibilities are mapped out for the sporting body and athletes in the WADA code, ASDA currently does not have the power to examine all antidoping rule violations in the code.

This legislation provides two additional powers: the power to investigate doping allegations and the power to present antidoping violation cases of hearings of CAS or other sports tribunals. Sporting bodies who made submissions to the Senate inquiry into the legislation concurred that this type of body was required. These additional powers will enable ASADA to examine all eight antidoping violations contained in the WADA code—namely, the presence of a prohibited substance or its metabolites or markers in an athlete’s body or specimen; use or attempted use of a prohibited substance or a prohibited method; refusing or failing, without compelling justification, to submit to sample collection after notification, as authorised in the applicable antidoping rules, or otherwise evading sample collection; violation of applicable requirements regarding athlete availability for out-of-competition testing, including failure to provide required whereabouts information and having missed tests, which are declared based on reasonable rules; tampering or attempting to tamper with any part of doping control; possession of prohibited substance and methods; trafficking in any prohibited substance or prohibited method; administration or attempted administration of a prohibited substance or prohibited method to any athlete; and assisting, encouraging, aiding, abetting, covering up or any other type of complicity involving an antidoping rule violation or any attempted violation.

ASADA will maintain the existing drug testing, education and advocacy functions of ASDA and will also carry out additional functions in relation to the investigation of potential additional sports doping violations; the presentation at hearings conducted by the International Court of Arbitration for Sport and other sports tribunals of cases against an athlete or support person alleged to have committed an antidoping rule violation; determining mandatory antidoping rules to be included in ASC funding agreements with sports; and advising the ASC of the performance of sports in observing these requirements.

ASADA will carry out these functions within the context of the National Anti-Doping Scheme, or NAD Scheme, which is also established by the ASADA Bill. Detailed protocols and procedures for the exercise of ASADA’s functions will be contained in the NAD Scheme, which will be a legislative instrument, developed alongside the ASADA Bill, to be tabled in parliament. The National Anti-Doping Scheme will be consistent with the mandatory provisions of the World Anti-Doping Code and will implement the UNESCO convention, once ratified. The bill acts as the broad legislative umbrella for ASADA, and the NAD Scheme will contain much of the detail that will directly affect the athletes and sporting bodies.

The Senate committee inquiry into this bill has been told that the NAD Scheme will contain antidoping rules applicable to athletes and support personnel, including details of antidoping rule violations and the consequences of infractions; protocols for ASADA drug-testing procedures; protocols and procedures governing ASADA investigations; protocols for ASADA to establish a register of its findings and to advise sporting organisations and athletes of its findings; and protocols for ASADA’s presentation of doping cases at sports tribunal hearings. Under the scheme, it is the responsibility of Australia’s sporting organisations to promote athlete compliance with the scheme, refer violations of the scheme to ASADA, assist ASADA in the course of its investigations and take action in response to ASADA finding that a violation has occurred. The scheme also authorises ASADA to monitor the compliance of sports and sports administration bodies, including the ASC, with these obligations; notify the Australian Sports Commission in regard to such compliance; and publish reports about the extent of compliance.

The NAD Scheme has not yet been produced. This is a key concern of Labor along with sporting bodies and players’ groups. National sporting bodies, athletes and players, not to mention the parliamentarians, have to trust this government that the regulations attached to this bill are consistent with the WADA code and UNESCO convention. They have to trust this government that the NAD Scheme regulations do not contain provisions that will affect them in a negative way. There are also valid concerns, both from Labor’s point of view and that of the sporting bodies, with regard to delays that would be caused by the need to disallow the regulations. While amendments to the NAD Scheme are required to go through a public consultation process, this is not the case for the initial regulations. This is certainly not ideal.

In the Senate committee hearings on this bill the government gave a guarantee that all interested sporting and players associations would be contacted and consulted regarding the detail of the NAD Scheme. Australian sport has a lot riding on the proper establishment of effective antidoping regulations. This consultation is vital. The Australian Olympic Committee characterised some additional concerns in relation to these bills. They argued that the ASADA Bill does not separate the ASADA functions and powers relating to policy making, administration, investigation and prosecution; does not outline the reasons for or status of the register of findings; does not provide ASADA with the necessary and appropriate powers of investigation; and has adopted definitions at variance with those in the World Anti-Doping Code and the UNESCO antidoping convention. These are all valid concerns. The management of ASDA believes that the powers will be separated through good management practices. This remains to be seen. Without seeing the actual NAD Scheme it is difficult to look any further into their concerns.

Labor, as they have done throughout their term in opposition, will hold the government to account on their commitment to the national sporting bodies and their commitment to athletes to ensure that this legislation will offer positive benefits to sport and not incur any additional cost or risk associated with the NAD Scheme.

I should also note before I close that the rush we are in to get this legislation through parliament is not really acceptable. While not wanting to hold this legislation up any longer—it has been on the government’s agenda since mid last year—the government should have had this legislation on the table long before now. We should have seen the regulations before now. This would have allowed the parliament to assess the real impact and would have allowed for an efficient and effective antidoping body with additional powers to be well and truly in place by the Commonwealth Games.

Labor has always been committed to, and the leaders in, Australia’s push to eradicate drugs in sport. Labor created ASDA in 1990 and it was Labor who pushed for the Anderson inquiry, which recommended this legislation. Labor supports the passage of the Australian Sports Anti-Doping Authority Bill 2005. Whilst we have several concerns with this legislation, they are not significant enough to amend the bill. As such, the government should accept this as an act of good faith on behalf of the Labor Party and the opposition will closely monitor its implementation. I commend the bill to the House.

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