Dean Smith (WA, Liberal Party) Share this | Hansard source

I rise to make a contribution late this afternoon to the Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019. As we know, Australians love their sport. It's a love shared across the world, with sport estimated to account for as much as six per cent of world trade. And, just as we expect our international trade to be conducted fairly based on globally accepted principles and governance, our involvement in competitive sport is regulated by international standards also. Australia has agreed to the United Nations Educational, Scientific and Cultural Organization's International Convention against Doping in Sport because we support the principles of the World Anti-Doping Code.

The legislation before the Senate today will improve our compliance with these principles and assist ASADA to adopt and harmonise its functions to combat the complex and evolving nature of doping in sport. The bill implements many of the recommendations of the 2017 Review of Australia's Sports Integrity Arrangements, known as the Wood review. Disturbingly, according to the explanatory memorandum for this bill:

The Wood Review found doping is more prevalent and widespread than ever among athletes at all levels, and is facilitated by the increasing availability of highly sophisticated techniques that make it harder to detect. The Wood Review also found serious and organised crime is involved in the supply of performance and image enhancing drugs and the current suite of statutory protections and powers under the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act) is not sufficient to facilitate ASADA's increasing emphasis on intelligence-based investigations.

Australians watching their favourite elite sports men and women expect their performance to have been developed through tireless training or natural talent. They do not expect to see athletes who have deliberately flouted rules on performance-enhancing techniques unfairly competing against those who have done the right thing. Australians hate cheating, something the Australian cricket team knows only too well, and doping is cheating.

The Morrison government is committed to addressing the problem of drugs in sport to ensure that community expectations regarding the conduct of our elite sportspeople are met and exceeded. As stated again in the explanatory memorandum:

The Wood Review made a number of recommendations including legislative amendments, principally to the ASADA Act, to allow ASADA's existing regulatory functions to be carried out more effectively. These amendments provide for these recommendations, with the principal effects to include:

streamlining the administrative phase of the statutory anti-doping rule violation process;

extending statutory protection against civil actions to cover other persons in their exercise of Anti-Doping Rule Violation functions;

facilitating better information sharing between ASADA and National Sporting Organisations (NSOs) through enhancing statutory protections for information provided to an NSO by ASADA; and

strengthening ASADA's disclosure notice regime.

These legislative changes are vital to ensuring Australians can feel confident about the integrity of their favourite sports and sports men and women. Importantly, the legislative changes will ensure that ASADA has the ability to investigate matters where it considers it has a reasonable suspicion rather than a reasonable belief.

In its contribution to the Community Affairs Legislation Committee inquiry into this bill, ASADA had a number of things to say.

ASADA noted that in four significant cases in recent years, the inability to reach the reasonable belief threshold had delayed or otherwise prevented the progression of those matters, noting that in each of these cases the subjects of the investigations were facilitators, suppliers or third party enablers of doping.

And, in response to questions taken on notice at the Community Affairs Legislation Committee inquiry, ASADA estimated:

… that there are at least 10 instances of organisations or businesses being involved in the supply of performance and image enhancing drugs that ASADA has been unable to fully investigate using disclosure notices due to the current reasonable belief threshold.

This evidence underscores the importance of changing the threshold to combat the prevalence of doping in sport. While this change has concerned some, the Department of Health more than justified the necessity of this modern approach in its evidence to the committee.

Acting on a hunch is not reasonable. As set out in the explanatory memorandum, reasonable suspicion is a threshold used for issuing search warrants in many jurisdictions in Australia. Search warrants authorise, amongst other things, the forced entry onto premises and the seizure of items. The Department of Health went on to explain that, while reasonable belief is appropriate when ASADA is able to rely on adverse analytical findings following the testing of urine and blood samples, this alone is increasingly ineffective in confronting doping.

Disappointingly, but perhaps not surprisingly, the Australian Greens presented a dissenting report as part of the community affairs committee process. I'll briefly make some comments on their findings on this issue. Recommendation 1 of the dissenting report is largely based on commentary presented in the Parliamentary Library's Bills Digest. This digest references comments made by the head of the Australian Olympic Committee in an article from an Australian newspaper in 2006. We are, of course, debating amendments to a bill in 2020. Yes, 2006! The dissenting report extensively quotes from pages 28 and 29 of the Bills Digest but deliberately excludes the following statement: 'However, the Australian Olympic Committee does not oppose the proposed amendments.' In politics, language is important, and the way this is phrased does not do justice to the Australian Olympic Committee's public position on the government's proposed amendments. And their public position is easy to find. The Australian Olympic Committee made a submission to the community affairs inquiry that the Greens could have quoted from to provide a more accurate description of their view. The submission's executive summary clearly states:

The Australian Olympic Committee … welcomes the introduction of the Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019—

the bill that we are debating this afternoon.

It is paramount to the protection of clean athletes in an increasingly complex sporting environment that anti-doping authorities have the necessary powers to investigate allegations of doping violations. The Australian Olympic Committee is supportive of all proposed amendments to the Australian Sports Anti-Doping Authority Act 2006 and the ability of the Australian Sports Anti-Doping Authority to carry out intelligence based investigations. The Australian Olympic Committee, in its justification for its support of these amendments tonight, said:

Without this protection, we cannot preserve the integrity and honesty of Australian sport for all clean athletes.

The Greens' dissenting report goes on to question why ASADA and the government have allowed individual sporting codes to implement contracts compelling sporting participants to cooperate with ASADA. These are individual contracts between elite sports people and individual national sporting organisations. If individual organisations such as the Olympic committee, which provided a copy of their Tokyo Olympic contract to the community affairs committee, feel that their elite participants should answer any questions about doping then surely it is appropriate for them to ensure this occurs through contractual arrangements. These contractual arrangements help protect the national sporting organisation from damaging doping allegations, demonstrating to participants and spectators that the use of drugs in sports is inexcusable. It's perfectly reasonable that someone who has competed while representing our nation must comply and assist with any ASADA investigation. This inspires public confidence in sport and at the Olympic level protects our natural national reputation, meaning that an Australian who wins a gold medal, an Australian who wins a silver medal and an Australian who wins a bronze medal have done so in full confidence that they've done it fairly, openly and that that is a victory worthy of clean competition and reward at the Olympic level.

The dissenting report comprised six recommendations, but does not acknowledge the problems identified by the Wood review or provide any alternatives to address these serious issues of integrity in sport. The reality, as highlighted by the evidence to the committee, is that if no changes are made to ASADA's current processes they will continue to have difficulties investigating doping cases.

To conclude, I note the following from the community affairs report:

The committee recognises that the matters addressed in the bill have been the subject of extensive review and consultation, both through the Wood Review, legislative scrutiny processes and subsequently following the introduction of similar form of the bill during the previous parliament. The committee notes the refinements to the bill in response to this scrutiny and consultation.

The report goes on to summarise that:

The bill seeks to enhance ASADA's intelligence gathering capabilities by addressing inefficiencies, inconsistencies and gaps identified by the Wood Review. At the same time, the bill is intended to provide ASADA with the flexibility it needs to apply a more risk based and nuanced approach to its work. Oversight is maintained through internal ASADA procedures as well as through judicial review, while appropriate safeguards remain in place for the protection of information.

These are important changes to ensure the integrity of sporting codes and national sporting representatives. The Wood review has identified the need for legislative changes, and the government is delivering on these recommendations.

Sport is a vital element of our Australian culture, and the community expects their sporting heroes to be free from performance-enhancing drugs and free from the allegation of the use of performance-enhancing drugs. The Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019 will enhance community confidence and ensure that our elite athletes are at peak performance due to their own efforts and skill, not because of performance-enhancing drugs and treatment. I commend the bill to the Senate.