Don Farrell (SA, Australian Labor Party, Shadow Special Minister of State) Share this | Hansard source

This amendment relates to items 43 and 44 of this bill in its current form, which seek to lower the threshold for the issuing of a disclosure notice from 'reasonable belief' to 'reasonable suspicion'. That would be a very significant change to the status quo and have a significant impact on athletes' individual rights. Currently, the ASADA CEO can issue a disclosure notice only if they reasonably believe that a person has information that may be relevant to the administration of the National Anti-Doping scheme.

The changes proposed in items 43 and 44 were among concerns raised with the opposition by stakeholders and identified by both the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills. Labor has sought to work with stakeholders to address this issue and initiated a Senate referral of this bill to the Community Affairs Legislation Committee for an inquiry earlier this year to give stakeholders the chance to detail their concerns with this bill. Through that engagement, we decided to move an amendment to the bill that would retain the current threshold of 'reasonable belief'. Key stakeholders, including the Australian Athletes' Alliance, have told us that the amendment would address their most significant concerns with the bill.

The lower threshold proposed by this bill in its current form departs from the Attorney-General's guide to framing offences, which says that the document disclosure provisions should, firstly, impose a threshold of 'reasonable grounds to believe' that a person has custody or control of documents, information or knowledge which would assist the administration of the legislative scheme and, secondly, give a person 14 days to comply with the notice. In contrast, in relation to antidoping matters, this bill proposes, firstly, a threshold of 'reasonable suspicion' that the person has information, documents or things that may be relevant to the administration of the NAD scheme and, secondly, no limit to the period that the ASADA CEO may specify in the notice. Where draft provisions depart from the guide, the Attorney-General's Department website instructs departments to consult with the criminal law division of the AGD before proceeding. The explanatory memorandum of this bill is silent as to whether there has been any consultation with the AGD.

The explanatory memorandum suggests that some jurisdictions allow search warrants to be issued at a threshold of 'suspicion' and that the nature of the disclosure notice is less intrusive because it does not permit entry into premises. However, that analogy is flawed, because the disclosure notices in the context of antidoping investigations can also compel a person to attend for questioning. In other contexts, a person can generally be compelled to attend for questioning only if a court issues a warrant for their arrest or if a person, usually a police officer, arrests them without a warrant. The general requirement for the issuing of a warrant or for arrest without a warrant is that the person issuing the warrant or making the arrest believes on reasonable grounds that the person has committed or is committing an offence. These issues are summarised very clearly in the Bills Digest for this bill. The section of the digest dealing with these issues wraps up by saying:

In light of the broad responsibilities of the ASADA CEO and the width of the phrase 'relevant to the administration of the NAD scheme', there is some doubt whether a change to the threshold for issue of a disclosure notice is necessary. It may be sufficient for the ASADA CEO to fully utilise the current legislation.

This would not have the same flow-on impact in relation to other measures in this bill.

Labor takes the integrity of Australian sports extremely seriously. We understand and support the need for Australian defences against sports integrity threats to be updated as the nature of those threats evolve, and we recognise that the bill, for the most part, seeks to implement recommendations from the Wood Review of Australia's Sports Integrity Arrangements. Labor is committed to continuing to work constructively with all stakeholders to ensure that Australian sport is well protected against these threats. The establishment of Sport Integrity Australia and the National Sports Tribunal, which Labor supported in the parliament, are important steps. Labor believes stronger antidoping measures can be achieved while maintaining the current disclosure notice threshold and would support the bill as amended if the Senate sees fit to support Labor's amendment.