Richard Di Natale (Victoria, Australian Greens) Share this | Hansard source

I rise today to speak about the Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019.

When we think of ourselves as Australians, we often think of ourselves as a sporting nation. There is a lot to be proud of there: 14 million of us participate in sport annually and almost two million people volunteer each year in a whole range of different ways. They might be involved in their local football, soccer, netball, cricket, rugby league, rugby union, basketball, swimming or athletics club, and it goes on and on and on. We love our sport.

We need to do everything we can to protect that wonderful sporting culture. We have to make sure that we support community sport, but we also have to ensure that there is integrity at the highest levels in sport. We know that that trust can be shattered when we learn that a high-profile athlete—someone who kids look up to—has been found cheating. They undermine people's faith in a really important institution for all Australians. That's not fair, and Australians want a level playing field when it comes to engagement in sport.

Of course there are lots of things that can challenge the integrity of our sporting culture. This bill addresses the issue of doping violations, but the Wood review, as was mentioned in the earlier contribution from Senator Farrell, went well beyond anti-doping violations to the whole issue of the commercialisation of sport. For example: there is the rise in sports betting, which has resulted in the manipulation of outcomes and, again, further undermining of the integrity of sport. So, from the outset, it is absolutely critical that we see a level playing field, that we make sure that all athletes are participating fairly and doing what they do because they love what they do—that they are doing it honestly and are able to compete on a level playing field. We need to do everything we can to stop people who game the system, who manipulate the system and who cheat.

But we do have to think about it as a system. It's not just an athlete in isolation. As I've said previously in this place, modern sport is an industry. It's big business, and athletes don't compete on their own. I often listen to Ash Barty, one of Australia's most significant figures, I think, in Australian sport over the past decade. You rarely hear Ash Barty talk about herself as Ash Barty the individual; it's always 'our team'. High-profile athletes are almost always part of a much bigger team—they're surrounded by coaches, trainers, nutritionists and physios, and a whole range of other support staff. I said this when we were debating an earlier bill: it's true that athletes will always bear ultimate responsibility for what goes into their bodies, and pay the price when mistakes are made. But if athletes and entire teams are found to have wandered into the doping grey areas and beyond, it's as much an organisational failure—a systems failure—as a case of individual cheating by athletes. So we need to consider that context; that context is absolutely critical.

I actually heard from a range of former athletes when I was engaged previously in this portfolio and was prosecuting a previous bill. What we've heard was that athletes find this system very invasive. It's intense and it exposes them to a level of scrutiny that very few people can imagine. They're required to frequently report their whereabouts. Holidays are really hard to organise—they have to be available for testing. They basically have to have their sport control all aspects of their lives; their diary has to be absolutely coordinated with any potential for testing, and it makes life difficult. Most people do it, and they do it voluntarily and willingly because they love what they do, but it does provide a huge challenge for many athletes.

Of most concern, we've heard from athletes who've received antidoping violations for missing an appointment for absolutely valid reasons. We've heard from athletes who have provided a sample but have left competition because they needed to get home and have received a sanction for not providing a second sample, even though the first sample might have been clean. If an athlete has enough of those warnings, it has a huge impact on their career, even though they participate honestly and with integrity and there's no question about whether they actually engage in cheating. So, given the concerns that have been raised with us, it's important that we scrutinise all of the proposed changes to this bill and understand what their impact is on decent people: the athletes who do what they love, and who do it so that we can enjoy watching them excel in their chosen sport.

In 2013 I was successful in securing amendments to an ASADA bill that protected an athlete's right to silence. At the time I said it was my view that the privilege against self-incrimination was fundamental to our democratic system of justice and that forcing an athlete or support personnel to give evidence, even if it could compromise their own career, flew in the face of this principle. Senator Farrell said this earlier. This is a right we afford to criminals and to people who are facing criminal charges. If it's a right that's afforded to people who are facing criminal charges, then surely it's a right that should be afforded to athletes. It's a fundamental legal principle. We do support a better system, a fairer system, but we do have to scrutinise the detail of this bill very, very clearly. We do have some concerns about some of the matters that are reflected in this bill, and it's for that reason that we'll be proposing some amendments shortly.

I want to take a moment to talk about some of the processes in ASADA's work. An important process in legal terms is its use of disclosure notices. As the Bills Digest explains:

ASADA has power to issue a disclosure notice to compel certain persons to attend for questioning and to produce documents and things.

ASADA can enforce its disclosure notices with civil penalties. It's an important part of the investigative power that ASADA uses, and there are very clear parameters around disclosure notices because the use of those disclosure notices has a very direct impact on the lives of athletes and on their experiences of interacting with what is a very complex system.

One of the changes in this bill is that it would lower the threshold required for the CEO of ASADA to issue a disclosure notice. At the moment, the CEO has to have a 'reasonable belief' that a person has 'information, documents or things that may be relevant to the administration of the NAD scheme', the National Anti-Doping Scheme, before issuing a disclosure notice. We think that's appropriate. But what this bill does is change the notion of a 'reasonable belief' to that of a 'reasonable suspicion'. What's a suspicion? Is it a hunch? If someone's performance has improved over a period of time and we have a hunch they might be cheating, we might issue a disclosure notice. We are very concerned that, in lowering the threshold for disclosure notices to a 'reasonable suspicion', it is actually setting the threshold for the use of what is a very significant power far too low.

You only have to talk to the various key stakeholders to know just how concerned they are. The Australian Athletes' Alliance noted:

The breadth of the information that can be requested in a disclosure notice is broad. Given that compliance may place a significant burden the person receiving a disclosure notice, it is reasonable to require that the CEO actually believe that the disclosure notice will yield relevant information. A suspicion, which is tantamount to a hunch, even if reasonable, is not enough to require an athlete to provide their personal data, phone, computer, bank accounts, and other private information.

That's the view of the Australian Athletes' Alliance. I think it's one that is absolutely reasonable.

There's also a second aspect of the changes to disclosure notices that we've got concerns about. The bill will make it harder for athletes to access the document retained by the CEO, changing their rights to access it from 'at such times that the person would ordinarily be able to do so' to 'at such times and places as the CEO thinks appropriate'. So we think it's reasonable that, if ASADA has significant powers to issue these disclosure notices, there's some transparency and that athletes have the right to access that information.

My colleague Senator Rice has also spoken to many of the people who've struggled with this system and with knowing what information is being relied on as they navigate what's a very complex process. They have had their phones accessed. They've faced significant bureaucratic hurdles just to find out what information has been taken off their phones. Of course there's a role for appropriate investigations to make sure the system's fair, but it should be fair and it should be transparent, and it's reasonable that athletes be able to access the information that's provided via disclosure notices.

Again, when we secured the changes I mentioned earlier in the previous legislation, we also secured the right to silence in that legislation. This bill removes that right—that is, athletes would no longer be able to refuse to answer questions under a disclosure notice because it would self-incriminate. Again, that's something that we afford in the justice system to people accused of criminal charges. But, despite the fact that we secured that in previous legislation, what we're finding now is that the governing bodies are using contracts as a way to impose a requirement that athletes self-incriminate in response to a disclosure notice. What that effectively does is take away their right to silence. So what you're seeing is an undermining of legislative protection via the use of contracts. Athletes use their right to silence when they sign a contract to play a particular sport. It's a separate question, and it's not really one for this bill, but it's something we are concerned about and something that should be addressed.

Another part of the process is that currently the ASADA CEO has to have the approval of the Anti-Doping Rule Violation Panel before issuing the disclosure notices. We're persuaded by the views of stakeholders that the panel hasn't added much in the way of oversight, but we think it's important that athletes retain the right to appeal to the Administrative Appeals Tribunal. They might not be able to appeal the panel's decision to the AAT, but we think they should retain the right to appeal the ASADA CEO's decision to the AAT and we're going to move an amendment to that affect.

Another amendment ensures that there would be some protection for national sporting organisations from civil liability where the actions are in line with the National Anti-Doping Scheme. That protection would extend more broadly. Again, I'd like to quote the Australian Athletes Alliance, who say:

We oppose this amendment because it would deny an athlete any recourse if they suffer a loss as a result of their NSO's—

national sporting organisation's—

breach of its duty of care.

Even for an athlete who is exonerated, the ramifications of an anti-doping matter on their career, mental health, and reputation can be substantial. Accordingly, an NSO must be required to exercise due care and, if it fails to do so, an athlete should be able to hold it to account.

We've heard of athletes who are not able to compete after circumstances beyond their control, such as, as I said earlier, not being able to provide a second sample because they had to catch a flight, even though their first sample was clean. There are lots and lots of stories. Some of them are from household names, people who have competed internationally. Some are competing in their spare time on top of full-time work. There's an example that's in the news at the moment—the sample taken from Bronson Xerri in November 2019 where the results weren't released until months later in 2020. Of course where there's a reasonable suspicion it's appropriate to conduct an investigation, but surely it should be timely and transparent given the impact it's going to have on that person's life?

Finally, there's an amendment that would establish an ombudsman to support athletes. We think that's important. The legislation that's been passed by this place is significant. It will result in major changes to the sports integrity framework. We think there should be an athletes ombudsman established. Again, we want a clear system and we want a level playing field, but we also want to ensure some basic fundamental rights for athletes who are under investigation. So we support the overall objective the government is pursuing, but we will be moving amendments to make the system fairer. (Time expired)