Dean Smith (WA, Liberal Party) Share this | Link to 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.

Wendy Askew (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I rise today to speak on the Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019. As chair of the Senate's Standing Legislation Committee on Community Affairs, I'm very pleased to make a contribution in relation to this bill.

On 17 September 2019 the House of Representatives introduced the Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019 to parliament. It was referred to the Senate's standing legislation committee on 28 November, and the committee tabled its report on 24 February this year. The bill was introduced to the Senate on 5 December last year.

This bill seeks to improve the ability of the Australian Sports Anti-Doping Authority, ASADA, to perform its functions within an environment both here in Australia and internationally, where doping has become increasingly more complex and sophisticated in recent times. This bill implements recommendations from the report of the review of Australia's sports integrity arrangements, which is also known as the Wood review. This review was conducted in 2017 and chaired by the Hon. James Wood AO, QC, as part of the Australian government's work to develop a comprehensive national sport plan.

The Wood review report was delivered to the then Minister for Sport in March 2018 and published on 1 August 2018. The Wood review has been the most comprehensive examination of sports integrity arrangements ever undertaken in Australia, if not the world. It found sports are tested by a range of growing integrity threats. Such threats include doping; sports wagering throughout the world, particularly through illegal online gambling markets; organised crime infiltrating and exploiting the sports sector; corruption in sports administration; and growing participant protection issues which include the sexual abuse of minors in sporting environments.

As we heard in September last year, when this chamber debated the National Sports Tribunal Bill 2019, the creation of a National Sports Tribunal was one of the key recommendations that stemmed from the Wood review. This review was conducted in response to the integrity of sport being threatened from all corners of the globe. The Wood review recognised that a fair, safe and strong sport sector that is free from corruption is something highly valued in Australia, particularly by the sporting organisations and the 14 million Australians who participate in sport annually.

Now more than ever, as we start to come out of the social-distancing restrictions that were required over the past few months to stop the spread of coronavirus, the value of sport has been elevated even further. Sporting participants, organisations and viewers have been eagerly waiting for sports to be deemed safe again. In the coming weeks we'll see participants joining sports at all levels and renewing their desire to be part of such activities, including the AFL tonight. However, there is no place in these activities for doping, and we deserve to protect ourselves from threats to the integrity of our much-loved sports.

In examining doping, the Wood review found that this practice was more prevalent and widespread than ever among athletes at all levels. In addition, the review found that doping in sport was enabled by the increasing availability of highly sophisticated techniques that make it harder to detect. Doping is becoming harder to detect by urine and blood sample analysis alone; we need intelligence and investigations to detect doping incidents and programs. Organised crime is involved in the supply of performance- and image-enhancing drugs, the review found, with statutory protections and powers under the Australian Sports Anti-Doping Authority Act 2006—the ASADA Act—not sufficient for the increasing need for intelligence based investigations.

This review showed that something needed to be done to clean up sport in Australia. The Wood review made a number of recommendations, including making amendments to the ASADA Act, to allow the authority's regulatory functions to be carried out more effectively. These amendments 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 through improving statutory protections for information provided to ASADA; and strengthening ASADA's disclosure notice regime.

One of the major recommendations of the Wood review is to amend the Australian Sports Anti-Doping Authority Act 2006 and the Australian Sports Commission Act 1989 to abolish the Anti-Doping Rule Violation Panel. The anti-doping rule violation process was noted in the reviews as being overly bureaucratic, inefficient and cumbersome, and one of the most complicated of any country in the world. This bureaucratic process was confusing for anyone facing a violation allegation. Additionally, some of the steps in the process were duplicated, which led to delays in final determinations for those hearings. The proposed amendments in this bill seek to speed up this convoluted process while still allowing the athlete and relevant supporting body a fair hearing. The relevant amendment will remove the Anti-Doping Rule Violation Panel from the process, giving full responsibility to the ASADA chief executive officer to manage. While these amendments remove a participant's right to appeal to the Administrative Appeals Tribunal, the participant would still have recourse against any decision handed down by ASADA through their ability to seek judicial review.

The proposed simplified anti-doping rule violation process will take the following form: the ASADA CEO will review evidence and determine if there has been a possible violation. After the CEO determines there has been a possible violation, the person is notified and invited to provide a submission within 10 days. The ASADA CEO will review the submission and if they still think a possible violation has occurred they will notify the relevant person and supporting body and make a recommendation to the sporting body as to the consequences of the assertion. The person may then accept or contest the infraction in a tribunal.

The Anti-Doping Rule Violation Panel was intended to provide independent oversight of the violation process. However, submissions to the Wood review from national sporting organisations and from ASADA itself stated that the panel's involvement was time-consuming, overly complicated and duplicated procedures, thus creating inefficiencies in the process. Article 8 of the World Anti-Doping Code requires that the rights and obligations of athletes or support persons to be determined by hearing bodies. The National Sports Tribunal, which was established in March this year, will serve as a hearing body for the purposes of article 8 for a significant number of athletes and support persons. The tribunal will ensure that members of the Australian sporting community have access to an efficient, effective, transparent and independent specialist tribunal for the fair hearing and resolution of sporting disputes. The tribunal can require witnesses to attend an interview, answer questions, give information and produce documents, but will not be subject to direction from any party so there is assurance that anyone appearing before it will receive an impartial and independent hearing.

It is important to note that the proposed amendments maintain Australia's ongoing commitment under article 3(a) of the United Nations Educational, Scientific and Cultural Organization International Convention Against Doping in Sport to adopt appropriate measures at the national and international levels that are consistent with the principles of the World Anti-Doping Code.

ASADA was established in 2006 with a statutory investigations function, but the organisation had no ability to compel people to cooperate with its hearings. ASADA investigators could only request people to attend an interview, but they could decline the request or agree to attend an interview and then not show up. There was no recourse to compel them to appear. In addition, there was evidence that doping violations were being organised by people who were not subject to antidoping policies of one sport or another, so the sporting authority could not use its contractual powers to require these people to cooperate with antidoping investigations. The 2013 amendments were intended to address these problems.

The Wood review found that for ASADA to effectively execute its intelligence and investigative functions the right to claim privilege against self-incrimination should be excluded. In the past ASADA relied on the cooperation of national sporting organisations to require athletes and other relevant people to answer questions, but the proposed amendment means ASADA will not have to rely on cooperation through private contracts.

Further, doping violations, allegedly committed by an athlete or a support person, are often facilitated by a third person who is not bound by the terms of a sport's antidoping policy. ASADA could issue such a person with a disclosure notice requiring them to attend an interview to answer questions, but has no ability to require them to answer questions or to answer them truthfully. Under the proposed amendments, answers, information or documents given by someone under a disclosure notice will not be admissible in any proceedings other than those proceedings in connection with the ASADA Act or the Australian Sports Anti-Doping Authority Regulations 2006. This provision presents a reasonable and proportionate safeguard on the use of the information obtained.

It's important to state here that a disclosure notice cannot be issued to a medical practitioner unless the ASADA CEO believes that the medical practitioner is involved in a possible violation of antidoping rules. This limitation recognises the confidential nature of the doctor-patient relationship and the need to prevent arbitrary inferences with that relationship.

This bill also seeks to amend the Australian Sports Anti-Doping Authority Act 2006 to extend protection for ASADA and national sporting organisations and their staff against civil actions when exercising antidoping rule violation functions. This protects ASADA and national sporting organisations in their role when presenting evidence or material against an athlete or support person at a hearing, issuing an infraction notice or making recommendations about a provisional suspension.

The Wood review identified that, under the sporting administration body rules, sporting organisations are required to perform similar antidoping rule violation functions to ASADA. The ASADA Act protects the ASADA CEO, the body's staff and engaged personnel from civil action in their role of performing such functions, but the sporting organisations and their staff do not have the same level of statutory protection against civil action when performing similar functions. Antidoping matters are becoming more complex so the role of these organisations is an integral part of the investigative process. However, a lack of protection has presented a potential barrier for the participation of these organisations in such investigations.

The extension of the immunity is a reflection of the fact that a sport may be required to do things as a result of ASADA's exercise of its legislative functions. For example, consider a situation where the ASADA CEO advises a sporting organisation that there is evidence an athlete has committed a violation. The organisation suspends that athlete, pending a hearing by a sports tribunal, and the tribunal finds the evidence is not sufficient to prove a violation. The sporting organisation could be exposed to civil action for the suspension. Under the amendments the organisation would be protected against such action.

The Australian government has always supported a fair, safe and healthy environment for athletes. We're committed to providing an environment for clean sport to flourish. Sport not only provides the physical activity our body needs, but the mental and social benefits are widespread too. Doping is a major threat to the health and wellbeing of our athletes, but also a threat to our sporting way of life, because it sullies all the good that sport provides within our society.

Liberal member for Bennelong and tennis player John Alexander OAM spoke on this bill in December last year in the House of Representatives. As a former professional sportsperson, Mr Alexander knows the value of sport. He also knows the value Australians place on sport. He explained when speaking:

Australians don't just expect our sports people to win; they expect them to do so fairly and within the rules. Where they don't do this, we expect them to face the music.

We don't like unfair behaviour in sport, and doping presents unfair behaviour of the worst kind.

In commending this bill to the Senate, I ask you to consider Mr Alexander's words further. He said the amendments proposed in this bill:

… will ensure that athletes can have confidence that they are playing on an even field, and Australians can have faith not only that the sports that we're watching are fair but that our Australian sports men and women are representing our country with the same ideals of fairness and equality that their forebears have had for over 100 years.

I commend this bill to the Senate.

Richard Colbeck (Tasmania, Liberal Party, Minister for Aged Care and Senior Australians) Share this | Link to this | Hansard source

I thank all senators for their contributions to this very important piece of legislation in this country's continued efforts to maintain a globally-leading framework for the fight against doping in sport. I acknowledge the opportunity to work with senators across the chamber and acknowledge the discussions I've been able to have with my counterpart, Senator Farrell—I'm sorry that you won't be able to be in Adelaide for the showdown on Saturday night as we resume the Aussie Rules around the country.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

Have you got a seat?

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

I'm staying here.

Richard Colbeck (Tasmania, Liberal Party, Minister for Aged Care and Senior Australians) Share this | Link to this | Hansard source

I understand tickets are very, very highly sought after! But you'll be like the rest of us; we'll all enjoy the game on the television. It is great to see sport recommencing around the country both at a community level, importantly, and on our television screens. It's been very difficult being the Minister for Sport without any sport happening.

The fight against doping in sport continues to get tougher. The key factor in addressing doping across the world is the unrelenting commitment of the international sporting movement and governments to work together to implement harmonised programs that are robust, effective and fair. Australia continues to be at the front of the fight against doping in sport. To ensure that we remain there, Australia's antidoping capability needs to be enhanced. We need to streamline the antidoping violation rule process and reinvest those efficiencies back into ASADA and sporting organisations to enhance intelligence, investigations capability and, importantly, educational resources to support athletes across all sports and at all levels.

This bill amends the ASADA Act to enable key measures to be implemented so that Australia meets its obligations to contribute to a safe and fair sporting environment, safeguard athlete health and continue to protect the fundamental values of sport. I indicate at this point in time that we will be supporting the amendments proposed by the opposition that will be proposed during the committee stage. I again thank all senators for their contributions to the debate on this piece of legislation and commend the bill to the Senate.

Question agreed to.

Bill read a second time.