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

I rise to speak on the Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019. The past few months have presented unprecedented challenges for Australia's sports sector. The appropriate and necessary public health measures put in place to stop the spread of COVID-19 have forced the shutdown of very nearly all sporting activities at all levels from the grassroots to our elite competitions. Over the past fortnight, we've started to see the staged resumption of certain activities, including the return of sport. These small but important steps are encouraging to the Australian sporting clubs and organisations. But, just like other aspects of our lives, we know it will take some time for the Australian sporting landscape to look anything like it did before this global health and economic crisis hit. The ongoing impact on sport makes it more important than ever that we do everything we can to protect the integrity of sport. This bill seeks to do that by strengthening Australia's capacity to prevent, detect and deal with doping in sport.

Australians love their sport, and many of us can't wait to again be inspired by our favourite teams and athletes in local and national competitions and the international sporting stage. My team is resuming this Saturday night.

Senator McKenzie interjecting—

No, the Adelaide Crows will wipe out Port Adelaide, I'm sure, at Adelaide Oval in front of the 2,000 lucky people who are going to be there—only 500 Adelaide Crows supporters, unfortunately, because it's a Port Adelaide home game. I see the contribution from the former sports minister there.

They love their sport, and when sport returns these achievements will again bring us together, uphold the reputation of Australian sport and make us love it even more. Those things, which we hold dear and have sorely missed over the past couple of months, are threatened whenever revelations of doping are reported. Australians value fair play and expect a level playing field in sport. Our confidence in the integrity of sport is undermined by doping. Doping leads us to question whether the sporting events we love to watch are really being contested on a truly level playing field. In government, Labor recognised the need to upgrade and update Australia's antidoping regime to keep up with new and evolving risks. For instance, in 2012 the federal Labor government established the National Integrity of Sport Unit, and in 2013 we passed legislation to strengthen the Australian Sports Anti-Doping Authority powers.

Sports doping threatens to continue to constantly evolve, so it's important that Australia's protective measures are regularly reviewed and, if required, updated. In response to those ever-changing risks, in August 2017 the government announced a review of Australia's sports integrity arrangements. The review panel was chaired by Justice James Wood, and its report has become known as the Wood review. After receiving the Wood review in March 2018, the government released its response in February 2019. The review was detailed and extensive—nearly 300 pages containing 52 recommendations. One of those recommendations directly relates to this bill. Recommendation 18 states:

That the Australian Sports Anti-Doping Authority's regulatory role and engagement with sports in relation to the audit and enforcement of sport's compliance with anti-doping rules and approved policies be enhanced by establishing regulatory compliance powers exercisable by the proposed National Sports Integrity Commission in collaboration with (and at the request of) the Australian Sports Anti-Doping Authority CEO.

This bill seeks to implement recommendation 18. The review also recommends retaining ASADA as Australia's national antidoping organisation. However, the government has decided to bring antidoping operations under the umbrella of a new agency, Sports Integrity Australia. This legislation to establish the agency passed both houses of parliament in February this year and was given assent in March. ASADA has said it supports the inclusion of antidoping activities in the remit of Sport Integrity Australia, and that move is supported by the majority of Australia's sporting organisations.

Labor supports measures designed to protect the integrity of Australian sport and supported the passage of this bill through the House of Representatives last year. However, stakeholders, including the Australian Athletes Alliance, the AAA, have raised concerns with us about the impact some sections of the bill might have on individual rights. In response, Labor has worked closely with stakeholders towards a better balance between stronger antidoping capabilities and the athletes' individual rights. Initially, we sought detailed briefings on the first version of the bill from the office of the former Minister for Sport, Senator McKenzie, and that was willingly provided, and officials involved in drafting the bill. We continued that process with Senator Colbeck, who took over the portfolio after the last election.

Labor initiated the referral of the bill by the Senate to the Community Affairs Committee for a short inquiry, which reported earlier this year. We did that to give stakeholders an opportunity to outline issues relating to certain specific aspects of this bill. Concerns raised during the inquiry and with Labor directly have largely related to the potential for some aspects of the bill to unfairly impact on individual rights. One of the most consistently raised stakeholder concerns has been the lowering of the threshold for the disclosure notice from reasonable belief to reasonable suspicion. Athletes groups have suggested that lowering the threshold would effectively deny athletes protections that are offered to criminal suspects.

Stakeholders have pointed out that complying with disclosure notices, including accessing legal advice, can be costly and time-consuming. Many athletes, particularly those in Olympic sports, are not on six- or seven-figure salaries like those attracted by the stars of some of our local codes, for example. They don't have the resources to secure legal representation for complicated processes which, under this bill in its current form, could be initiated with a lower threshold than that required for serious criminal investigations. Representative bodies argue that putting athletes in a position where such costs are incurred merely on the basis of reasonable suspicion is unfair. The scrutiny committee has queried the need for the changes and asked why a reasonable belief could not be formed on the basis of intelligence gathered while investigating a potential antidoping breach.

Labor flagged, during the debate on this bill in the other place, that we might seek to move amendments to this bill in the Senate if we believe that the matters raised in the committee inquiry required changes. We do think that change is needed. Let me be clear: Labor supports strong antidoping measures in sport, but we also support the intent of this bill to strengthen Australia's defences against doping in sport and look forward to continuing our commitment to that goal. But if the balance between the necessary new and enhanced powers and the rights of individuals can be improved then they should be. Stakeholders believe maintaining the current threshold would lessen the potential for unintended cumulative impacts on individual athletes' rights that could result from the combination of a lower threshold and other sections of the bill. That's why it's Labor's intention to move an amendment to this bill that would maintain the current threshold of reasonable belief for the issuing of the disclosure notice. We have sought to work constructively with stakeholders and throughout the parliament to improve the balance of this bill, and we hope to gain the support of the Senate to do that whilst still ensuring strong anti-doping regimes to protect Australia's integrity in sport.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to 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)

Bridget McKenzie (Victoria, National Party) Share this | Link to this | Hansard source

Probably like Senator Di Natale and Senator Farrell, I am rapt that the true code starts again tonight and we'll have AFL back on our TVs. The southern states are very excited about that. Haven't we missed it? I am just thinking about the impact of COVID on community sport and our representative athletes who were hoping to head off to the Tokyo Olympics. We've missed Wimbledon this year. There have been a whole raft of things that are part of not only our daily lives, if you are involved in community sport, but our national identity on the international stage. Like everyone else who has contributed to debate on this bill, I am very much looking forward to community sport and our international sporting arrangements getting back on track.

Enhancing Australia's antidoping capabilities is incredibly important when it comes to sporting integrity. Our young Australians look up to our athletes and our sporting stars as model citizens for how to conduct themselves, how to understand sportsmanship and fairness and how to play in teams—key skills and characteristics they need for life.

As others have mentioned, sport is also big business. A huge number of people right across our economy are employed in sport. Volunteering levels are through the roof. Sport participation assists with great health and social outcomes. As I said earlier, it also instils national pride as we see Australian athletes and teams always punching—or riding, swimming or running—above their weight, which makes us very proud. We also are known globally for not just being hard at it on the track, in the pool or on the field but also being champions of fair play, a fair go and integrity.

Sport has shaped our culture and identity as Australians and reflects our broader values of sportsmanship and respect for the umpire. It unites our nation like nothing else, bringing people with diverse political views and people from different geographies and cultures together to celebrate our success as one. From grassroots to the world's iconic grass courts and arenas, sport gives us our heroes. We celebrate Steven Bradbury not only because he won a winter Olympics gold medal but because he was there against all the odds and stood tall as those around him fell. From Betty Cuthbert to Louise Sauvage, we share Australia's victories and we expect a level playing field.

This bill really puts us as Australians as leading the world in setting up a sports integrity system. On 5 August 2017 the then sports minister, Greg Hunt, announced a review of Australia's sports integrity arrangements to be led by Justice James Wood QC. I had the great privilege to release that Wood review in August 2018. It was a key component in the development of Australia's first comprehensive national sports plan, Sport 2030. I thank James Wood and his fellow panel members for their efforts in producing the most comprehensive review of Australia's sports integrity arrangements ever conducted.

The Wood review found that doping is much more prevalent and widespread than ever among athletes at all levels. We often think of the high-profile examples that have been mentioned in contributions thus far, but the Wood review found that teams at the amateur level and in junior competitions were being affected and that we really needed a strong system of monitoring and compliance right across the sporting landscape to ensure that those young athletes were protected. The Wood review also found serious and organised crime was involved in match fixing and the supply of performance-enhancing drugs. Under our nation's first sports plan, Sport 2030, we now have a clear path to know what is needed to ensure we build a more active Australia, achieve sporting excellence and back community grassroots sports at the same time, but we must safeguard the integrity of sport, which this bill seeks to achieve.

The election and subsequent introduction of this bill into parliament post-election last year has allowed for additional consultation with stakeholders in both private and public sectors, and as a result we now have greater clarity and context to the proposed amendments in the bill.

Since the bill's first introduction in the previous parliament changes have been made to allow ASADA's secrecy provisions to be included within schedule 3 of the Freedom of Information Act and very minor and consequential amendments to harmonise operations within the Sport Integrity Australia bill. The proposed amendments will streamline administrative procedures in relation to antidoping rule violations and reduce the burden on sports athletes and support personnel.

These amendments are supported by the feedback of stakeholders and include the removal of the Anti-Doping Rule Violation Panel from the rule violation process and the removal of a pathway for review by the Administrative Appeals Tribunal of a preliminary antidoping rule violation decision of the ASADA CEO.

These amendments, along with the previously introduced National Sports Tribunal Bill, are a complementary package of reforms. The ultimate decision as to whether a person has committed a violation will be made by a fair, independent, impartial decision-maker. This government is implementing vital reforms to safeguard the integrity of Australian sport and combat present, emerging and future threats, including doping, match fixing, illegal betting, organised crime and corruption.

These reforms include establishing a new single national sport integrity agency, Sport Integrity Australia, which brings together ASADA, the National Integrity of Sport Unit and national sports integrity functions of Sport Australia. Legislation establishing Sport Integrity Australia was passed by the Senate in February this year. It stipulates the start of the new agency on 1 July 2020, and that will be headed by David Sharpe OAM.

Sport Integrity Australia will focus on regulation, monitoring and intelligence, policy and program delivery, including education and outreach. Sports betting integrity capabilities will be maintained with ongoing support of the world-leading Sports Betting Integrity Unit within the Australian Criminal Intelligence Commission.

The government has established the National Sports Tribunal, which began operations in March this year. That's been created to provide a transparent, independent and cost-effective resolution to sports disputes. The National Sports Tribunal will be trialled over two years and comprises an antidoping division, a general division and an appeals division.

Our government's record on safeguarding sport is there for the world to see. In February last year, on behalf of the Australian government, I signed the Macolin convention—and it's great to see the foreign minister, who was with me on the day, Senator Marise Payne. It's the only multilateral treaty specifically aimed at combating match fixing and other related corruption in sport. What we do know is that organised crime doesn't restrict itself to state or national boundaries. This is a worldwide problem, and we need to work with other jurisdictions to actually mitigate the impacts and ensure that sport is fair for all. The Macolin convention is a great step forward in that effort to protect the safety, fairness and integrity of the sporting competitions we all enjoy so much.

Membership of the Macolin community enables Australia to obtain formal ongoing access to international counterparts and meetings to work together and drive these measures to combat sport corruption at a global level. Signing the convention supports national match-fixing criminal legislation and complements similar laws, where they exist, within our states and territories to protect sport.

The integrity of sport is of paramount importance, and our athletes expect to compete on a level playing field. We want them to compete on a level playing field, because we know we as Australians do alright on a level playing field. As I said earlier, sport keeps us fit and healthy. It's the social glue that binds us together. It creates communities and underpins much of community life, especially for those of us that live in the regions. Boston Consulting Group did a review of Australian sport in 2017 and it showed that every year 14 million Australians participate in some form of sporting activity. As I said earlier, sport generates in excess of $40 billion of economic activity, making upwards of three per cent of our GDP—equivalent to our agriculture sector. So we're not only just good at it, it underpins a lot of our economic activity, and a lot of Australians are employed within our sporting industry.

Each year the Australian government invests more than $300 million to support our high-performance athletes as they prepare for a variety of international competitions, and for pathways for younger athletes as they seek to aspire to the very highest levels of sporting prowess. I'm very proud of our government's record of investing millions to encourage greater participation at the community and grassroots levels in sport. We had a raft of measures under Sport 2030, including community infrastructure investment to help sporting clubs build those change rooms to ensure that young women and girls who are seeking to participate in traditional male sports such as NRL, rugby union, AFL, cricket et cetera, have somewhere where they can safely get changed for their game. That's been a great boon for so many sporting clubs out there in communities.

Another program to increase participation focused on senior Australians. Once you get a little older, and I'm in that category, and you don't run as fast as you used to, you might give up participating in your loved sport. But then you also end up missing out on the social connection that you get from engaging in that community activity. So there was a raft of money focused on ensuring that we encourage senior Australians back into their local community clubs—whether they be soccer or netball—with modified game plans, to ensure that they're also staying physically healthy.

We also had a raft of measures that support the increase in participation, which I'm incredibly proud of. Our government is backing the National Sport Plan and working with state governments to find pathways for young athletes, whether they are growing up in rural and regional areas and getting to that state-level competition, or financial support to get to the national competitions which, without support, can often be a real barrier for them to pursuing their dreams.

Sport plays a fundamental role in Australia's life. We have obligations under UNESCO's International Convention against Doping in Sport to abide by the principles of the World Anti-Doping Code. To that end, the Wood review recommended a range of enhancements to the capabilities of ASADA, and our government is committed to delivering on those recommendations. The Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill will assist in combatting the complex and evolving nature of doping in sport. I'm very proud to be part of a government that takes these matters seriously, because sport is powerful. We want people to be participating in it safely so that we can all be rightfully proud of Australian athletes on the international stage and be comforted that the juniors who are making their way through the ranks on their way to that elite level, are equally protected from undue influence from organised crime and other negative influences.

Our response will protect our cherished Australian sports for generations to come, and it will have a lasting effect on the lives of all sport-loving Australians. I'm sure that those sitting opposite share that aspiration for safe, fair, inclusive sport underpinning thriving communities. It was a pleasure to work with the opposition whilst I was the sports minister, in evolving our integrity arrangements. I know that Senator Farrell, as the shadow minister, has enjoyed equally productive conversations with the current sports minister.

This bill will help safeguard Australian sport and combat current, emerging and future threats of doping, match fixing, illegal betting, organised crime and corruption. Parents and guardians of junior athletes will know their children are protected from sport integrity threats and they can be confident that the sports in which they participate are clean, safe and fair. I would like to think there's a lot of bipartisan goodwill around to make sure that that aspiration is achieved, and I've been very buoyed by the contributions thus far. I support the bill.