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

I rise today to also speak on the introduction of the bill here that seeks to align Australia's antidoping legislation with the revised World Anti-Doping Code. Before I speak to specific aspects of the bill let me put on the public record that the Greens, like the current government and indeed the opposition, want to see our sports to be clean and free of drug cheats. I know there is a view in some parts of the community that this is a battle that we cannot win and in fact what we should do is effectively admit that it will be impossible to eliminate doping from sport and therefore drop any effort to try to combat doping in sport. I do not subscribe to that view. I think it is really important for the integrity of sport that we know that people are competing on a level playing field. I also think it is very important in terms of people's health. Some of the substances that are used are potentially very, very harmful. Indeed, we have already seen a number of high-profile athletes who have had significant complications as a result of drug or performance-enhancing substances.

To get on to the substance of the bill, the bill seeks to align Australia's sports and antidoping act with the world code—that is, the WADA World Anti-Doping Code. It does this through a variety of mechanisms. It creates a new part which would mean that somebody who is associating with an individual that is deemed to have been a prohibited person is in fact subject to a penalty. That is, should an athlete associate with another individual and that individual is somebody who is deemed to be a prohibited person, the athlete themselves and not the person who is deemed to be prohibited would be subject to a penalty. The Greens have got serious concerns about that. It challenges the right to freedom of association. We are concerned about that specific aspect.

There are a number of other parts to the bill that we think are sensible: the fairly minor changes to the Australian Sports Drug Medical Advisory Committee; the provisions around information sharing; and the removal of the requirement for the Anti-Doping Rule Violation Panel to maintain a register of findings. We understand the move in that direction. We do have, however, broader concerns about the doubling of penalties that will be implemented as a result of this change. On balance we think the time has come for a much broader review into the Australian Sports Anti-Doping Authority. We have got an opportunity here to decide whether the current framework we have adopted is in fact achieving what it sets out to do, and that is to ensure that people are competing on a level playing field.

We do not think the majority report into this bill gave enough attention to the concerns that were identified by a number of groups. There were concerns identified by athletes' associations, by a number of people within the legal fraternity, who had very serious concerns about the impact of this bill on athletes and their families, and particularly on athletes who are not engaged in any serious antidoping violation. Let us acknowledge here that there is a spectrum. On one end of the spectrum we have got the Lance Armstrongs of the world—the people who are engaged in deliberate, systematic, deceptive cheating. No-one, I think, would argue that someone like Lance Armstrong deserves anything other than the full force of the law when it comes to antidoping. But there is a spectrum. We have seen recently investigations into the Essendon Football Club and indeed Cronulla. We have seen football clubs push the boundaries, shall we say. It appears now, with the issuing of infraction notices, transgressing in some instances. But then at the other end of the spectrum we have innocent athletes who may be caught up, for example, in the prescription of medication from their doctor that may in fact be captured under the WADA code as a banned substance. They will be subject to a doubling of the penalties along with other people, as outlined in this bill.

So our concern is that the bill does not target accurately enough or appropriately the people we want to weed out of sport—that is, the drug cheats—and there will be many innocent athletes who will be caught up in this. Often we have this debate about sport and we have this view of sports people at the elite end of the spectrum, but in fact most people who are involved in sport do not play sport professionally. They may be in second- and third-tier sports. Of course there is concern about their ability to represent themselves in inadvertent or innocent breaches. There is a doubling of the penalties under the current code. A two-year penalty will now be doubled to four years. Somebody who may be guilty of an inadvertent breach, who previously would have been suspended for one year, may now, as a result of these changes, be suspended for two years. That is a significant change. If we are going to introduce legislation like this we need to ensure that we are not using a very blunt instrument to tackle people who are not intended to be the target of the antidoping framework that we have in this country.

The WADA code effectively is designed to address the legal use of performance-enhancing drugs, but we have to recognise that there are many other ways that we can achieve that aim and that in fact many other countries have pursued a different path to the ones we have pursued. Rather than targeting an athlete because they are associating with somebody who is deemed to be a prohibited person—again, putting the onus on the athlete—why is it that we cannot adopt some of the other measures that were identified during the hearing into this bill, which look at other opportunities that might exist to target people who are involved in the importation and distribution of what are often illegal substances. It seems to me that through the framework we have adopted, which is one of strict liability for and onus on the athlete, we are ignoring many of the other issues that exist further up the chain and that, indeed, we are targeting athletes who in many cases will be innocent of a serious breach. We could amend sections of the Crimes Act, as was suggested during inquiry, because of the issues I have just spoken about.

We heard from the Australian Athletes' Alliance, which represents Australia's eight major playing associations, about 3½ thousand elite athletes, and which was very strongly opposed to the bill on a number of grounds. Its view is the view that I have just put forward, that the legislation does not do enough to protect the rights of 'clean' athletes and that it is often those people who are the victims of antidoping legislation, while the serious drug cheats, those people who do it deliberately and systematically—the Lance Armstrongs of the world—are very rarely captured by legislation such as this. There is a huge gulf in the problem that we face—the issue of drug cheats in sport—and the outcomes that the bill is trying to achieve. We need to keep an open mind about other possible measures that we can introduce.

Australia is saying that we have to change our own antidoping framework to align with WADA code, but there are major sporting associations right around the world that have made a decision that the WADA code does not actually address some of the issues in the way it needs to for their sport. We were told right through the inquiry that we had no choice other than to sign up to this legislation, because if we did not align our legislation with the WADA code there would be serious penalties. It is not the case in the US. In the US some major sports, such as the National Football League, have not signed up to the WADA code. They have made a decision that they accept that the WADA code has changed The NFL has decided to take a very different path. The NFL uses negotiation between the employer—the major sporting bodies—and their employees, the athletes, to make very clear what expectations exist around their employment. That includes ensuring that athletes are not using any substances that may be deemed to be performance enhancing. You have only to look at the investigation into the Essendon and Cronulla football clubs to know that this is a very blunt tool. It is very difficult to achieve the desired outcomes simply by increasing the powers of our antidoping authority. Maybe we need to look at other opportunities. The NFL has shown us that it believes that there is a different pathway open to us. We need to explore it.

Doubling the penalty, from two years to four years, makes it for many people a career-ending penalty. If you are footballer in your mid-twenties in one of the major codes and receive a four-year ban, that is the end of your career—done and dusted. What if that breach is the result of being within a sporting organisation that assures you that what it is doing is within the bounds of the law but which later turns out to be something that is subject to a four-year ban? Imagine you are a young kid from the country. You come to a football club. There is a culture within that club of sporting personnel providing and administering injections or other substances. You are reassured that what is being done is absolutely within the antidoping framework. Under this legislation, you are expected to challenge that. You are expected to have the knowledge, the wherewithal and indeed the confidence to take on your employer and challenge what you have been given through your sporting organisation. That is the problem with this strict liability. The onus ends up being just on the athletes rather than on the employer and the sporting code. What you end up with is a situation where young athletes, who may be taking a substance, thinking that what they are doing is appropriate, end up having their career end. That is what will be the impact of increasing the ban from two years the four years. It goes too far. The WADA code is really designed with an eye on the Olympic Games, and international competition with a specific focus on Olympic competition. Because we have adopted it as a universal framework that is to be used through all of our sporting codes we end up with penalties that are disproportionate and not appropriate for some of our local codes. There was no justification expressed to the inquiry that this increase was necessary. It is not as though we were given any convincing evidence that simply increasing the penalty from two years to four years would result in a reduction of the number of people who use illicit substances. I think there are often assumptions built into this, but the drivers that are at play here are not going to be addressed by simply doubling the penalty and potentially ending someone's career.

The question of whether ASADA actually needs more powers as opposed to more resources was alluded to through the inquiry, but we did not really get to the heart of that. We have seen, through the investigation into those two major codes, a complete inability to provide a timely resolution to those cases. It does call into question whether we need to have a much broader look at the resourcing of that organisation, if that is going to be the pathway through which we are going to prosecute the attempt to reduce doping in sport.

We also know that the focus on testing and penalties is probably, again, not backed up by the evidence in terms of where most of the gains are to be made. For example, in 2011-12, we saw 10½ thousand drug tests and there were 13 positive results. A couple of those were for illicit drugs that most people would not consider to be performance enhancing. Just think about that—13 positive tests out of 10½ thousand. It points to the fact that we need to look at different ways of prosecuting this, and simply increasing powers, increasing penalties and putting the onus on the athlete around changes to things such as prohibited association probably are not going to give us the sorts of gains that we want to achieve. What we would like to see is a much more broad-ranging inquiry into our antidoping framework. We think that is the best place to start.

It is interesting that in the previous parliament, when a bill was presented by the then Labor government to increase ASADA's powers—that is, to increase powers around the right to silence and a number of other matters—the coalition voted against those changes. I was involved in that inquiry. It was a bill to increase ASADA's powers, and we had the coalition vote against that legislation. Granted, it was at the start of the investigations into the matters at Essendon and Cronulla, and there was clearly a lot of interest in that. I do not want to speak for the coalition, but I suggest they smelt a political opportunity there and were prosecuting their case around the way that was handled. But it is interesting that they at that time refused to grant ASADA more powers, sought to make a political issue of what was going on in the investigation and now we have them in government seeking to introduce a bill that goes even further than the previous government went in terms of granting ASADA more powers. So we have this very confused attitude to how it is that we should be prosecuting the case around drugs in sport.

What I would like to see—and I think the time has come—is a much broader inquiry into the current Australian Sports Anti-Doping Authority, to look at the level of resourcing available to them, to look at whether our commitment to the WAD Code is the best way of reducing drug use in sport—that is, not just Olympic sport but all of our major sporting codes. I think that is where we are going to make the most gain here when it comes to this issue that we all think is incredibly important—that is, trying to ensure that it is the team with the best athletes rather than the best pharmacists who achieve success on the sporting field.