Tuesday, 10 September 2019
National Sports Tribunal Bill 2019, National Sports Tribunal (Consequential Amendments and Transitional Provisions) Bill 2019; Second Reading
As I was saying earlier, the government has provided examples of similar protections in other Commonwealth legislation, including in section 110Q of the Defence Act 1903. It confers similar protections on the Inspector-General of the ADF and a person acting under the authority of the Inspector-General of the ADF. Section 74T of the Broadcasting Services Act 1992 also confers similar protections on the Commonwealth, the Australian Communications and Media Authority, and ACMA officials in respect of the exercise of functions associated with the maintenance of the Register Of Foreign Owners Of Media Assets.
I'd like to speak, briefly, in anticipation of a second reading amendment circulated by Senator Rice. Labor recognises that sport can play an important role in social inclusion and believes all Australians should have access to opportunities to participate in sport and physical activity, and enjoy their benefits. We believe sport should be inclusive of culturally and linguistically diverse Australians and inclusive of those Australians who are lesbian, gay, bisexual, transgender or intersex.
These bills, however, establish a national sports tribunal, an organisation that will not have a role in developing policy or determining the rules under which sports operate. The tribunal's function will be to arbitrate, by the agreement of the parties, disputes arising under the existing rules of a sporting body. The tribunal will not have the authority to change or enable changes to any rules that might impact on transgender, intersex or gender-diverse Australians. As such, the opposition will also be opposing this amendment, because these bills are not the right vehicle for furthering measures to prevent discrimination.
Having said that, I note that these bills establish the tribunal as a pilot for the next two years. Labor will monitor the establishment of the tribunal and its internal rules and procedures very closely, to ensure that it treats all parties in disputes appropriately under the rules of the relevant sport.
We support the key objectives of this bill. We understand the need for it to be progressed to avoid leaving Australian sport exposed to integrity threats, and we will support the bill in this place today. We will monitor the establishment of the tribunal closely. We will seek to ensure that the rules and procedures put in place once the tribunal is established are designed to appropriately consider the rights of individuals. Labor will also keep a close eye on the tribunal's operations in relation to matters that have the potential to impact on individual athletes' rights. Labor will also continue to engage with key stakeholders on the tribunal and with the government's broader implementation of its response to the Wood review recommendations. We will continue to work with the sports sector and agencies to provide strong, appropriate protections to the integrity and the reputation of sport in Australia. The opposition supports this bill.
It has been said that sport is the window into a country's soul. When we think of ourselves as Australians, we often think of ourselves as a sporting nation and, through that window, we can see a lot to be proud of. Fourteen million of us participate in sport annually, and 1.8 million of us volunteer each year in a whole range of different ways, whether it is in football, soccer, netball, cricket, rugby league, rugby union, basketball, swimming, athletics, tennis—the list goes on.
People who participate in sport benefit directly. There are benefits for physical health, and for mental health—which is so important, as we note World Suicide Prevention Day today. Sport gives us fresh air, the chance to work with others as a team and the elation of overcoming challenges. And sport can be a way of bringing people together. When people show up to play a game of sport together, they connect, and our communities are that little bit stronger.
Sport is so important in Australia, and that's why fairness and integrity in sport are critical. I want to talk a little bit about the importance of sport in Australia and in our society, to underline why fairness and integrity are so important.
Ten years after the terrible fires of Black Saturday, what did the Whittlesea and Kinglake communities do to note the anniversary? They played a game of footy. One of the organisers of that game spoke about what community teams meant: 'We really supported Kinglake, and our football ground was a hub of activity and a staging area for a number of weeks and months afterwards. We just wanted to bring the two clubs and the two communities back together.'
Sport can bring us together as a country. We're now celebrating as a country that the Ashes are coming back home. When the Socceroos and the Matildas compete, people around the country stay up until all hours of the night to watch and cheer them on. And every four years we cheer together, as an Australian makes it up onto an Olympic podium.
Sports can even strengthen our international relationships. The Lowy Institute wrote a report specifically on the potential of Rugby League to connect Australia and Papua New Guinea, a key bilateral relationship. They said:
Sport is an area with great power to connect people and rugby league is the sport with the strongest existing links across PNG and Australia.
It's also a sport with great potential to build new interest in PNG amongst Australians who may not have an existing connection to PNG but are passionate about Rugby League.
But if sport is a window into a country's soul, it can also show us the negative side of Australia. Adam Goodes was named Australian of the Year in 2014, but the racist attacks that he was subject to are a blight on the sport and show us something about Australia that isn't easy to confront. They show how much further we still have to go in addressing the longstanding injustices that modern Australia has not fully acknowledged or dealt with. I would like to quote a part of the AFL's response to two recent documentaries:
Adam, who represents so much that is good and unique about our game, was subject to treatment that drove him from football. The game did not do enough to stand with him and call it out.
We apologise unreservedly for our failures during this period.
An apology is an important step, but it's only one of many steps that are needed to ensure that sport in Australia can represent the vision of ourselves that we want to believe in so that, when we look through that window of sport, we can see a vision of Australia that we want to believe in, not one that we are ashamed of. That's why it's so important to ensure that we have integrity in sport. We hope that these bills will contribute to stronger integrity in Australian sport.
These bills follow from processes that have been underway for years. When the Essendon doping incident occurred, Senator Richard Di Natale spoke about the need for a system that did not just focus on the players but also took into account other individuals and organisations involved in doping violations. The value of sport for individuals and communities is undermined when people do the wrong thing. As fans, we watch the best athletes because we want to see who has the most skill, not who has the best pharmacist. This is something that the Greens have been speaking up about for many years.
In 2017, the government commissioned the Wood Review of Australia's Sports Integrity Arrangements. The Wood review took place over a year, with input from over 40 stakeholder meetings and 30 written submissions. In its final report, the Wood review identified multiple challenges in sport, including the commercialisation of sport, rapid growth in sports wagering and doping scandals. The National Sports Tribunal is being established as part of the government's response to the Wood review to strengthen the integrity of Australia's sports. When introducing the bill in the other place, the government described the establishment of the National Sports Tribunal as a pilot. The two pilot years are an opportunity to see how the tribunal will operate and how it ensures that the rights of athletes are protected. The United Nations Educational, Scientific and Cultural Organization, UNESCO, International Convention against Doping in Sport, to which Australia is a signatory, requires that athletes receive a fair hearing, so it's important that we closely monitor how the tribunal protects athletes' rights during this pilot.
If sport is a window into the nation, it can also show us the progress we're making. The AFL Women's competition is an exciting development, going from 10 teams in 2019 to 14 in 2020. Now, when a young girl takes her footy down to the park for a kick, she can imagine herself being Erin Phillips winning best on ground, Tayla Harris taking the mark of the year or Ashley Sharp kicking the goal of the year. Personally, I'm proud to be a foundation member of the Western Bulldogs' women's competition and to have seen for myself how important it has been for increasing participation in sport amongst girls and young women and how it's attracted a whole new cohort of people to engage with and get involved with both elite and local football.
But sport can also show us the distance we have to go in achieving our vision of a fair Australia. If we want to be a nation that celebrates and includes everyone, then everyone should be able to participate in sport, including trans, gender diverse and intersex people. Tragically, surveys suggest that almost 40 per cent of LGBTIQ+ people who participate in sports have felt unsafe or vulnerable in a sporting environment, and many more choose to not participate, because they don't feel safe.
Everyone deserves to be able participate to safely in sports, and we should support them to do so. Bouquets to the AFL for bringing the women's league into existence, but brickbats to them for how they have managed the inclusion of transgender athletes. The way they dealt with Hannah Mouncey in her attempts to be included in the AFLW draft was nothing short of reprehensible, and she eventually withdrew from the 2019 draft, arguing that the AFL had treated her 'like shit', 'with every effort made to wear me down to the point where I couldn't continue'. The AFL policy requires that trans women maintain a maximum set level of testosterone for at least two years on the basis that higher levels of testosterone can result in a competitive advantage for trans or non-binary athletes, but the AFL also require trans women to submit data on a series of tests which they believe further determine their competitive advantage. This includes the person's height, weight, bench press, 20-metre sprint, vertical jump, GPS and two-kilometre run data. If the prospective player exceeds recorded AFLW averages on these measures, even if their testosterone levels are below the stated requirement, then the AFLW reserve the right to deny their nomination. In doing so, they will explicitly keep players like Hannah out of the league because she's too strong.
Hannah's example gives some insight into the challenges faced by transgender athletes, but I want to also talk about the challenges that intersex athletes face, because they are equally large. We've all heard of South Africa's incredible athlete Caster Semenya. In her own words, 'I am a woman, and I am fast.' But, sadly, it hasn't been that simple for Caster. She's faced a long battle just to participate in the competitions that she excels in. She's had to battle rules issued by the International Association of Athletics Federations which require some female runners whose bodies produce high levels of testosterone to take medication to lower those levels. These rules seem to be a direct effort to target Semenya, who is believed to have a condition that produces high testosterone. Semenya appealed against the new regulations earlier this year, but the Court of Arbitration for Sport ruled against her. Intersex Human Rights Australia, in reflecting on this Court of Arbitration for Sport ruling, stated:
Caster Semenya is a Black South African cisgender woman, born with a variation of sex characteristics, seeking to compete in the sex category she was assigned at birth.
… … …
The decision is more of the same old story: discrimination, forced medical intervention, and decision-making despite a lack of evidence.
Inclusion is powerful, and it's necessary. We see its power when women's sport is championed and supported. I've seen it firsthand at events organised by Proud 2 Play, including their recent lawn bowls event in Melbourne to celebrate Wear It Purple Day. Proud 2 Play work to ensure that all LGBTI+ people feel safe and confident to lead happy and active lifestyles in welcoming and inclusive environments.
Coming back to the AFL—it is finals season after all—they know that, with regard to trans players, they've got to lift their game. They issued a joint statement with Proud 2 Play earlier this year in response to a transphobic video that featured former Footy Showpresenter Sam Newman. The statement says:
The AFL is proud to work with the LGBTI+ community to ensure our sport is welcoming and inclusive, and these comments are damaging to young trans people, and the broader LGBTI+ community.
It's in this context that our second reading amendment was formulated. It's in this context that we are calling upon the National Sports Tribunal, when it's established, to consult with intersex-led organisations and with transgender and gender-diverse organisations; to adopt policies that reflect the 2016 guidance by the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the Darlington Statement 2017; and to ensure access to sport at all levels of competition by all intersex people, including all cisgender intersex women being permitted to compete as women without restrictions or discriminatory medical investigations.
The Greens support this bill. We support the establishment of the National Sports Tribunal as set out in the bill, but its work must be grounded in values of inclusion and equality. That is why we're calling upon the Senate to support our second reading amendment that is aimed at ensuring that that's the case. I move the second reading amendment on sheet 8744:
At the end of the motion, add:
", but the Senate:
(a) recognises that all people have fundamental human rights and are entitled to equal protection of the law without any discrimination, including on the basis of sex, sexual orientation, gender identity or intersex status; and
(b) calls on the National Sports Tribunal, when established, to:
(i) consult with intersex-led organisations, and with transgender and gender diverse organisations;
(ii) adopt policies that reflect the 2016 guidance by the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the Darlington Statement 2017; and
(iii) ensure access to sport at all levels of competition by all intersex persons, including all cisgender intersex women being permitted to compete as women, without restrictions or discriminatory medical investigations."
How timely that this bill is being debated in this chamber only days after the Australian cricket team retained the Ashes as a result of Australia destroying the English team at Old Trafford, winning by 185 runs and so capably led by Tasmania's Tim Paine. It is not only our men's cricket team that has been dominating the world. Last week our Australian women's cricket team, the Southern Stars, won their one-day international series against the West Indies, with Alyssa Healy smashing 100 runs off just 94 balls. And of course Australia's own tennis ace Ash Barty is world No. 1—what more do we need to say? We are a proud sporting nation, but we also value fair and honest competition. I rise today not only to congratulate Australia for being the best sporting nation in the world but to add my contribution on this bill, the National Sports Tribunal Bill 2019.
As the member for Bennelong, Mr Alexander, who knows a thing or two about being a world-class athlete, made note of in his contribution to this bill in the other chamber:
Tribunals are never popular but they are necessary for Australians to have faith in the teams and individuals who represent us.
This bill seeks to establish a national sports tribunal which will offer a cost-effective, transparent, timely and independent dispute resolution function for athletes and sporting bodies. Around the world and, unfortunately, including here in Australia we have seen the results when athletes and sportspeople decide not to play by the rules. Whether it be in cricket, AFL, swimming or weightlifting, just to name a few sports—and the list, unfortunately, goes on—there have been athletes making poor choices to cheat, break the rules or be involved in taking performance-enhancing drugs. When this does happen it not only ruins the reputation of those sportspeople involved and damages the individual sports codes but has the unintended consequence of also ruining the reputation of our country, our great sporting nation. These incidences shape the country. They make national news headlines and often consume the country for days. Those water tank and smoko discussions can last for hours.
The National Sports Tribunal will create a consistent dispute resolution process and allow Australia to maintain our status as the best sporting nation in the world. Currently, some sports have their disputes handled by the individual sports tribunals regulated by the governing bodies for their individual sports. However, not all sports have the capability to run their own internal tribunals. Currently, their only option for anti-doping disputes is the Swiss Court of Arbitration for Sport. This option can be a very lengthy and expensive process for all involved. The National Sports Tribunal will hear anti-doping matters in compliance with the World Anti-Doping Code and other sports related disputes, such as player selection and sport code of conduct matters.
It is proposed that the National Sports Tribunal will comprise three divisions: an anti-doping division, a general division and an appeals division. The anti-doping division, as the name suggests, will hear the anti-doping rule violation disputes. The general division will hear other types of disputes which arise under the rules or policies of a sport, including in relation to code of conduct breaches and disciplinary matters, selection disputes, member protection issues and the like. The appeals division will, again, as the name suggests, deal with appeals from both the anti-doping division and the general division. It will also consider appeals from internal sport-run tribunals in relation to anti-doping rule violation disputes and general disputes. Depending on the nature of the issue, disputes may be heard through a variety of resolution methods, including arbitration, conciliation and mediation.
The creation of a national sports tribunal is one of the key recommendations of the Wood review of Australia's sports integrity arrangements, which was published on 1 August 2018. As I'm sure you would be aware, Mr Acting Deputy President Fawcett, the Wood review is the most comprehensive examination of the sports integrity arrangements that has ever been undertaken in Australia. The review was conducted in response to the growing global threat to the integrity of sport, recognising that a fair, safe and strong sports sector, free from corruption, is inherently valuable to sports participants, sports organisations and the 14 million Australians who participate in sport annually. The Wood review identified inconsistencies in dispute resolution arrangements across the sports sector and the need for a clear, consistent and cost-effective forum for all sports, including small and emerging sports that do not have their own internal arbitration facilities.
The successful introduction of this bill and the subsequent establishment of the tribunal will see the National Sports Tribunal given powers to inform itself, including the ability to summon witnesses and compel the provision of relevant documents. These powers are not available to private arbitral agencies such as the Court of Arbitration for Sport in Switzerland or sports in-house tribunals, and their provision to the National Sports Tribunal will ensure informed decision-making and the provision of natural justice. While the National Sports Tribunal will have the power to compel the attendance of witnesses at hearings and to compel a witness to answer questions, these powers do not abrogate a witness's right to claim the privilege against self-incrimination. The National Sports Tribunal will be one of the few, if not the only, sports dispute resolution bodies worldwide that will have these powers. This will ensure that Australia's sports integrity is second to none.
Our athletes not only represent us as Australians on the international stage but inspire our nation. They inspire our kids to play sport and they inspire people to get out there and be active. Participating in sport is more than just having fun. As we all know—and there is substantial evidence to support the knowledge—regular participation in sport and physical activity increases health outcomes and makes us a healthier nation.
During his contribution to the debate on this bill in the other place, the member for Shortland stated:
Australians quite rightly expect sport to be fair, clean and safe. No nation and no sport are immune from integrity threats that can put at risk these expectations.
I agree wholeheartedly with him. As Australians, we are proud of our sporting culture, and we all want to know that our athletes are fair, clean and safe and that they are participating and operating within the requirements and legislation of their sporting codes. The creation of the National Sports Tribunal will help to keep honesty and integrity in our sport. I commend these bills to the Senate.
I rise tonight to speak on the two proposed pieces of legislation before the chamber, the National Sports Tribunal Bill 2019 and the National Sports Tribunal (Consequential Amendments and Transitional Provisions) Bill 2019. The creation of a national tribunal to resolve sporting disputes was a key recommendation of the Review of Australia's Sports Integrity Arrangements. The Wood review is both detailed and extensive. It is nearly 300 pages long and contains 52 recommendations. Its work builds on Labor's establishment of the National Integrity of Sport Unit back in 2012 and Labor's strengthening of the Australian Sports Anti-Doping Authority's power in 2013. Protecting Australia's sports integrity is an issue that has had bipartisan support over many years. I am pleased to say that this practice of bipartisanship continues today, as Labor lends its support to the establishment of a national sports tribunal through these bills.
As a proud sporting nation, Australia expects sport that is fair, clean and safe. For many Australians, sport is an integral part of their way of life. Whether it's taking the kids to school or club sport or supporting our local and national teams from the stands or from the comfort of our living rooms, there's great value in all of those connections to sport. They enable us to spend time with our family and friends and they strengthen communities by bringing people together. There is also no ignoring the health benefits of keeping active through sporting and, of course, the economic benefits of being the world's sporting capital.
In my own life, I've experienced firsthand the joy of cheering on the Magpies at the MCG in the company of my friends, my family and, of course, the Collingwood cheer squad. Now is an ideal time—with your indulgence, Mr Acting Deputy President—to put on the record my support. And I'm sure if Senator Van were here, we would be wishing Collingwood Football Club all the very best in the lead-up to the 2019 AFL grand final. Regardless of your stripe or your code, there's clearly a lot at stake and a lot for us to protect—