Tuesday, 10 September 2019
National Sports Tribunal Bill 2019, National Sports Tribunal (Consequential Amendments and Transitional Provisions) Bill 2019; Second Reading
Australians expect fair, clean and safe sport. No nations and no sports are immune from integrity threats. Labor is committed to appropriate responses to the real threats facing Australian sporting integrity. We must address these threats because, when the integrity of sport is weakened, it impacts the value of sport to our nation. It can have a negative impact on interest in sport and, in turn, on participation and the health and social benefits that come with it.
It can also have a detrimental impact on the value of elite sport to our economy if attendance and audiences are reduced due to lack of faith in the integrity of elite competitions. Threats to the integrity of sports in Australia evolve, and so must our response to them. The Review of Australia's Sports Integrity Arrangements, the Wood review, was broad and complex, returning 53 recommendations that sit across several portfolios and agencies. The government response to the review included the planned establishment of the National Sports Tribunal, built under Labor's establishment of the National Integrity of Sport Unit in 2012 and strengthened by the Australian Sports Anti-Doping Authority powers in 2013.
Examples of threats to Australia's sporting integrity include the manipulation of competitions through match fixing, spot betting, inside information and more; doping, including the use of substances that are not only prohibited but in many cases potentially dangerous to athletes' health; involvement in activities that threaten the integrity of Australian sport by organised crime; and other matters, including but not limited to corrupt or unethical behaviour by people involved in sport. The Wood Review of Australia's Sports Integrity Arrangements was extensive, considered submissions from a broad range of stakeholders and involved consultation with the sector. Nearly a quarter of the review's 52 recommendations relate to the establishment and operation of the National Sports Tribunal. Chapter 5 of the comprehensive review report deals with the proposed National Sports Tribunal in detail.
The proposed tribunal would have private arbitration powers and would also be able to engage mediation, conciliation and other dispute-resolution strategies for the prompt and cost-effective resolution of cases brought before it. It would have access to a panel of experts who are experienced in sports law or who have a background that qualifies them through practical experience to determine sporting issues. The proposed tribunal would have three divisions: anti-doping, general and appeals. The anti-doping division is intended to operate an opt-out system, with anti-doping rule-violation matters subject to first instance dispute resolution to be heard by the division, with the exception of the ADRV matters in sport, which operate their own internal tribunal. Similarly, appeals of the first instance divisions would be heard by the proposed tribunal's appeals division. Again, that is with the exception of a small number of professional sports which operate internal appeals tribunals.
Labor is aware that some stakeholders held concerns with certain details of the National Sports Tribunal Bill 2019. These concerns broadly related to issues with the way in which the bill might impact on the rights of individuals involved in matters being heard by the tribunal. Those issues were reflected to a large degree in concerns raised by the Senate Standing Committee for the Scrutiny of Bills. The committee raised concerns in relation to clause 69 of the National Sports Tribunal Bill 2019, which would provide protection and immunity to members of the tribunal, along with barristers, solicitors and witnesses appearing before the tribunal, that would be the same as the protection and the immunity provided to a Justice of the High Court or barristers, solicitors and witnesses before the High Court. The Senate Standing Committee for the Scrutiny of Bills in the Scrutiny Digest 2 2019 reported that:
… if a bill seeks to provide immunity from liability, particularly where such immunity could affect individual rights, this should be soundly justified.
The committee noted:
The explanatory memorandum provides no explanation as to why it is necessary that the Tribunal have the same level of protection or immunity as proceedings in the High Court, nor does it provide any similar examples from other Commonwealth legislation.
In response to those concerns, the government in July provided updated explanatory materials and outlined several instances in which existing Commonwealth legislation gives equivalent protections and immunities to non-judicial bodies as well as the barristers, solicitors and witnesses appearing before them. These examples include section 60 of the Administrative Appeals Tribunal Act 1975, which confers the same respective protections and immunities on members of the AAT; a barrister, a solicitor or another person appearing before the AAT on behalf of a party; and a person summonsed to attend or appear before the AAT as a witness.
Section 167 of the Veterans' Entitlements Act 1986 confers the same respective protections and immunities on a member of the Veterans' Review Board, be they '…a person representing a party at a hearing of the review before the board' or 'a person summonsed to attend' to appear 'before the board as a witness'.
Section 171 of the Copyright Act 1968 confers the same respective protections and immunities on a member of the Copyright Tribunal of Australia or 'a barrister, solicitor, or other person appearing before the tribunal on behalf of a party' and 'a person summonsed to appear before the tribunal as a witness'.
Section 584B of the Fair Work Act 2009 confers the same protections and immunities on persons undertaking the management of complaints against a member of the Fair Work Commission, as well as witnesses and relevant legal representatives.
Stakeholders also raised concerns with the opposition about the protections against civil liability, an issue highlighted by the scrutiny committee in relation to clause 71 of the National Sports Tribunal Bill 2019. That clause provides that:
… no civil liability will arise from any action taken by the CEO, a person assisting the CEO or a person engaged as a consultant or expert witness, in good faith in the performance, or purported performance, of any function of the CEO or in the exercise, or purported exercise, of any power of the CEO. This therefore removes any common law right to bring an action to enforce legal rights (for example, a claim of defamation), unless it can be demonstrated that lack of good faith is shown.
The scrutiny committee noted:
… that in the context of judicial review, bad faith is said to imply a lack of an honest or genuine attempt to undertake the task and that it will involve a personal attack on the honesty of the decision-maker.
The committee comments go on to point out that:
… the courts have taken the position that bad faith can only be shown in very limited circumstances. In this instance, the explanatory memorandum provides no explanation for this provision, merely restating the terms of the provision.
The Australian Athletes' Alliance is particularly concerned about an aspect of the bill, because it would, and I quote from submission they provided to the opposition, 'remove the right of an athlete who suffered losses as a result of sports negligence to carry out anti-doping functions from seeking damages through civil action'. Labor sought further explanation and clarification around these concerns from the minister. The government has stated that the broad civil liability protections afforded by this bill are necessary because:
… in particularly contentious disputes, a person should not be able to take collateral proceedings against the CEO and others, either to delay the Tribunal’s consideration of a dispute, or as an attempt to reopen a dispute that was arbitrated by the Tribunal.
The government has provided examples of similar protections in other Commonwealth legislations, including section 110Q of the Defence Act 1903, which confers similar—