Thursday, 11 June 2020
Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019; In Committee
This amendment relates to items 43 and 44 of this bill in its current form, which seek to lower the threshold for the issuing of a disclosure notice from 'reasonable belief' to 'reasonable suspicion'. That would be a very significant change to the status quo and have a significant impact on athletes' individual rights. Currently, the ASADA CEO can issue a disclosure notice only if they reasonably believe that a person has information that may be relevant to the administration of the National Anti-Doping scheme.
The changes proposed in items 43 and 44 were among concerns raised with the opposition by stakeholders and identified by both the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills. Labor has sought to work with stakeholders to address this issue and initiated a Senate referral of this bill to the Community Affairs Legislation Committee for an inquiry earlier this year to give stakeholders the chance to detail their concerns with this bill. Through that engagement, we decided to move an amendment to the bill that would retain the current threshold of 'reasonable belief'. Key stakeholders, including the Australian Athletes' Alliance, have told us that the amendment would address their most significant concerns with the bill.
The lower threshold proposed by this bill in its current form departs from the Attorney-General's guide to framing offences, which says that the document disclosure provisions should, firstly, impose a threshold of 'reasonable grounds to believe' that a person has custody or control of documents, information or knowledge which would assist the administration of the legislative scheme and, secondly, give a person 14 days to comply with the notice. In contrast, in relation to antidoping matters, this bill proposes, firstly, a threshold of 'reasonable suspicion' that the person has information, documents or things that may be relevant to the administration of the NAD scheme and, secondly, no limit to the period that the ASADA CEO may specify in the notice. Where draft provisions depart from the guide, the Attorney-General's Department website instructs departments to consult with the criminal law division of the AGD before proceeding. The explanatory memorandum of this bill is silent as to whether there has been any consultation with the AGD.
The explanatory memorandum suggests that some jurisdictions allow search warrants to be issued at a threshold of 'suspicion' and that the nature of the disclosure notice is less intrusive because it does not permit entry into premises. However, that analogy is flawed, because the disclosure notices in the context of antidoping investigations can also compel a person to attend for questioning. In other contexts, a person can generally be compelled to attend for questioning only if a court issues a warrant for their arrest or if a person, usually a police officer, arrests them without a warrant. The general requirement for the issuing of a warrant or for arrest without a warrant is that the person issuing the warrant or making the arrest believes on reasonable grounds that the person has committed or is committing an offence. These issues are summarised very clearly in the Bills Digest for this bill. The section of the digest dealing with these issues wraps up by saying:
In light of the broad responsibilities of the ASADA CEO and the width of the phrase 'relevant to the administration of the NAD scheme', there is some doubt whether a change to the threshold for issue of a disclosure notice is necessary. It may be sufficient for the ASADA CEO to fully utilise the current legislation.
This would not have the same flow-on impact in relation to other measures in this bill.
Labor takes the integrity of Australian sports extremely seriously. We understand and support the need for Australian defences against sports integrity threats to be updated as the nature of those threats evolve, and we recognise that the bill, for the most part, seeks to implement recommendations from the Wood Review of Australia's Sports Integrity Arrangements. Labor is committed to continuing to work constructively with all stakeholders to ensure that Australian sport is well protected against these threats. The establishment of Sport Integrity Australia and the National Sports Tribunal, which Labor supported in the parliament, are important steps. Labor believes stronger antidoping measures can be achieved while maintaining the current disclosure notice threshold and would support the bill as amended if the Senate sees fit to support Labor's amendment.
I just indicate that the Australian Greens will be supporting that amendment. Indeed, Greens amendment (5) was an amendment with a similar effect. As I indicated in my speech in the second reading debate, we do have concerns around lowering the threshold. We think that where the standard sits at the moment is appropriate. In light of the Labor Party moving their amendment, we'll be withdrawing our amendment (5).
by leave—I move Greens amendments (1), (3) (4) and (8) on sheet 8966 together:
(1) Clause 2, page 2 (table item 2, column 1), omit "4", substitute "4A".
(3) Schedule 1, item 16, page 5 (lines 17 and 18), omit the item, substitute:
16 Subsection 14(4)
Omit "ADRVP", substitute "CEO".
(4) Schedule 1, item 40, page 9 (lines 5 to 9), omit subsection 78(5), substitute:
(5) A national sporting organisation of Australia, or a person performing work or services for the organisation, is not liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith:
(a) in the performance or purported performance of any function given to the national sporting organisation under the NAD scheme; or
(b) in the exercise or purported exercise of any power given to the national sporting organisation under the NAD scheme.
(8) Schedule 1, page 12 (after line 6), after Part 4, insert:
Part 4A—Athlete ombudsman
48A At the end of section 14
(6) The NAD scheme must establish an Athlete Ombudsman.
(7) The functions of the Athlete Ombudsman must include:
(a) providing independent advice to athletes and support persons, at no cost, in relation to the operation of the NAD scheme and this Act; and
(b) investigating complaints made in relation to matters arising under the NAD scheme; and
(c) providing assistance in disputes arising in relation to matters under the NAD scheme; and
(d) establishing and maintaining a list of legal practitioners who are able to provide pro bono assistance to athletes and support persons in relation to matters arising under the NAD scheme.
(8) All money required to give effect to the Athlete Ombudsman is to be funded out of money appropriated by the Parliament for the purposes of this section.
We also oppose schedule 1 in the following terms:
(2) Schedule 1, item 14, page 5 (lines 13 and 14), to be opposed.
(6) Schedule 1, item 45, page 11 (lines 7 to 9), to be opposed.
(7) Schedule 1, item 47, page 11 (line 12) to page 12 (line 3), to be opposed.
As I indicated in my speech in the second reading debate, we have a number of concerns about other elements of this bill. I won't repeat those concerns. Suffice it to say that we believe that these amendments improve this legislation. We're supportive of the broad thrust of the bill. We're pleased that the disclosure threshold hasn't been lowered, and we believe these other amendments would improve the bill significantly. They, I think, would allow a strengthening of the anti-doping framework without compromising the fundamental rights of athletes, including the right not to self-incriminate.
I have just a couple of quick comments on the Greens amendments, which the government won't be supporting. I will just put a couple of points on the record in the context of that position. With respect to retaining access to the AAT, which is one of the provisions that the Greens are looking for, the government does agree that it is right that there is an appeal process for anti-doping decisions. That is why the government has established the National Sports Tribunal, which has commenced its operations. So there is a process for athletes to make an appeal. They also do retain access to both the Federal Court and also the Commonwealth Ombudsman. So there are processes that can be obtained by athletes.
The Greens also made some comments with respect to cost. There is some provision within the National Sports Tribunal process for the CEO to assist in that circumstance, although employing your own lawyers will obviously come at some cost to anyone involved in those processes. So we won't be supporting the Greens amendment in that context.
There are some discussions in the Greens amendments with respect to access to documentation. The processes proposed within the bill don't actually prevent athletes or parties having access to documents; it's basically about the time and place and availability of those documents. So we're not removing the right to access information and documents as part of the way that the legislation works. For example, information or documents may not physically be in the possession of the CEO of ASADA—or Sport Integrity Australia, as it will become—at the time. So, it's about determining a time when they are able to be produced. We agree that parties should have access to appropriate documentation. This is about organising and determining a time and place for those elements.
On the points that the Greens raised with respect to self-incrimination: given that these are civil proceedings, not criminal proceedings, there is a difference in how the right to self-incrimination does or does not apply. The common law right to self-incrimination does not apply in civil proceedings in the same way that it does in only criminal matters. So, there is a difference there, and proceedings under this act are civil provisions, not criminal.
One of the really important points that I think has been raised by a couple of colleagues in the debate is the capacity to deal with third parties, not necessarily contracted parties. If we consider the circumstance of some of the most infamous events in recent times with respect to doping, some of those parties have not been subject to any aspects of our antidoping process, because the antidoping process does not have reach. It's important that the facilitators of doping can be captured as a part of our antidoping process, and we think that's a really important change in the way our antidoping system operates.
I've made some comments about the importance of the National Sports Tribunal. We think that's an important addition to the overall framework of sport integrity in Australia. It's designed to be cost-effective for athletes and to provide support to athletes as part of that process. I've already mentioned the fact that the CEO of the National Sports Tribunal has an obligation to provide support to athletes, including through the establishment and maintenance of a free legal advice panel. So, there are ways for athletes to get access to support at reasonable cost.
The Greens also, in their amendments, talk about the opportunities for the establishment of a specific athlete ombudsman. The World Anti-Doping Agency, WADA, has formed a working group to examine that concept. The government would like to wait for that working group to report back. It's not something we can completely rule out, but we want to make sure that Australia remains compliant with the World Anti-Doping Agency code, and we will refer the outcomes of the deliberation of the WADA working group to the soon-to-be-formed Sport Integrity Australia Advisory Council on how to proceed. So, that provision that the Greens are seeking through their amendments is not completely shut off. It's something we'll consider as that piece of work continues through the World Anti-Doping Agency process. I would note in that sense, though, that athletes do retain access to the Commonwealth Ombudsman.
So, the government won't be supporting the Greens amendments, but we acknowledge some of the concerns that the Greens have raised as part of their contribution to the debate. And there are some things that we will consider as the antidoping system in this country continues to evolve.
The question before the chair is that amendments (1), (3), (4) and (8) on sheet 8966 be agreed to.
The TEMPORARY CHAIR: The second question before the chair is that items 14, 45, 47 of schedule 1 stand as printed.
Question agreed to.
Bill, as amended, agreed to.
Bill reported with amendments; report adopted.