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2003-2004
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
AUSTRALIAN
SPORTS DRUG AGENCY AMENDMENT BILL
2004
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for
the Arts and Sport,
Senator the Hon. Rod
Kemp)
AUSTRALIAN SPORTS DRUG AGENCY AMENDMENT BILL
2004
OUTLINE
The Australian Sports Drug Agency Amendment Bill 2004 (the Bill)
amends the Australian Sports Drug Agency Act 1990 (the Act) to
enable the Australian Sports Drug Agency (ASDA) to perform particular functions
required as a result of the introduction the World Anti Doping Code (the Code).
The objective of the amendments is:
• to give
relevant functions and powers to ASDA and the Australian Sports Drug Medical
Advisory Committee (ASDMAC) to enable them to adopt and implement the
requirements of the Code by the commencement of the Athens Olympic Games in
August 2004;
• to continue to position
Australia as a world-leader by implementing the Code in a timely manner
especially in view of Australia’s role in advocating for the Code;
and
• to make other consequential changes
required as a result of the introduction of the Code.
The Australian Government has advocated for the international harmonisation
of testing procedures and policies to ensure all athletes are subject to a
comprehensive and fair testing regime. With the adoption of the Code in early
2003, significant progress was made towards realising this
vision.
Australia has been a key contributor to the development of the
Code and its supporting documentation including international standards of
best-practice. Australia was amongst the first governments to support the Code
by signing the Copenhagen Declaration on Anti-Doping in Sport. Over 90
governments support the Code through the Copenhagen Declaration.
The Code
provides for national anti-doping organisations (NADOs) to adopt and implement
the requirements of the Code by the commencement of the Athens Olympic Games in
August 2004. Failure to meet the requirements of the Code will undermine
Australia's efforts to achieve effective anti-doping standards.
The
proposed amendments have been developed on the basis of careful analysis of the
Code's requirements and Australia's current anti-doping arrangements. This is
consistent with the principle that national governments should support the
adoption of the Code in a way that takes into account existing domestic
arrangements. The Bill provides the framework for the Code to operate in
Australia in the context of Australia's existing procedures, structures and
legal system. In addition, this Bill provides for some minor technical
amendments to the Act.
The Bill is not expected to have any financial impact on Commonwealth
expenditure or revenue.
ABBREVIATIONS
The following abbreviations are used in this explanatory
memorandum:
Act: Australian Sports Drug Agency Act
1990
ASDA: Australian Sports Drug Agency
ASDMAC Australian Sports Drug Medical Advisory Committee
Code: World Anti Doping Code
NADO: National Anti-Doping
Organisation
Register: Register of Notifiable Events
WADA: World Anti Doping Agency
NOTES ON CLAUSES
Clause 1 provides that the Bill, when enacted, may be cited as the
Australian Sports Drug Agency Amendment Act 2004.
Clause 2 sets out when each of the provisions in the Bill will commence. It
provides that each provision in column 1 of the table commences or is taken to
have commenced in accordance with column 2 of the table. Therefore, clauses 1
to 3 commence on the day on which the Act receives the Royal Assent. Clauses 1
to 3 are the introductory provisions including the short title of the Bill,
commencement provisions and the schedule of application provisions. Schedule 1
to the Bill will commence on a single day to be fixed by Proclamation. However,
if any provision(s) do not commence within the period of 6 months beginning on
the day on which the Act receives Royal Assent, they commence on the first day
after the end of that period.
Clause 3 is a standard provision which declares that the Schedules to the Act have the effect indicated. There is one Schedule to the Bill. Part 1 of Schedule 1 provides for amendments to the Australian Sports Drug Agency Act 1990 and Part 2 of Schedule 1 includes transitional provisions which clarify the status of the amendments in relation to prior events and matters.
Item 1 – Subsection 2(1)
This item amends the
definition of “analytical investigative body”. The current
definition provides that such a body is one recognised by an International
Sporting Federation as a body qualified to investigate samples of human
biological tissue, fluid or breath. The proposed amendment is consequential to
the Code which provides that sporting organisations may establish an analytical
investigative body.
Therefore, it is proposed to omit the words "
International Sporting Federation" from the definition and substitute with the
words "a sporting administration body". The term " sporting administration
body" is also defined in the current Act and it is proposed to amend that
definition also.
Item 2 – Subsection 2(1)
This item
inserts the definition of “International Standard”. In support of
the Code, WADA has developed, and will continue to develop, international
standards for the harmonisation of technical and operational aspects required to
conduct certain anti-doping activities. Examples include a standard for
handling samples and a standard for providing therapeutic approvals. The Code
requires compliance with the relevant standards. As a consequence, it will be
necessary for ASDA and ASDMAC to be able to comply with these relevant standards
when carrying out their functions with reference to the Code.
Item 3
– Subsection 2(1)
This item inserts a definition for
“NADO". As the entities designated by each country as possessing the
primary authority and responsibility in relation to anti-doping, the Code
requires NADOs to carry out certain functions.
The proposed definition
states that NADO means a National Anti-Doping Organization as defined in the
Code. The names of the organisations designated for each country as NADOs
under the Code may change and the Code in this regard will also be subject to
amendment from time to time in line with developments in sports anti-doping.
Therefore, it is important that the definition is by reference rather than
setting the Code out in the Act. Being required to amend the Act each time the
Code was changed would not provide ASDA or ASDMAC with the ability to act and
respond quickly to such changes. If they cannot act so then they would find
themselves in the position where they were not Code compliant.
The
spelling "Organization" refers to the spelling used in the Code.
ASDA and
the Australian Sports Commission are the Australian NADOs presently designated
by the Australian Government.
Item 4 – Subsection 2(1)
This item relocates the definition of "negative test result" and amends it by
restructuring it. The current definition is at subsection 18(2AA) and provides
that a negative test result, in relation to a competitor, is a
finding made by an accredited laboratory or using analytical techniques and
equipment specified in a drug testing scheme by means of testing a sample
provided by a competitor, that is not a positive test result (as defined in the
Act).
The definition is being relocated because it is now applicable to
the whole Act and not just subsection 18(2AA). It is proposed that the
definition be relocated to the general interpretation part of the Act at section
2.
Item 5 – Subsection 2(1)
This item amends and
relocates the definition of "positive test result". The current definition is
at section 14.
Therefore, a new definition of "positive test result"
will be inserted at subsection 2(1). The proposed new definition also will be
similar to the current definition at section 14 of the Act but will be
restructured slightly for additional clarity.
With advances in drugs,
doping methods and drug testing, and to be more consistent with the Code, it is
also necessary to amend the definition to include as a positive test result the
concept of substances (including metabolites and markers) that may reveal the
use of a drug or doping method rather than a test revealing just the drug or the
doping method. This is consistent with the requirements under the Code in
relation to identifying athletes who have used banned substances or doping
methods.
Item 6 – Subsection 2(1)
This item inserts a
definition for “scheduled doping method". The current Act at subsection
2(1) provides a definition for "scheduled drug or scheduled doping method" but
not for “scheduled doping method" alone. In order to make the Act clear
as to the meaning of the terminology, and because under other proposed
amendments each term will sometimes be used alone in some parts of the Act, it
is necessary to define each term.
Therefore, it is proposed that
subsection 2(1) will contain a definition of “scheduled doping method" to
mean a doping method included in a schedule set out in a drug testing
scheme.
Item 7 – Subsection 2(1)
This item inserts a
definition for “scheduled drug ". The current Act at subsection 2(1)
provides a definition for "scheduled drug or scheduled doping method" but not
for “scheduled drug" alone. In order to make the Act clear as to the
meaning of the terminology, and because under proposed amendments each term will
sometimes be used alone in some parts of the Act, it is necessary to define each
term.
Therefore, it is proposed that subsection 2(1) will contain a
definition of “scheduled drug" to mean a drug included in a schedule set
out in a drug testing scheme.
Item 8 – Subsection 2(1)
(definition of scheduled drug or scheduled doping method)
This item
repeals the definition of “scheduled drug or scheduled doping method" and
substitutes a new definition. This item is a consequential amendment due to the
proposed new definitions for scheduled drug and scheduled doping method.
Therefore, it is proposed that subsection 2(1) will contain a new
definition of “scheduled drug or scheduled doping method" to mean a
scheduled drug or a scheduled doping method.
This item inserts additional bodies to the definition of "sporting
administration body", namely paragraph (aa) WADA and paragraph (ab) a NADO.
These additions are needed because the Code requires that WADA and NADOs be
provided with certain information in relation to drug testing and other anti
doping measures.
The current definition provides that sporting
administration body means the International Olympic Committee, a foreign
sporting organisation, a national sporting organisation, a sporting organisation
or a tribunal, committee or other investigative body associated with the
preceding organisations or the Australian Sports Commission.
Accordingly,
by adding NADO and WADA to the definition of "sporting administration body",
those bodies will be included in the bodies to whom ASDA is or is proposed to be
able to provide or is required to give such information.
This item is a consequential provisions and inserts reference to new
paragraphs (aa) and (ab) which are proposed to be inserted to the
Act.
Current paragraph (e) includes in the definition of "sporting
administration body" any tribunal, committee or other investigative body that is
associated with a body referred to in paragraphs (a) to (d) of the definition.
Because of the new proposed additions of WADA and NADOs to the bodies to be
covered by the definition of "sporting administration body", it is therefore
necessary to include reference to any tribunal, committee or other investigative
body that is associated with WADA or NADOs.
Item 11– Subsection
(2)(1)
This item inserts a reference at subsection 2(1) to the
definition of "sports drug matter" given at proposed subsection 4A(2). This
item is simply a mechanism to make reading of the Act more simple by directing
the reader to where the definition can be found (see items 11, 12 and 16 below
in relation to "sports drug matter" and "tampers")
Item 12 –
Subsection (2)(1)
This item inserts a reference at subsection 2(1) to
the definition of "tampers" given at proposed subsection 4A(1). This item is
simply a mechanism to make reading of the Act more simple by directing the
reader to where the definition can be found (see item 16 below in relation to "
tampers ").
Item 13 - Subsection (2)(1) (definition of therapeutic
approval body)
This item deletes reference to an International
Sporting Federation from the definition of "therapeutic approval body" and
substitutes it with the words "sporting administration body". This substitution
is needed because under the Code, sporting organisations may establish a
therapeutic use exemption committee.
Accordingly, by making this
substitution, those bodies included in the definition of "sporting
administration body" will be included in the bodies to whom athletes can obtain
therapeutic approvals.
The note explains that WADA was established in
February 1999 following a resolution by the World Conference on Doping in Sport
convened by the International Olympic Committee in Lausanne.
This item inserts a definition of WADA, the World Anti-Doping Agency.
WADA is the author of the Code and the agency ultimately responsible for its
implementation.
Item 15 – Subsection 2(1)
This item
proposes the insertion of a definition of the World Anti-Doping Code. The note
to the definition sets out the Internet address at which a copy of the Code was
available in 2004.
Item 16 – After section 4
This
item inserts new section 4A. It is proposed to amend the Act in line with the
Code to provide further new subjects upon which a drug testing scheme requires
ASDA to make an entry on the Register of Notifiable Events. Those amendments
are required because the Code now sets out a number of circumstances and conduct
which will constitute violations of anti-doping rules by competitors. One of
those circumstances is tampering or attempting to tamper with the doping control
process.
Tampering is not something that is restricted to drug testing
schemes under part 3 of the Act , competitors, samples or test results
generally, or competitors and their own samples or test results. Tampering could
occur, for example, when ASDA carries out drug testing services under contract
(see subsection 9(1)(b)), when ASDA carries out safety checking services (see
subsection 9(1)(ea)), when ASDA carries out testing for foreign sporting
organisations (see Part 3A) or when ASDA asks a sporting administration body to
arrange for testing (see Part 3B).
Therefore, tampering is not just the
traditional concept of a competitor interfering with their own sample in some
way so that a test result is altered. Tampering may also extend to interfering
with information or even with ASDA or ASDMAC's decision making procedures in
relation to the doping control process.
It is also possible that
3rd parties such as coaches or other sport support personnel, other
athletes who are not competitors as defined at section 2A or even other persons
unconnected with sport could be involved with tampering. It is also possible
that competitor A could tamper with competitor B's samples, test results,
information etc to competitor B's benefit or detriment. In addition, tampering
may not just apply to samples or test results but to the whole process for
requesting, collecting and handling samples, to the testing of the samples, the
results of the tests or the handling of those results and to any information
held in relation to those matters.
Proposed subsection 4A(1) therefore
sets out which conduct means that a person tampers with a sports drug matter.
In this regard, a person tampers with a sports drug matter if the person causes,
arranges or participates in any of the following conduct:
(a) altering, or
attempting to alter, for an improper purpose;
(b) bringing, or attempting to
bring, improper influence to bear;
(c) interfering, or attempting to
interfere, improperly to;
(i) alter results; or
(ii) prevent normal
procedures from occurring;
in relation to that sports drug
matter.
Proposed subsection 4A(2) will also define the concept of " a
sports drug matter" so as to encompass all the types of matters that have the
potential to be tampered. In this regard, a sports drug matter is any of the
following matters:
(a) the requesting , collection or handling of samples, or
information, under any of the following:
(i) a drug testing
scheme;
(ii) an arrangement covered by subsection 17ZC(1), being the
subsection that deals with all the arrangements ASDA may ask a sporting
administration body to organise in relation to testing on ASDA's
behalf;
(iii) a contract entered into by ASDA for the provision of drug
testing services or safety checking services;
(iv) Part 3A (including
procedures described in section 17Z) being the part that deals with when ASDA is
asked by a foreign sporting body to carry out certain matters in relation to
testing;
(a) the testing of samples under any of the following, the results
of those tests or the handling of those tests or the handling of the results of
those tests:
(i) a drug testing scheme;
(ii) an arrangement covered by
subsection 17ZC(1), being the subsection that deals with all the arrangements
ASDA may ask a sporting administration body to organise in relation to testing
on ASDA's behalf;
(iii) a contract entered into by ASDA for the provision of
drug testing services or safety checking services;
(iv) Part 3A (including
procedures described in section 17Z) ) being the part that deals with when ASDA
is asked by a foreign sporting body to carry out certain matters in relation to
testing;
(a) the requesting by ASDA of an arrangement covered by subsection
17ZC(1), being the subsection that deals with all the arrangements ASDA may ask
a sporting administration body to organise in relation to testing on ASDA's
behalf;
(b) the handling under this Act of information relating to a matter
covered by a drug testing scheme (not being information covered by paragraph
(e));
(c) the handling under this Act of information relating to a matter
covered by:
(i) an arrangement covered by subsection 17ZC(1), being the
subsection that deals with all the arrangements ASDA may ask a sporting
administration body to organise in relation to testing on ASDA's behalf;
or
(ii) a drug testing scheme as a result of such an arrangement;
(a) the
handling of information under section 67B, being one of the sections that deal
with notification of information about tampering to relevant sporting
administration bodies.
Because someone can tamper with information in
relation to the drug control process, proposed subsection 4A defines "handling"
in relation to information. It is proposed that "handling" in relation to
information include disclosing, communicating, notifying and making publicly
available.
Item 17– Paragraph 9(2)(a)
This item
amends paragraph 9(2)(a) by inserting the words "or doping method" after the
word "drugs".
The majority of references throughout the Act are in
relation to both drugs and doping method. Subsection 2(2) however does provide
that a reference to the use of drugs includes a reference to the use of doping
methods. Paragraph 9(2)(a) should also apply to drugs and doping methods and
there should be no implication that that is not the case. Therefore, to put the
matter beyond doubt, the amendment is proposed.
Item 18 – After
paragraph 11(2)(c)
This item amends subsection 11(2) of the Act by
inserting a new subject on which ASDA is authorised to make requests of
competitors. Paragraph 11(2)(c) of the Act currently provides that a drug
testing scheme is a scheme that authorises ASDA to make requests of competitors
in relation to providing samples for the purpose of detecting whether or not the
competitor has used a scheduled drug or doping method. This authorisation is by
way of the regulations which may formulate one or more drug testing schemes.
However, the Code now sets out a number of circumstances and conduct
which will constitute violations of anti-doping rules by competitors. One of
those circumstances is the failure of a competitor to provide information about
their whereabouts so that the relevant organisation can locate the competitor to
conduct drug testing. As the relevant organisation, ASDA now needs to be
authorised to make requests of competitors in relation to their whereabouts.
Therefore, it is proposed to amend the Act to insert new paragraph
11(2)(ca) which will provide that a drug testing scheme authorises ASDA to
request a competitor to keep ASDA informed of where the competitor can be found.
The drug testing scheme will then set out the detail of what information a
competitor needs to provide to ASDA and the procedures for the collection of the
information. It is anticipated that the type of information a competitor would
need to provide would include residential addresses, training times and venues
and competition times and venues. Full location details would be required by
ASDA so that unannounced testing can occur. It is intended that the procedures
to be adopted in the drug testing scheme would be in line with best practice.
Item 19 – After paragraph 11(2)(f)
This item amends
section 11(2) of the Act by inserting new subjects upon which a drug testing
scheme requires ASDA to make an entry on the Register of Notifiable Events.
Paragraphs 11(2)(e) and (f) of the Act currently provide that a drug testing
scheme among other things is one that requires ASDA to enter the name of a
competitor on that Register if that competitor fails without reasonable cause to
comply with a request to provide a sample and where a competitor has returned a
positive test.
However, the Code now sets out a number of circumstances
and conduct which will constitute violations of anti-doping rules by
competitors. One of those circumstances is the failure of a competitor to
provide information about their whereabouts so that ASDA can locate the
competitor to conduct drug testing.
Another of those circumstance is the
where a competitor fails to comply with a request from ASDA to provide
information about their whereabouts and that resulted in ASDA being unable to
make a request for a sample from that competitor.
A further circumstance
is the deliberate evasion by a competitor of an attempt by ASDA to make a
request of a competitor to provide a sample for the purpose of detecting whether
or not the competitor has used a scheduled drug or doping method.
Another of those circumstances is tampering by a competitor. Because
the proposed definition of "tampers" is a broad one (to cover whether tampering
is done under a drug testing scheme or not or whether or not the person
tampering is a competitor) the instances of tampering to be registered under
part 3 must be restricted to those instances under a drug testing
scheme.
Therefore, it is proposed to amend the Act by inserting new
paragraphs 11(2)(fa), 11(2)(fb) and 11(2)(fc) which will provide that a drug
testing scheme must require ASDA to enter the name of a competitor on that
Register in circumstances specified in the drug testing scheme but including in
the following circumstances:
i) the competitor deliberately evaded an attempt
by ASDA to request the competitor to provide a sample;
ii) the competitor
failed to comply with a request from ASDA to provide information about their
whereabouts; and
iii) the competitor failed to comply with a request from
ASDA to provide information about their whereabouts and but for that failure
ASDA would have made a request for a sample from that competitor.
It is
also proposed to insert new paragraphs 11(2)(fd) to provide that a drug testing
scheme requires ASDA to enter the name of a competitor on the Register if the
competitor tampered with a sports drug matter covered by subparagraph
4A(2)(a)(i) or (b)(i) or paragraph 4A(2)(d) (see the provisions at item 16 in
regard to these subparagraphs and paragraphs).
Item 20 –
Paragraph 11(2)(g)
This item amends paragraph 11(2)(g) by omitting
the references to paragraphs (e) and (f) and substituting with references to
paragraphs (e), (f), (fa), (fb), (fc) or (fd). This amendment is a
consequential change due to the amendment of the Act by the insertion of new
paragraphs (fa), (fb), (fc) and (fd) which take account of the new events which
must be entered on the Register (as outlined at item 19).
Item 21
– At the end of paragraph 11(2)(h)
This item amends paragraph
11(2)(h) by adding subparagraph (iii). Paragraph 11(2)(h) outlines to which
organisations under a drug testing scheme ASDA must give written notice of the
making of entries on the Register. Therefore, this current paragraph is only
concerned about giving notice in relation to competitors who have had their
names placed on the Register.
However, tampering can affect competitors
who have not acted improperly. Therefore, it will now be necessary to require
ASDA under a drug testing scheme to advise certain organisations about
competitors whose interests may have been affected by tampering. For example,
if competitor A has tampered with the sample of competitor B such that
competitor B returns a negative result when the untampered sample would have
been positive, it would be important for the relevant organisations to be
informed.
This item removes note 2 at the foot of subsection 11(2). The note is no
longer required due to the relocation of the definition of "positive test
result" to the general interpretation part at section 2 of the Act.
Item 23 – After subsection 11(3)
This item inserts
proposed additional subsection 11(3A). Proposed new subsections 11(2)(fa), (fb)
and (fc) require ASDA to make entries on the Register in specified circumstances
in relation to failing to comply with a request to provide whereabouts
information and deliberately evading an attempt by ASDA to make a request to
provide a sample. In accordance with other provisions in the Act, those
sections must be able to also specify circumstances that differ according to the
fields of sporting activities in which competitors compete.
Item 24
– Subsection 11(4)
This item amends subsection 11(4) which
currently provides that subsection 11(3) of the Act is not, by implication,
limited by subsection 33(3A) of the Acts Interpretation Act 1901. The
proposed amendment will add a reference to new subsection 11(3A) so that both
subsection 11(3) and new subsection 11(3A) will not be so limited.
Item 25– Subsection 11(5)
This item amends section
11 of the Act by repealing and substituting subsection (5). Current subsection
(5) provides that the list of scheduled drugs and doping methods referred to in
paragraph 2(b) may apply, adopt or incorporate matters contained in instruments
or writing made by sporting administration bodies.
Prior to the
introduction of the Code, individual sports adopted separate policies in
relation to anti-doping including different treatment of banned substances and
methods. This subsection existed so that ASDA could take account of those
differences between sports.
However, the Code now requires compliance
with the Code itself and any international standards developed by WADA.
Therefore, drug testing schemes generally, and not just the scheduled list, need
to be able to make provision for the Code and the international standards of
WADA.
Because there may be some sports that will continue to operate
outside the scope of WADA and the Code, or have requirements in addition to the
Code, and because WADA may make other instruments in relation to anti-doping
from time to time, a scheme will still need to be able to make provision for any
matters contained in instruments of sporting administration
bodies.
However, because the Code, the international standards and sports
anti-doping policies will be amended from time to time, it is important that
those instruments are incorporated by reference rather than setting the Code or
the instruments out in the Act or regulations. Being required to amend the Act
each time the Code or instruments are changed or new instruments added would not
provide ASDA or ASDMAC with the ability to act and respond quickly to such
changes or the requirements of new instruments. If they cannot act so then they
would find themselves in the position where they were not Code
compliant.
It is therefore also proposed to amend subsections 11(5) to
provide that drug testing schemes generally may make provision for matters by
applying, adopting or incorporating, with or without modification, any matter
contained in the Code, an International Standard or any other instrument made by
a sporting administration body, whether as amended or in force from time to
time.
Item 26 – paragraph 12(c)
This item repeals
paragraph 12(c) and substitutes it with new paragraph 12(c). Paragraph 12(c)
currently provides the instances of when a competitor has failed to comply with
a request by ASDA to provide a sample. Subparagraph (ii) sets out the instance
of a competitor, after providing a sample, doing something to the sample that a
drug testing scheme requires the competitor not to do.
Because it is
proposed to amend the Act in relation to tampering and to have a separate
notifiable and registerable matter in that regard, it is no longer necessary to
have the provision at subparagraph (ii). Therefore, it is proposed that new
paragraph 12(c) will only provide for the instance of a competitor failing to do
something to a sample that a drug testing scheme requires the competitor to
do.
The note to this item provides that the heading to section 12 is
amended by adding at the end the words "to provide a sample".
Item 27
– Paragraph 13(1)(b)
This item repeals paragraph 13(1)(b) and
substitutes it with new paragraphs 13(1)(b) and (c). Current subsection 13(1)
provides examples of circumstances that may be specified in regulations for the
purposed of paragraph 11(2)(f) ie. when ASDA is required to enter the name of a
competitor on the Register in relation to a positive test result. Current
paragraph (b) provides the example of when a competitor holds a therapeutic
approval for the drug in relation to which he or she has returned positive test
result but the relevant conditions applicable to that use were not complied with
by the competitor.
For clarity, the proposed amendment adds a further
example and amends the wording of current paragraph (b). Therefore, it is
proposed that new paragraph 13(1)(b) insert the following examples:
(b) a
competitor has returned a positive test result in relation to a sample and the
competitor did not have an approval for the use of the drug concerned for
therapeutic purposes;
(c) a competitor has returned a positive test result in
relation to a sample and the competitor had an approval for the use of the drug
concerned for therapeutic purposes but did not comply with the conditions for
that approval.
This item removes the note at the foot of subsection 13(1). The note is
now unnecessary due to the relocation of the definition of "positive test
result" to the general interpretation part at section 2 of the Act.
Item 29– After subsection 13(1)
This item amends
section 13 by inserting new subsection 13(1A). Current subsection 13(1)
provides examples of circumstances that may be specified in regulations for the
purposed of paragraph 11(2)(f) ie. when ASDA is required to enter the name of a
competitor on the Register in relation to a positive test result. It is
proposed that new subsection 13(1A) set out which therapeutic use approvals will
be counted in relation to specifying a circumstance as mentioned in subsection
13(1).
Under the current Act and Regulations, ASDMAC is the Australian
government body which may approve the use of scheduled drugs by competitors for
therapeutic purposes. It is not mandatory for competitors to use ASDMAC for
this purpose and some sporting organisations have their own bodies which carry
out the same function. Under the current Act there is no formal internal
review, or appeal to the Administrative Appeals Tribunal, in relation to any
decisions ASDMAC may make. Judicial review of the administrative decisions
taken under the Act or regulations is available under the Administrative
Decisions (Judicial Review) Act 1977.
The Code now introduces a new
series of review and appeal processes for competitors in relation to therapeutic
approvals. For example, any primary decision in relation to a therapeutic
approval (such as a decision by ASDMAC) may be reversed by WADA if the primary
decision maker failed to adhere to the International Standard for Therapeutic
Use Exemptions . If WADA did reverse the decision of a primary decision maker,
international competitors, the primary decision maker or the relevant sport may
then appeal to the Court of Arbitration for Sport.
Whether a therapeutic
approval is in place is a significant matter because it can mean that a positive
test result will not be recorded as such. Therefore, because of the
introduction by the Code of a number of new layers to therapeutic approvals, it
will be important for a drug testing scheme to allow ASDA to take into account
these new arrangements in making the decisions in relation to positive test
results.
Therefore, proposed new subsection 13(1A) will set out that a
drug testing scheme may provide that an approval for the use of a drug for
therapeutic purposes only counts if it was granted by ASDMAC, a therapeutic
approval body or as a result of a review or appeal (or similar process) that
relates directly or indirectly to a decision of ASDMAC or therapeutic approval
body. As set out above, the proposed amended definition of therapeutic approval
body includes WADA.
This item repeals section 14 because the definition of "positive test
result" has been relocated to the general interpretation part of the Act at
section 2.
Item 31 – Subsection 15(2)
This item
amends subsection 15(2) of the Act so as to include the proposal to make a
failure to provide whereabouts information an event to be placed on the
Register. Section 15 sets out a statement of competitor's right that are to be
complied with by a drug testing scheme. Subsection 15(2) provides the right to
be notified of the possible consequences of a failure to comply with a request
by ASDA to provide a sample. It is proposed that the same right be given to
competitors in relation to the consequences of failing to keep ASDA informed of
where the competitor can be found.
Item 32 – Subsection
16(3)
This item amends subsection 16(3) by omitting all the words
from and including "the Agency must" and substituting them. This is a
consequential provision.
Section 16 relates to the actions required of
ASDA following a decision or order on review of a decision by the Administrative
Appeals Tribunal. The words to be omitted require ASDA to give written notice
of the AAT's decision or order to each person to whom, and each organisation or
body to which, notice of the making of the entry on the Register was
given.
As there are a number of proposed amendments to the Act in
relation to disclosures, and new disclosures allowed, it is necessary to amend
subsection 16(3). Therefore, the words omitted will be replaced and a new
paragraph inserted to take account of proposed new section 17BB disclosures.
The proposed paragraph in relation to section 17BB disclosures will take account
of the fact that public release might include publishing on ASDA's website or in
its annual report.
Therefore it is proposed that the omitted words be
substituted as follows:
the Agency must, as soon as practicable, give notice
of that fact (the review decision) as follows:
(a) if ASDA
notified a person, organisation or body of the making of the entry - ASDA must
give written notice of the review decision to the person, organisation or
body;
(b) if ASDA made information relating to the entry publicly available
under section 17BB - ASDA must give public notice of the review decision by the
same means as was used to make the information publicly
available.
Item33 – Section 17
This item is a
consequential amendment of section 17. This section currently deals with how a
drug testing scheme may provide for making requests of competitors to give
samples, when a competitor appears likely to fail to comply with such requests
and when a competitor claims to be retired in regard to those matters.
Because it is proposed to amend the Act in relation to competitors
providing whereabouts information (see items 18 and 19 above), it is necessary
to also provide in the Act how a drug testing scheme may provide for making
requests of competitors to give that information, when a competitor appears
likely to fail to comply with such requests and when a competitor claims to be
retired in regard to those matters. Therefore, this amendment adds reference to
paragraph 11(2)(ca) following every reference to paragraph 11(2)(c).
The
note to this item provides that the heading to section 17 is amended by
inserting the words ", or keep informed of location" after
"sample".
Item 34 – Paragraphs 17B(1)(c) and (d)
This item repeals paragraphs 17B(1)(c) and (d). Subsection 17(1)
provides that a drug testing scheme may require or permit ASDA or ASDMAC to
disclose to specified sporting administration bodies certain listed information
arising out of the entry of a competitor's name in the Register. Paragraphs
17B(1)(c) and (d) currently specify that information concerning the following
may be disclosed:
(a) any provision of a sample by a person who was not a
competitor and represented, by pretending to be the competitor, that the sample
was provided by the competitor; or
(b) any other interference with the
provision, collection or testing of the sample.
Because it is proposed to
amend the Act in relation to tampering and to have a separate notifiable and
registerable matter in that regard, it is no longer necessary to have the
provisions at paragraphs 17B(1)(c) and (d).
Item 35 – At the
end of paragraph 17B(1)(e)
This item amends paragraph 17B(1)(e) by
adding the words "of the sample" to the end of the paragraph for clarification
in relation to what is tested.
Item 36 – At the end of
subsection 17B(1)
This item amends paragraph 17B(1) by adding the new
types of matters that can be disclosed to specified sporting administration
bodies. Currently, subsection 17B(1) provides that a drug testing scheme may
require or permit ASDA or ASDMAC to disclose to specified sporting
administration bodies certain listed information arising out of the entry of a
competitor's name in the Register.
This item adds paragraphs 17B(1)(f),
(g), (h) and (i). It is proposed that paragraph 17B(1)(f) allow disclosure
where a competitor has evaded an attempt by ASDA to request a competitor to
provide a sample. It is proposed that paragraph 17B(1)(g) allow disclosure where
a competitor has failed to provide ASDA with whereabouts information.
It
is proposed that paragraph 17B(1)(h) allow disclosure where, because of a
competitor's failure to provide whereabouts information, ASDA or the sporting
administration body is unable to make a request of that competitor to provide a
sample. It is proposed that paragraph 17B(1)(i) allow disclosure where a
competitor has tampered with a sports drug matter covered by subparagraph
4A(2)(a)(i) or (ii) or (b)(i) or (ii), or paragraph 4A(2)(c), (d) or (e) (see
the provisions at item 16 in regard to these subparagraphs and
paragraphs).
Item 37 – Subsection 17B(2)
This item
repeals subsection 17B(2) and substitutes it with a new subsections 17B(2) and
(2A). Current subsection 17B(2) sets out when a drug testing scheme may permit
ASDA to disclose to one or more specified sporting administration bodies
information relating to positive test results or a failure by a competitor to
comply with a request to provide a sample. These disclosures are in addition to
the disclosures required under paragraph 11(2)(h). Currently disclosures under
subsection 17B(2) are only permitted after the competitor's name is entered on
the Register and the information could not identify the competitor.
This
amendment is required as a result of the Code which now sets out a number of
circumstances and conduct which will constitute violations of anti-doping rules
by competitors. As explained above, some of those circumstances and conduct are
either new or revised concepts in relation to the Act. It is therefore
necessary to amend this subsection to take account of those new circumstances
and conduct which may also require disclosure to certain sporting administration
bodies.
In addition, the Code now requires disclosure to certain sporting
administration bodies at an earlier point than currently provided in the Act.
Currently under the Act, ASDA can generally only disclose after an entry has
been made on the Register. For positive test results, an entry is only made on
the Register when the full procedure set out in the drug testing scheme has been
completed ie. basically this means that both A and B sample processes have been
completed and the competitor has had the opportunity of making a written
submission to ASDA. However, under the Code, disclosure will be required
immediately upon the A sample revealing a positive test result and ASDA being
satisfied there is no therapeutic approval and that the relevant international
standard for testing has been complied with.
Such early notification is
especially important if the relevant sport is of the view that a provisional
sanction should be imposed. For example, if a competitor returns a positive A
sample on the eve of an important international competition, there may be
compelling reasons for the relevant sport to impose immediate provisional
sanctions to ensure the rights of other athletes are protected. The Code
permits sporting bodies to impose anti-doping rules to take account of and set
out a process for provisional sanctions.
It is proposed that the bodies
to whom ASDA can disclose under new subsection 17B(2) will be limited to
sporting administration bodies specified in the regulations.
To ensure
competitors' rights are considered as part of this disclosure process it is
intended to make the disclosure subject to ASDA having taken reasonable steps to
satisfy itself that the information will not be used or disclosed by the
receiving body in a way that would be unfairly prejudicial to the interests of
the competitor.
As a consequence to this proposal it also will be necessary
to make provision for the circumstance where ASDA finally makes a decision not
to make an entry on the Register, for example, where an A sample is positive but
a B sample is negative. In such a circumstance, ASDA would be required to
notify the sporting administration bodies to which it has disclosed information,
of that decision as soon as practicable.
Therefore, it is proposed to
substitute new subsection 17B(2) to provide that a drug testing scheme may
permit ASDA to disclose information to one or more sporting administration
bodies specified in the regulations if:
(a) the information relates to any of
the following circumstances that the Agency knows or has reason to believe has
occurred:
(i) a competitor failed to comply with a request by ASDA to provide
a sample under paragraph 11(2)(c) in relation to a drug testing scheme and under
paragraph 17ZC(1)(a) in relation to testing by other sporting administration
bodies;
(ii) a competitor returned a positive test result in relation to a
sample provided pursuant to a request of the kind mentioned in (i);
(iii) a
competitor deliberately evaded an attempt by ASDA to make a request to provide a
sample under paragraph 11(2)(c) in relation to a drug testing scheme or under
paragraph 17ZC(1)(a) in relation to testing by other sporting administration
bodies;
(iv) a competitor failed to provide information to ASDA or a sporting
administration body about where the competitor can be found;
(v) because of a
failure referred to in point (iv) by a competitor, ASDA or a sporting
administration body was unable to make a request of the kind mentioned in point
(i) to the competitor;
(vi) a competitor tampered with a sports drug matter
covered by subparagraph 4A(2)(a)(i) or (ii) or (b)(i) or (ii), or paragraph
4A(2)(c), (d) or (e) (see the proposals at item 16 in regard to these
subparagraphs and paragraphs);
It is also proposed that new subsection
17B(2A) will provide that if ASDA has disclosed information to a sporting
administration body in relation to new subsection (2) and ASDA later decides
that an entry should not be made on the Register, then ASDA must, as soon as
practicable, notify the sporting administration body of that
decision.
The note to this item provides that the heading to section 12
is amended by adding at the end the words "to provide a sample".
The note
to this item provides that the heading to section 17B is replaced by the heading
"Disclosure to sporting administration bodies of information relation to
circumstances that have led or may lead to an entry made in the
Register.".
Item 38 – Subsection 17B(5)
This item
repeals subsection 17B(5) and substitutes it with a new subsection 17B(5).
Current subsection 17B(5) provides that section 17B is not limited by paragraph
11(2)(h) in relation to disclosures ASDA is required to make under drug testing
schemes. Neither is paragraph 11(2)(h) limited by section 17B.
This is a
consequential amendment due to the proposed amendments to section 17B and other
amendments to the Act in relation to disclosure. Those other disclosures are
not required to be limited in the way section 17B disclosures are limited.
Therefore, new subsection 17B(5) will provide that nothing in section 17B
limits, or is limited by, any other provision of this Act or a drug testing
scheme under which ASDA is required or permitted to disclose
information.
Item 39 – After section 17B
This item
inserts proposed additional sections 17BA and 17BB in relation to disclosures to
sporting administration bodies. New section 17BA combines the concepts in the
Code of a clearinghouse of competitor information in relation to testing or
attempted testing under drug testing programs, competitor whereabouts
information and therapeutic approvals and sharing information about therapeutic
approvals. WADA will be the repository of clearing house information.
This proposed section underpins one of the Code's fundamental principles
- to ensure harmonised, coordinated and effective anti-doping programs at the
international and national levels with regard to detection, deterrence and
prevention of doping. It will prevent unnecessary testing of competitors and
provide ready access to whether a competitor has a therapeutic approval.
Therefore, proposed section 17BA will apply to the following
information:
(a) relating to the testing, or attempted testing, of
competitors under drug testing schemes; and
(b) relating to decisions of
ASDMAC to approve, or refuse to approve, the use of scheduled drugs for
therapeutic purposes; and
(c) provided under a drug testing schemes relating
to where competitors may be found.
Subject to subsection (3), proposed
subsection (2) will provide that a drug testing scheme may permit ASDA or ASDMAC
to disclose the above types of information to one or more sporting
administration bodies for the purposes of one or more drug testing programs.
The regulations may therefore restrict the bodies to which this information may
be disclosed.
Subsection (3) will provide that for any disclosure ASDA or
ASDMAC must have taken reasonable steps to satisfy themselves that the
information disclosed will not be used or disclosed for other purposes. This
requirement is in accordance with the Privacy Act 1988 in any event but
is being proposed to be included in the Act as a specific warning of the need to
comply with that requirement when disclosing information under this section. It
is an important reminder given it is intended under the Code, as reflected in
this amendment, that the information be disclosed to bodies such as WADA and
sporting organisations in other countries.
In addition to the above
limits, proposed subsection (4) will provide that a drug testing scheme may
limit the circumstances in which disclosure may occur, for example, limiting the
bodies to which information can be given or limiting the drug testing programs
for the purposes of which information can be disclosed. It is not intended that
this proviso would limit the other limitations above.
Proposed
subsection (5) will provide that nothing in section 17BA limits or is limited by
any other provision of the Act or a drug testing scheme under which ASDA or
ASDMAC is required or permitted to disclose information.
In this
proposed section it is also necessary to define "drug testing program" so that
it is clear to which matters the section relates. Therefore, it is proposed to
define "drug testing program" as meaning a program for the testing of people who
participate in sports, to determine whether they are using particular drugs or
doping methods.
It is proposed that new section17BB provide that a drug
testing scheme may permit ASDA to make information relating to entries on the
Register, including competitor's names, publicly available.
ASDA does not currently have the ability to publicly disclose the name of
athletes whose names have been placed on the RNE. Rather, ASDA releases
information such as the athlete’s sport, the type of decision made
(including the substance in the case of a positive test result), the date of the
test and the sanction imposed by the relevant sporting body. It is the relevant
sporting body (following a hearing and any imposition of sanctions) or the
athlete him or herself that currently releases that information
publicly.
Because ASDA shares results management responsibility with
sporting bodies, and in order to provide full accountability for its functions,
it is proposed that the Act be amended to allow ASDA to add the names of
competitors to the information on the Register available for public release.
The Code provides for public release of athlete's identities.
Proposed
section 17BB will restrict the information to be released to that in relation to
entries concerning competitors that are made on the Register for a drug testing
scheme. It would be intended that in specifying under the drug testing scheme,
this public release would only take place after the athlete has had their case
heard by the sporting body and the sporting body involved has had adequate time
to release the information. It should also be noted that public release may
include publishing on ASDA's website or in its annual report.
Proposed
section 17BB also will provide that nothing in the section limits, or is limited
by, any other provision of the Act or a drug testing scheme under which ASDA is
required or permitted to disclose information.
Item 40 –
Subsection 17C(2)
This item amends subsection 17C(2) by omitting
reference to paragraph 11(2)(f) and substituting it with reference to paragraphs
11(2)(f), (fa), (fb) or (fc). This is a consequential amendment due to the
proposed amendments to subsection 11(2).
Currently subsection 17C(2)
provides clarity as to which decisions may be included in the particular
circumstances specified for the purposed of paragraph 11(2)(f). Because it is
proposed to amend subsection 11(2) to insert the new subjects upon which a drug
testing scheme requires ASDA to make an entry on the Register, it is necessary
to make this amendment.
Item 41 – Paragraph
17J(a)
This item amends paragraph 17J(a) by inserting the comma and
words ", or the way in which the Agency may provide services under such
contracts" after the words "safety checking services".
This proposed
amendment is due to a possible deficiency in the current Act. Paragraph 9(1)(b)
provides ASDA with the function of providing drug testing services. It was never
the intention that all ASDA's drug testing services be provided using government
funding and ASDA is able to carry out such services under fee for service
contracts.
Section 17J of Part 3 of the Act sets out the matters that
are not limited by Part 3 ie. the drug testing schemes. Current paragraph
17J(a) provides that Part 3 does not limit ASDA's powers to enter into contracts
for the provision of drug testing or safety checking services. However, it is
unclear whether there could be a limit on the way those services are provided by
ASDA. It is possible that the way those services are provided are limited by
what is contained in the drug testing schemes.
Therefore, for clarity, it
is proposed to amend paragraph 17J(a) accordingly.
Item 42 –
Subsection 17ZA(1)
This item amends section 17ZA by inserting the
comma and words ", or attempted making" following the word "making". Section
17ZA currently provides for when ASDA can notify sporting administration bodies
of a matter in relation to the testing of competitors on behalf of foreign
sporting organisation or under anti-doping arrangements.
This amendment
is a consequential amendment due to the Code which now sets out a number of
circumstances and conduct which will constitute violations of anti-doping rules
by competitors. As explained above, some of those circumstances and conduct are
either new or revised concepts in relation to the Act. Attempts of such
circumstances and conduct are now to be included.
Item 43
– Paragraphs 17ZA(1)(c) and (d)
This item repeals section
paragraphs 17ZA(1)(c) and (d). These paragraphs deal with the concept of
tampering. This amendment is a consequential amendment due to the other
proposed amendments in relation to tampering due to the Code which now sets out
a number of circumstances and conduct which will constitute violations of
anti-doping rules by competitors.
Therefore, these paragraphs are now
outdated and it is proposed that they be repealed. They will be substituted in
line with other the proposed amendments in relation to tampering.
Item
44 – At the end of paragraph 17ZA(1)(e)
This item amends
paragraph 17ZA(1)(e) by inserting the words "of the sample" at the end of the
current paragraph. This proposed amendment is a clarification of the current
paragraph so that the testing is linked to the testing of a sample.
Item 45 – At the end of subsection 17ZA(1)
This item
amends subsection 17ZA(1) by adding paragraphs (f), (g) and (h). These
paragraphs deal with the concept of tampering. This amendment is a
consequential amendment due to the Code which now sets out a number of
circumstances and conduct which will constitute violations of anti-doping rules
by competitors.
Section 17ZA currently provides for when ASDA can
notify sporting administration bodies of a matter in relation to the testing of
competitors on behalf of foreign sporting organisation or under anti-doping
arrangements. However, , because of the new circumstances and conduct which
will constitute violations of anti-doping rules by competitors, evasions and
tampering with a sports drug matter would also need to be matters on which ASDA
can notify sporting administration bodies in relation to the testing of
competitors on behalf of foreign sporting organisation or under anti-doping
arrangements.
Therefore is it proposed to add: paragraph (f) in relation
to any evasion by the competitor of the attempt by ASDA to make a request to
provide a sample for testing; paragraph (g) in relation to the inability of ASDA
to make a request of a competitor to provide a sample because the competitor
could not be found using information available to ASDA; paragraph (h) in
relation to any tampering by a competitor with a sports drug matter covered by
subparagraph 4A(2)(a)(iv) or (b)(iv) (see item 16 in relation to those
subparagraphs).
Item 46 – Paragraph 17ZB(a)
This item
amends paragraph 17ZB(a) by inserting the comma and words ", or the way in which
the Agency may provide services under such contracts" after the words "safety
checking services".
This proposed amendment is due to a possible
deficiency in the current Act. Paragraph 9(1)(b) provides ASDA with the
function of providing drug testing services. It was never the intention that all
ASDA's drug testing services be provided using government funding and ASDA is
able to carry out such services under fee for service contracts.
Section 17ZB of Part 3A of the Act sets out the matters that are not
limited by Part 3A ie. when ASDA tests on behalf of a foreign sporting
organisation. Current paragraph 17ZB(a) provides that Part 3A does not limit
ASDA's powers to enter into contracts for the provision of drug testing or
safety checking services. These changes will eliminate any uncertainty as to
the way these services may be provided by ASDA.
Item 47 –
Paragraph 17ZC(1)(c)
This item amends paragraph 17ZC(1)(c) by
inserting the comma and words ", or attempted making" following the word
"making". Paragraph 17ZC(1)(c) currently provides for when ASDA can be given
certain information from a sporting administration bodies when ASDA has asked
that body to arrange to test a competitor.
This amendment is a
consequential amendment due to the Code which now sets out a number of
circumstances and conduct which will constitute violations of anti-doping rules
by competitors. As explained above, some of those circumstances and conduct are
either new or revised concepts in relation to the Act. Attempts of such
circumstances and conduct are now to be included.
Item 48 –
Subparagraph 17ZC(1)(c)(iv)
This item repeals subparagraph
17ZC(1)(c)(iv) of Part 3B. It will be substituted - see item 50 below in this
regard.
Item 49 – At the end of subparagraph
17ZC(1)(c)(v)
This item amends subparagraph 17ZC(1)(c)(v) by adding
the words "of the sample" to the end of the current subparagraph. This proposed
amendment is a clarification of the current paragraph so that the testing is
linked to the testing of a sample.
Item 50 – At the end of
paragraph 17ZC(1)(c)
This item adds subparagraphs 17ZC(1)(c)(vi),
(vii) and (vii) to paragraph 17ZC(1)(c).
Current section 17C provides
that ASDA may request other sporting administration bodies to carry out testing
for ASDA. Paragraph 17ZC(1)(c) currently provides for when ASDA can ask to be
given certain information from a sporting administration body when ASDA has
asked that body to arrange to test a competitor.
This amendment is a
consequential amendment due to the Code which now sets out a number of
circumstances and conduct which will constitute violations of anti-doping rules
by competitors.
Therefore, in relation to ASDA being able to ask a
sporting administration body to give ASDA information, proposed new subparagraph
17ZC(1)(c)(vi) will include information about any failure by the person to keep
the sporting administration body informed of where the person can be found;
proposed new subparagraph 17ZC(1)(c)(vii) will include information about the
inability, because of that failure, of the sporting administration body to make
a request of a person to provide a sample; proposed new subparagraph
17ZC(1)(c)(viii) will include information about any tampering by the person with
a sports drug matter covered by subparagraph 4A(2)(a)(ii) or (b)(ii) or
paragraphs 4A(2)(c) or (e) (see item 16 in relation to those subparagraphs and
paragraphs).
Item 51 – Subsection 17ZC(2)
This item
repeals subsection 17ZC(2) of Part 3B and substitutes it with a new subsection
17ZC(2). Part 3B regulates when ASDA asks other sporting administration bodies
to carry out testing rather than ASDA itself doing the testing. This is a
consequential provision. Current subsection 17ZC(2) provides that a drug
testing scheme may authorise ASDA to make certain entries on the Register in
relation to that testing ie. when there is a positive test result or when a
competitor has failed to provide a sample. It will now be necessary to add to
the new proposed instances of when ASDA is authorised to make such entries on
the Register.
Therefore, it is proposed to amend the Act by inserting
new paragraph 17ZC(2)(c) to provide that a drug testing scheme may authorise
ASDA to enter the name of a competitor and specified particulars on the
Register:
(a) if a competitor fails without reasonable cause to comply with a
request by a sporting administration body to provide a sample;
(b) in
specified circumstances including the circumstance that the competitor has
returned a positive test result;
(c) in specified circumstances including the
circumstance that the competitor deliberately evaded an attempt by a sporting
administration body to make a request to provide a sample;
(d) in specified
circumstances including the circumstance that the competitor failed to keep the
sporting administration body informed of where the competitor can be found;
(e) in specified circumstances including the circumstance that the
competitor failed to keep the sporting administration body informed of where the
competitor can be found and but for that failure the body would have made a
request of the competitor to provide a sample;
(f) where the competitor
tampered with a sports drug matter covered by subparagraphs 4A(2)(a)(ii) or
(b)(ii) or paragraph 4A(2)(c), (d) or (e) (see item 16 in relation to those
paragraphs).
Item 52 – Subsection 17ZC(4)
This
item is a consequential provision and inserts references to paragraphs (2)(c),
(d) and (e) after the reference to paragraph (2)(b). Because it is proposed to
amend subsection 17ZC(2) in relation to authorising ASDA to make certain entries
on the Register (see item 51 above), the reference to only paragraph (2)(b) is
no longer correct.
Item 53 – After subsection
17ZC(6)
This item inserts a new subsection (6A). Because it is
proposed to amend subsection 17ZC(2) in relation to authorising ASDA to make
certain entries on the Register (see item 51 above), it will be necessary to
make provision for different fields of sporting activity to be specified as
circumstances in relation to paragraphs 17ZC(2)(c), (d) or (e).
Item
54 – Subsection 17ZC(7)
This item is a consequential provision
and inserts reference to new subsection (6A). Current subsection 17ZC(7)
provides that subsection 17ZC(6) does not by implication limit subsection 33(3A)
of the Acts Interpretation Act 1901.
Because it is proposed to
amend section 17ZC by adding new subsection (6A) it is therefore necessary to
make reference to that new subsection in subsection 17ZC(7).
This item repeals subsection 17ZC(9), which is contained in Part 3B of
the Act, because the definition of "positive test result" has been relocated of
to the general interpretation part of the Act at section 2. Therefore, it is no
longer necessary to specifically provide for a meaning of "positive test result"
in Part 3C.
Item 56 – Paragraph 17ZD(a)
This item
amends paragraph 17ZD(a) by inserting the comma and words ", or the way in which
the Agency may provide services under such contracts" after the words "safety
checking services".
This proposed amendment is due to a possible
deficiency in the current Act. Paragraph 9(1)(b) provides ASDA with the
function of providing drug testing services. It was never the intention that all
ASDA's drug testing services be provided using government funding and ASDA is
able to carry out such services under fee for service contracts.
Section 17ZD of Part 3B of the Act sets out the matters that are not
limited by Part 3A ie. when ASDA tests on behalf of a foreign sporting
organisation. Current paragraph 17ZD(a) provides that Part 3B does not limit
ASDA's powers to enter into contracts for the provision of drug testing or
safety checking services. These changes will eliminate any uncertainty as to the
way these services may be provided by ASDA.
Item 57 – Subsection
18(2AA)
This item repeals subsection 18(2AA) as a consequence of the
relocation of the definition of "negative test result" to the general
interpretation section at section 2 of the Act.
Item 58
– Paragraph 65C(2)(b)
This item amends paragraph 65C(2)(b) by
omitting by the words "paragraph 13(1)(b)" and inserting the words "paragraph
13(1)(b) and (c) and subsection 13(1A)". This is a consequential amendment to
take account of other amendments proposed.
Item 59 – After
paragraph 65C(2)(b)
This item amends subsection 65C(2) by inserting
new paragraph (ba). Section 65C sets out ASDMAC's functions, including that
ASDMAC has such functions as are conferred on ASDMAC under a drug testing
scheme. Subsection 65C(2) sets out examples of functions that may be conferred
on ASDMAC under a drug testing scheme.
Consequential to other proposed
amendments, it will be necessary to provide that under a drug testing scheme
ASDMAC may be conferred with the ability to participate in the review and
appeals processes (or similar processes) that relate directly or indirectly to
decisions of ASDMAC approving, or refusing to approve, the use of scheduled
drugs for therapeutic purposes.
Item 60 – At the end of
subsection 65C(2)
This item amends subsection 65C(2) by inserting new
paragraph (d). Section 65C sets out ASDMAC's functions, including that ASDMAC
has such functions as are conferred on ASDMAC under a drug testing scheme.
Subsection 65C(2) sets out examples of functions that may be conferred on ASDMAC
under a drug testing scheme.
Consequential to the proposed amendments
to Part3A it will be necessary to make it clear that under a drug testing scheme
ASDMAC may be conferred with the ability to disclose information for the
purposes of drug testing programs to sporting administration bodies (see section
17BA, item 39)
Therefore, proposed new paragraph 65C(2)(d) will provide
that ASDMAC may be conferred under a drug testing scheme with the function of
disclosing information, for the purposes of drug testing programs, to sporting
administration bodies (see section 17BA, item 39).
Item 61 –
Paragraph 66(1)(a)
This item amends paragraph 66(1)(a) by inserting
the words "or WADA" after the words "International Olympic Committee". This is
a consequential provision.
Section 66 sets out what is meant by
references to an accredited laboratory in the Act. Because as a result of the
Code WADA will accredit laboratories, it is necessary to make this consequential
provision.
Item 62 – Section 67B
This
item repeals section 67B and substitutes it with new section 67B and inserts
proposed additional sections 67BA and 67BB
New section 67B deals with
tampering where the tamperer is not necessarily a competitor. New section 67BA
is in relation to disclosures of information concerning certain conduct referred
to as anti-doping rule violations in the Code but conduct that is not of a kind
that can be entered on the Register. New section 67BB provides for public
disclosures of negative test results. It is intended that the privacy aspect of
the amendments to the Act would be reviewed three years after they come into
force.
Tampering was not previously a matter on which ASDA was required
or authorised to make entries on the Register, although certain notifications
were permitted to relevant sporting organisations in relation to tampering.
However, in line with other proposed amendments outlined in items 16 and
19 above, tampering by a competitor will now be a registerable and notifiable
event. Therefore, part of the provisions of current section 67B would be
incorporated into the amendments proposed in relation to
tampering.
Therefore, new subsection 67B(1) will provide for the
notification of tampering where the person tampering is not a competitor. That
person may nevertheless be a sporting participant such as a coach or other sport
support personnel, and, if ASDA knows or has reason to believe that
circumstances involve tampering it would be important for ASDA to be able to
inform the relevant sporting administration body so that they could deal with
that person accordingly. If the tamperer is not involved in sport then ASDA
would not be able to take any action in relation to that person. However,
whatever the status of the tamperer, it would be important for ASDA to be able
to inform the relevant sporting administration body if a competitor's interests
were affected by that tampering, whether that effect is beneficial or
detrimental.
The note at the foot of subsection 67B(1) provides an
example, ie. that ASDA could notify a participant's sporting administration body
if the coach of a rival participant tampered with sample provided by the first
mentioned participant.
Proposed subsections 67B(2) and (4) will provide
the appropriate definitional and interpretation provisions in relation to how
the definitions of "relevant national sporting organisation" and relevant
sporting organisation" has effect in this section and which persons the section
applies. Proposed subsection (3) will provide that nothing in section 67B
limits or is limited by any other provision of the Act or a drug testing scheme
under which ASDA is required or permitted to disclose information.
Proposed section 67BA is required as a result of the Code which now sets
out a number of circumstances and conduct which will constitute violations of
anti-doping rules by competitors. However, some of those circumstances and
conduct are not matters for which ASDA is intended to have a substantive role or
for which it would not be appropriate for ASDA to have a role, for example
trafficking or possession of drugs. ASDA does not have nor is it intended that
they have an investigative function.
However, there are instances when
ASDA might hold or receive information in relation to these types of
circumstances and conduct. Therefore, it may be important for ASDA to disclose
such information for example, to a relevant sporting administration body, the
Australian Federal Police or the Australian Customs Service. Disclosure to
sporting administration bodies would be restricted to those specified by
regulation in a drug testing scheme.
It is therefore proposed to amend
the Act to insert additional section 67BA. This section will apply to
information that relates, or appears to relate, to any of the
following:
(a) the use by a person of a scheduled drug or doping
method;
(b) the possession by a person of a scheduled drug or doping
method;
(c) trafficking by a person of a scheduled drug or doping
method;
(d) the administration by a person of a scheduled drug or doping
method;
(e) a person attempting to engage in any conduct referred to
above;
(f) a person aiding, abetting, covering up, or being involved in any
other type of complicity relating to any conduct referred to above.
It is
proposed that subsection (2) set out the bodies to which ASDA may disclose the
information ie. a sporting administration body specified for the purposes of the
section in a drug testing scheme whose schedule of drugs and doping methods
includes the drugs and doping methods to which the information relates, the
Australian Federal Police or the Australian Customs Service to take account of
those new circumstances and conduct which will also require disclosure to
certain sporting administration bodies.
Proposed subsection (3) of the
new section will provide that nothing in this section limits, or is limited by,
any other provision of the Act or a drug testing scheme under which ASDA is
required or permitted to disclose information.
It is also proposed to
define "possession" in relation to a doping method as, when used in relation to
a doping method, meaning possession of the skills, knowledge, substances,
equipment or technology necessary to engage in, or that can be used to engage
in, the doping method.
The word "trafficking" will also be defined.
The drugs and doping methods in relation to sports anti-doping can relate to
prescription drugs or otherwise be legal. While trafficking is often
considered to be selling or distributing in commercial quantities or in relation
to illegal drugs it is intended that trafficking in relation to sports drugs or
doping methods would not be so restricted. Therefore, it is proposed that
"trafficking" mean selling, giving, transporting, sending, delivering or
distributing and when used in relation to a doping method, means trafficking in
skills, knowledge, substances, equipment or technology necessary to engage in,
or that can be used to engage in, the doping method.
Proposed section 67BB will provide for the public disclosure of negative test
results. ASDA does not currently have the ability to publicly disclose the
names of competitors whose names have been not placed on the RNE ie. those
competitors who have returned negative results.
In order to provide full
accountability for all its functions, it is proposed that the Act be amended to
allow ASDA to publicly release the names of competitors who have returned
negative results. This proposal is also made in the interests of promoting
anti-doping in sport, and recognising and congratulating the many competitors
who continually return negative test results without the knowledge of the
public. Currently, the public can only assume negative test results are
returned for that class of competitor because they have not been informed of
positive results for that class.
Therefore, it is proposed that the Act
be amended to allow ASDA to publicly release information relating to the return,
by competitors, of negative results. It is intended that this public release
would be in relation to all testing conducted by ASDA and not just testing under
a drug testing scheme. It is also proposed that, because this information
should not be sensitive in any way, the public release could take place at
ASDA's discretion.
Proposed subsection (3) of the new section will
provide that nothing in this section limits, or is limited by, any other
provision of the Act or a drug testing scheme under which ASDA is required or
permitted to disclose information.
Item 63 – Subparagraph
67C(1)(d)(ii)
This item repeals subparagraph 67C(1)(d)(ii). This
item is a consequential provision. Subsection 67C(1) deals with disclosures by
ASDA, when a competitor's name and particulars are entered on the Register, to
government or government agencies which provide support to competitors.
Item 64 – Paragraph 67C(1)(d)
This item amends
subparagraph 67C(1)(d) by inserting new subparagraphs (iv), (v), (vi) and (vii).
This item is a consequential provision.
Section 67C deals with
disclosures by ASDA, to government or government agencies which provide support
to competitors, when a competitor's name and particulars are entered on the
Register.
This amendment is due to the Code which now sets out a number
of circumstances and conduct which will constitute violations of anti-doping
rules by competitors It is therefore necessary to amend this paragraph to take
account of those new circumstances and conduct.
Therefore, it is proposed
to add subparagraphs (iv), (v), (vi) and (vii) in order for ASDA to be able to
disclose to government or government agencies in relation to the following
additional types of information:
(iv) any evasion by a competitor of an
attempt to make a request, by ASDA pursuant to paragraph 11(2)(c) in relation to
a drug testing scheme or by a sporting administration body under paragraph
17ZC(1)(a) in relation to testing by other sporting administration bodies, to
provide a sample;
(v) any failure by the competitor to provide information
about where the competitor can be found;
(vi) the inability, because of that
failure in point (v), of ASDA or a sporting administration body to make a
request of the kind mentioned in point (iv);
(vii) any tampering by the
competitor tampered with a sports drug matter covered by subparagraph
4A(2)(a)(i) or (ii), or (b)(i) or (ii), or paragraphs 4A(2)(c), (d) or (e) (see
item 16 in relation to those subparagraph and paragraphs).
Item 65
– Paragraph 67C(2)(b)
This item amends paragraph 67C(2)(b) by
inserting the commas and words ", or attempts to request," after the word
"requests".
Current paragraph 67C(2)(b) provides for when ASDA makes
requests a person to provide a sample under a contract ie. not under a drug
testing scheme.
This amendment is a consequential amendment due to the
Code which now sets out a number of circumstances and conduct which will
constitute violations of anti-doping rules by competitors.
Therefore,
it is proposed to amend paragraph 67C(2)(b) so that attempts of requests are
included.
Item 66 – Paragraph 67C(2)(b)
This item
amends paragraph 67C(2)(b) by inserting the comma and words "or attempted
request," after the words "out of the request".
Current paragraph
67C(2)(b) provides for when ASDA makes requests a person to provide a sample
under a contract ie. not under a drug testing scheme.
This amendment is
a consequential amendment due to the Code which now sets out a number of
circumstances and conduct which will constitute violations of anti-doping rules
by competitors.
Therefore, it is proposed to amend paragraph 67C(2)(b)
so that attempted requests are included.
Item 67 – Paragraph
67C(2)(d)
This item repeals paragraph 67C(2)(d). This is a
consequential amendment and due other proposed amendments relating to the
concept of tampering and this paragraph is otiose.
Item
68 – At the end of subsection 67C(2)
This item amends paragraph
67C(2) by adding paragraphs (f), (g), (h) and (i). This item is a consequential
provision.
Section 67C generally deals with disclosures by ASDA to
government or government agencies which provide support to competitors or
persons. Subsection 67C(2) allows such disclosures in the circumstance when
ASDA has requested a person to provide a sample under a contract entered in to
by ASDA, for example, with a sporting body.
This amendment is due to the
Code which now sets out a number of circumstances and conduct which will
constitute violations of anti-doping rules by competitors. It is therefore
necessary to amend this paragraph to take account of those new circumstances and
conduct.
Proposed paragraphs (f), (g), (h) and (i) will provide for ASDA
to be able to disclose to government or government agencies in relation to the
following additional types of information:
(a) any evasion by a person of an
attempt by ASDA to make a request for to provide a sample;
(b) any failure by
the person to keep ASDA informed about of where the person can be found;
(c) the inability, because of that failure in point (b), of ASDA to make a
request of the kind mentioned in point (a);
(d) any tampering by the
competitor tampered with a sports drug matter covered by subparagraphs
4A(2)(a)(iii) or (b)(iii) (see item 16 in relation to those
subparagraphs).
Item 69 – After section 72
This item
inserts new section 72. Due to the proposed new range of disclosures to be
authorised under the Act, this amendment is necessary to ensure the operation of
the Privacy Act 1988 is not limited.
Therefore, it is proposed
that new section 72 provide that nothing in the Act, a drug testing scheme or
drug testing orders limits the operation of the Privacy Act 1988.
Item 70 - Certain amendments apply to all drug testing
schemes
This transitional provision sets out how matters should be
dealt with in relation to drug testing schemes. The item provides that the
amendments made in Part 1 that affect the matters that must or may be dealt with
in a drug testing scheme, or that affect how a matter must or may be dealt with
in a drug testing scheme, apply in relation to all drug testing schemes, whether
formulated before or after that commencement.
Item 71 - Certain
amendments do not authorise disclosure of information held before the
commencement of the amendments
This items is a transitional provision
which will ensure that the amendments made by items in Part 1 that affect the
disclosure of information by ASDA or ASDMAC do not apply in relation to
information held by ASDA or ASDMAC before the commencement of those
items.
Item 72 - Certain amendments do not apply to conduct that
occurred before the commencement of the amendments
This transitional
item provides that the amendments made by Part 1 that relate to any of the
following circumstances, do not apply in relation to any such circumstances that
occurred before the commencement of those items. which will ensure that the
amendments made by items in Part 1 that affect the disclosure of information by
ASDA or ASDMAC do not apply in relation to information held by ASDA or ASDMAC
before the commencement of those items:
(a) a person evading a request to
provide a sample;
(b) a person failing to comply with a request to provide
information about where he or she can be found;
(c) a request to provide a
sample not being able to be made to a person because of a failure by the person
to provide information about where he or she can be found;
(d) a person
tampering with a sports drug matter.
Item 73 - Certain amendments
apply to contracts entered into before or after the commencement of the
amendments
This is a transitional provision which will ensure that
the amendments made by items 41, 46 and 56 apply in relation to contracts,
whether entered into before or after the commencement of those items.
Item 74 - Certain amendments do not apply to samples requested
before the commencement of the amendments
This is a transitional
provision which will ensure that the amendments made items by items 4, 5, 30, 55
and 57 do not apply in relation to samples requested before the commencement of
the amendments.
Item 75 - Continued effect of certain
regulations
This item is a transitional provision which provides that
regulations in force immediately before the commencement of an item in Part 1,
and that were so in force for the purposes of the Act that is amended by that
item, have effect after the commencement as if they were made for the purposes
of that provisions.