Most Read Contributor in Australia, September 2016
The Australian Sports Anti-Doping Authority Amendment Bill
2013 (Cth) (Bill) was passed by the
Australian Parliament on 27 June 2013. Subject to proclamation by
the Governor-General, the Australian Sports Anti-Doping Authority
(ASADA) expects that it will be in a position to
apply the new provisions set out in the Bill in its day-to-day work
from late July 2013.
ASADA is the Australian Government agency responsible for
protecting Australia's sporting integrity through the
elimination of doping and the implementation of the World
Anti-Doping Code in Australian sport.
Purpose of New Legislation
The objective of the new legislation is to strengthen
ASADA's investigative functions and enhance information sharing
arrangements with other government agencies.
The key focus of the Bill is to give ASADA the power to issue a
'disclosure notice' to compel persons of interest to assist
ASADA in its investigations. The legislation will enable ASADA to
compel not only athletes and support staff, but also those persons
who work with athletes at the fringes and are not directly employed
by sporting clubs, to attend interviews and cooperate with
Persons issued with a disclosure notice will be required to
attend interviews with ASADA investigators answer questions or
provide information, documents or things to investigators.
If an individual fails to comply with a disclosure notice, he or
she faces a fine of up to $5,100 for each day of
A Less Controversial Act
Not all of the proposed amendments to the legislation governing
ASADA have been passed by Parliament.
In its original stages, the Bill controversially proposed
abrogating the privilege against self-incrimination, meaning that
persons issued with a disclosure notice could not refuse to answer
questions asked by ASADA merely on the basis that by doing so, they
might incriminate themselves or expose themselves to a penalty
– commonly colloquially referred to as a 'right to
silence'. This was intended to address ASADA's concerns
about investigations often being hindered by a person's refusal
to provide information to anti-doping investigators on the basis
that the information might be incriminating.
The legislature intended that the abrogation of the 'right
to silence' would not expose individuals to other criminal or
civil proceedings – the Bill provided that any evidence given
to or documents obtained by investigators could not be used against
a person in criminal proceedings, except for provision of false or
misleading information or documents to ASADA.
However, the 'right to silence' was re-instated after
negotiations with the Greens, who were keen to ensure that various
checks and balances were in place before supporting the new
legislation. Senator Richard Di Natale told Parliament that
"ultimately [the Greens] do accept the argument that ASADA
needs further powers to expand its investigations into doping...
but those powers need to be limited and they need to be fully
compatible with fundamental legal and human rights that we value so
highly in this country".
Another significant change to the original Bill, negotiated by
the Greens, protects doctor-patient confidentiality such that GPs
will only be required to answer ASADA's questions in relation
to doping, and not in relation to an athlete's general medical
The fact that the legislature even considered abrogating the
privilege against self-incrimination – one of the core
principles of our criminal justice system and a fundamental human
right – is an interesting reflection on how Australia
perceives its athletes and sport in general and the standards it
holds them to.
The privilege against self-incrimination is designed to ensure
that investigators cannot use evidence obtained from individuals
under duress or through coercion.
Abrogation of that privilege would have subjected athletes and
support persons to a higher threshold for giving evidence to
authorities than individuals suspected of criminal offences.
Only time will tell whether the new powers given to ASADA will
bolster its investigative functions and its ability to stamp out
the use of drugs in sport. It will be of no surprise to anyone if
the first disclosure notice issued by ASADA is to former Essendon
Football Club sports scientist, Stephen Dank. At the time of
writing this article, Mr. Dank has told media outlets that he may
seek to challenge the Bill in the High Court.
We will let you know the progress and outcome of any such
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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