Background

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 ASADA.

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 non-compliance.

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 history.

Analysis

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.

Conclusions

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 challenge.

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