From today, 1 August 2013, the Australian Sports Anti-Doping Authority (ASADA) has a number of new powers by virtue of the recent passage in the Commonwealth Parliament of the Australian Sports Anti-Doping Authority Amendment Act 2013 (Cth) (the Amending Act).
The Amending Act was introduced to strengthen the investigative powers of ASADA in the Australian Sports Anti-Doping Authority Act 2006 (Cth) (ASADA Act) and to enhance information sharing arrangements with other government agencies. The Amending Act also confirms the statutory period for commencing actions against athletes for anti-doping rule violations and clarifies the conflict of interest provisions for members of anti doping bodies established under the ASADA Act.
The key amendments introduced by the Amending Act are summarised below.
Disclosure Notice to Compel a Person to Assist in Investigations
The primary objective of the Amending Act is to provide ASADA with additional investigative powers to identify those athletes, and athlete support personnel, using prohibited performance enhancing substances and methods. This legislative move comes in the wake of the Australian Crime Commission's February 2013 report, Organised Crime and Drugs in Sport, which, among other things, found that there is (or is suspected to be) widespread use of prohibited performance enhancing substances by professional athletes in a number of sports in Australia and that traditional analytical testing of athlete urine and blood samples by ASADA is not effective in detecting increasingly sophisticated doping practices.
The Amending Act has introduced new laws that provide ASADA's Chief Executive Officer (CEO) with the power to issue a written "disclosure notice" requiring a person to do one or more of the following within the period specified in the notice:
- attend an interview with ASADA investigators
- give the kind of information specified in the notice to ASADA
- produce specific documents, materials (including electronic materials and products) and things (such as video cameras, medications and training bags) to ASADA investigators.
The CEO may also, by writing, delegate his or her power to issue a disclosure notice to a member of the ASADA staff who is a senior executive employee.
The disclosure notice must only be issued by the CEO (or the CEO's delegate) if the CEO declares, in writing, that he or she reasonably believes that the person subject to the notice has information, documents or things that may be relevant to an anti-doping investigation.
Notably, a disclosure notice can also be issued to compel not only an athlete to assist in ASADA investigations but also their associates and support persons.
Failure to Comply with a Disclosure Notice
The Amending Act has inserted a civil penalty into the ASADA Act so that any person who fails to comply with a disclosure notice will face a fine of up to 30 penalty units (currently AUD5,100) for each day that they fail to provide the information, documents or things requested in the disclosure notice.
ASADA's CEO will need to apply to a relevant court for an order that the person, who is alleged to have contravened the civil penalty provision, pay the pecuniary penalty to the Commonwealth.
However, an alternative to commencing such Court proceedings exists on account of amendments by the Amending Act to the Australian Sports Anti-Doping Authority Regulations 2006 (Cth). Those amendments establish an infringement notice scheme whereby the ASADA CEO can issue an infringement notice to a person who contravenes the requirements of a disclosure notice. The notice will give the person the option of either paying a fine of up to six penalty units (currently AUD1,200) or electing to have the matter dealt with by a court. It is intended that the infringement notice scheme will provide the CEO with flexibility to promptly manage matters that involve non-compliance with a disclosure notice.
A person will avoid the penalties described above if they can demonstrate that they do not possess the information, document or thing stated in the disclosure notice and that they have been unable to obtain such information, documents or things after taking all reasonable steps.
In practice, the amendments will mean that ASADA can issue a disclosure notice to a person who has previously been unwilling to assist its anti-doping investigators and if that person does not comply with the notice, ASADA will have the power to fine them and/or commence proceedings against them.
The Amending Act also introduces a new section into the ASADA Act which will excuse an individual from answering a question sought by a disclosure notice if the answer to the question may incriminate them or expose them to a penalty. However, the person will not be excused from producing a document or thing required by the disclosure notice on the grounds of self-incrimination.
This means that people will be able to retain their right to silence in relation to information sought in a disclosure notice but will not be able to avoid producing any document or thing set out in the notice, even if doing so will result in self-incrimination.
The Amending Act also provides that any incriminating information, document or thing provided under a disclosure notice will be inadmissible as evidence against that person in:
- civil proceedings, unless the proceedings arise under, or in relation to, the ASADA Act or regulations; or
- any criminal proceeding, provided that the information is not false or misleading.
Limitations of Actions Period
Ordinarily, the statute of limitations with regard to civil proceedings varies between three and six years in each state and territory of Australia. For the avoidance of doubt, the Amending Act amends the ASADA Act to bring it into line with Article 17 of the World Anti-Doping Code which sets an eight year limit on authorities bringing investigations and actions in relation to anti-doping. As such, ASADA has eight years in which to commence an action against an athlete or support person for an anti-doping rule violation and this limitation period will prevail over the general statutory limitation periods in each state or territory.
New Arrangements for ASADA to Share Information
ASADA has information sharing programs in place with bodies such as the Therapeutic Goods Administration and the Australian Customs and Border Protection Service.
The Amending Act broadens these information sharing arrangements by amending the Australian Postal Corporation Act 1989 (Cth) to enable Australia Post to provide information or documents to the CEO of ASADA as long as the provision of the information or documents is for the purposes of the administration of the National Anti-Doping Scheme.
It is the intention of the Amending Act that these amendments will assist ASADA's intelligence and investigations by allowing it to obtain information concerning persons residing at an address which has received prohibited substances by post. However, ASADA will not be able to intercept or examine the contents of any mail items containing the prohibited substances with that task remaining the responsibility of the Australian Customs and Border Protection Service.
Clarification of the Roles of the Anti-Doping Rule Violation Panel and the Australian Sports Drug Medical Advisory Committee
The Amending Act amends the ASADA Act to confine the operation of the Anti-Doping Rule Violation Panel (ADRVP) to making findings into whether an anti-doping rule violation has been committed by an athlete. The ADRVP will no longer be expected to then make a recommendation to the relevant sporting body as to the consequence of the athlete's anti-doping violation.
In practice this will mean that the ADRVP will consider evidence of a possible anti-doping rule violation provided to it and determine whether a possible anti-doping rule violation has been committed. The ADRVP's findings will then be passed to the relevant sporting body to confirm the violation and issue the appropriate sanction, in accordance with its anti doping policies, to the individual concerned.
The Amending Act also seeks to ensure that there is a clear separation between the ADRVP and the Australian Sports Drug Medical Advisory Committee (ASDMAC), the body responsible for giving athletes approval to use prohibited medications for legitimate therapeutic purposes. This will be done by prohibiting members of:
- the ADRVP from providing information, advice, evidence or support to a person who had a matter before ASDMAC, sporting administrative body or a court or tribunal in respect of an anti-doping matter
- ASDMAC from providing information, advice, evidence or support to a person who has a matter before the ADRVP or in anti-doping proceedings before other bodies.
Further, ASDMAC members are prohibited from taking part in any deliberations or decisions of a sporting administration body in relation to anti-doping violation without the prior written consent of ASADA's CEO.
The introduction of the Amending Act signals a clear commitment by the Australian Government to protecting the integrity of professional sporting codes by ensuring that ASADA has the increased powers it says it needs to deal with increasingly sophisticated doping practices.
Now that the Amending Act is fully operational it will be interesting to observe how ASADA will exercise its increased powers, particularly in relation to some of the issues that were highlighted by the Australian Crime Commission's report on Organised Crime and Drugs in Sport.
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