ASADA Act amendments - what the changes mean for sport in Australia
Sports law eBulletin - 2 October 2014
The Australian Parliament is currently considering a number of proposed amendments to the ASADA Act. The amendments are based on changes made to the World Anti-Doping Code during a recent revision of the Code. The Bill seeks to simplify the process by implementing a Violations List once a breach of the Code has been finalised, in contrast to the current Register of Findings system.
The amendments will also create a new Anti-Doping Rule Violation, relating to "prohibited associations", as well as extending the limitation period in which ASADA can bring anti-doping charges.
The amendments are reflective of the anti-doping movement's shift from testing only, to more reliance on investigation and cooperative means of doping control.
In this eBulletin we outline the proposed amendments and what they will mean for sport in Australia.
The Australian Sports Anti-Doping Authority Amendment Bill 2014 (Bill) was recently referred to the Senate Community Affairs Legislation Committee for inquiry and report.
The Bill proposes five amendments to the current Australian Sports Anti-Doping Authority Act 2006 (Cth) (Act) which are all scheduled to come into effect on 1 January 2015.
The current "Register of Findings" will be replaced by a "Violations List". The new Violations List will detail all athletes or support persons whose sanction for an Anti-Doping Rule Violation (Violation) has been finalised. This amendment aims to simplify the process of charging and sanctioning an athlete or support person for a Violation.
Under the current system, ASADA issues its show-cause notice to the athlete or support person, and thereafter the Anti-Doping Rule Violation Panel determines whether to place the person's details onto the Register of Findings. If so, ASADA informs the person's sport, and the person is then charged under the terms of the sport's anti-doping policy. This two-stage process is unique to Australia. It has long been considered antiquated and "clunky" in operation, and has resulted in matters in Australia taking a comparatively long time to process as compared to other countries.
The proposed new process is intended to streamline the steps involved. Once an athlete or support person has been charged, a hearing conducted and the person has been sanctioned by their relevant sport, ASADA will list the nature of the doping offence and the resulting sanction on the (publicly available) Violations List. Such an approach will finally align the anti-doping process in Australia with that of the rest of the world.
The Bill creates a new Violation of prohibited association, in which it will be a Violation for an athlete or support person to associate, in a professional or sports related capacity, with another person who is banned from sport or has been criminally convicted or professionally disciplined for an action that would constitute a Violation.
By way of example, it will be considered a Violation for an athlete to be trained by a coach who is currently serving a sanction. The proposed wording is very broad and, therefore, it may also be considered a Violation for an athlete to be trained by a coach who is not serving a Violation sanction, but who has been professionally disciplined for an action that would constitute a Violation. For example, a coach who is also a teacher, lawyer, doctor or other industry professional, and who has been disciplined for recreational drug use by their industry body.
The amendment has the potential to be wide-reaching in its application across sports, and will require sports to be thorough in their recruiting and appointments. The prohibition on association only applies in a sporting or professional capacity and is not intended to prevent social or family associations with a banned person.
Other amendments proposed by the Bill include:
- Increasing the limitation period (ie the period in which a charge must be brought) for actions in relation to potential Violations from eight years to ten years.
- Creating a right of appeal within Australia for athletes who are denied access to medication under a Therapeutic Use Exemption (TUE). Where an athlete's application to have medication approved under the TUE is unsuccessful, they will now have the opportunity to seek consideration of the decision by a review panel, rather than having to appeal directly to WADA.
- It will be an offence, with a maximum of two years' imprisonment, to disclose protected information to anyone besides an authorised person for the purposes of the ASADA Act. While there are currently provisions under the ASADA Act relating to disclosure of confidential information, the amendments seek to simplify these rules.
Overall, the measures introduced in the Bill will simplify and streamline the anti-doping process in Australia. In particular, the introduction of the Violations List and the TUE review panel will assist both athletes and sports and are long overdue changes.
The introduction to the WADA Code of the new violation for "prohibited association" and the lack of information surrounding its operation in practice, may create a few challenges for ASADA and is likely to result in some court challenges in order to get clarity on this new violation.
However, the amendments have not addressed some of the major concerns that sport has in Australia such as:
- the requirement for matters to be heard by CAS at first instance (in most cases) and the associated costs of such hearings, where other jurisdictions such as the UK, the USA, France, Canada and New Zealand have no-cost tribunals available to their sports and athletes; and
- those issues pertaining to professional team sports which face a different set of challenges from individual sports.
It will be interesting to see if the Senate Community Affairs Legislation Committee makes any recommendations on the matters outlined above in its review of the Bill.
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