Australian Sports Drug Agency Amendment Act 1999 No. 5, 1999
Australian Sports Drug Agency Amendment Act 1999 No. 5, 1999 An Act to amend the Australian Sports Drug Agency Act 1990, and for other purposes
Contents 1............ Short title............................................................................................ 2............ Commencement.................................................................................. 3............ Schedule(s)......................................................................................... Schedule 1—Amendment of the Australian Sports Drug Agency Act 1990
Australian Sports Drug Agency Amendment Act 1999 No. 5, 1999
An Act to amend the Australian Sports Drug Agency Act 1990, and for other purposes [Assented to 31 March 1999] The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Australian Sports Drug Agency Amendment Act 1999.
2 Commencement
(1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation. (2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendment of the Australian Sports Drug Agency Act 1990
1 Subsection 2(1) (definition of accredited laboratory) Repeal the definition, substitute: accredited laboratory has the meaning given by section 66. 2 Subsection 2(1) Insert: analytical investigative body means a body recognised by an International Sporting Federation as a body that is qualified to investigate samples. 3 Subsection 2(1) (definition of applicable procedures) Repeal the definition. 4 Subsection 2(1) (definition of approved anti-doping body) Repeal the definition. 5 Subsection 2(1) Insert: ASDMAC means the Australian Sports Drug Medical Advisory Committee established by section 65B. 6 Subsection 2(1) Insert: ASDMAC Chairman means the Chairman of the Australian Sports Drug Medical Advisory Committee. 7 Subsection 2(1) Insert: ASDMAC member means a member of the Australian Sports Drug Medical Advisory Committee, and includes the ASDMAC Chairman. 8 Subsection 2(1) Insert: doping method includes: (a) the manipulation or substitution of any of the following: (i) any human biological fluid; (ii) any human biological tissue (whether alive or otherwise); (iii) any human breath; in a manner that is capable of concealing the use of a drug by the person concerned; and (b) the use of a substance in a manner that is capable of concealing the use of a drug by the person concerned. 9 Subsection 2(1) Insert: drug includes any substance (whether naturally occurring or otherwise). 10 Subsection 2(1) (definition of drug testing program) Repeal the definition. 11 Subsection 2(1) Insert: drug testing scheme means a scheme in force under section 11. 12 Subsection 2(1) Insert: drug testing service means a service for testing one or more persons for the use of drugs, where: (a) each person is a participant in a sporting activity; and (b) the testing is by means of testing a sample provided by the person. 13 Subsection 2(1) (definition of foreign sampling request) Repeal the definition. 14 Subsection 2(1) (definition of negative test result) Repeal the definition. 15 Subsection 2(1) (definition of positive test result) Repeal the definition. 16 Subsection 2(1) (definition of Register) Repeal the definition, substitute: Register means a Register of Notifiable Events established under a drug testing scheme. 17 Subsection 2(1) Insert: registered medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory. 18 Subsection 2(1) (paragraph (a) (second occurring) of the definition of relevant International Sporting Federation) Renumber as paragraph (b). 19 Subsection 2(1) Insert: research includes statistical research. 20 Subsection 2(1) (definition of reviewable decision) Repeal the definition. 21 Subsection 2(1) Insert: safety checking service means a service for testing one or more persons for the purpose of ascertaining whether each person’s physiological or psychological state makes it unsafe for the person to participate in a sporting competition, where the testing is by means of testing a sample provided by the person. 22 Subsection 2(1) (definition of sample) Repeal the definition, substitute: sample means any of the following: (a) any human biological fluid; (b) any human biological tissue (whether alive or otherwise); (c) any human breath. 23 Subsection 2(1) (definition of scheduled drug or doping method) Repeal the definition, substitute: scheduled drug or doping method means a drug, or a doping method, included in a schedule set out in a drug testing scheme. 24 Subsection 2(1) Insert: sporting administration body means: (a) the International Olympic Committee; or (b) a foreign sporting organisation; or (c) a national sporting organisation; or (d) a sporting organisation; or (e) a tribunal, committee or other investigative body that is associated with a body referred to in paragraph (a), (b), (c) or (d); or (f) the Commission. 25 Subsection 2(1) Insert: therapeutic approval body means a body recognised by an International Sporting Federation as a body that is qualified to grant approval for the use of drugs for therapeutic purposes. 26 Paragraph 2A(1)(j) Omit “the Register”, substitute “a Register”. 27 At the end of paragraph 3(1)(c) Add: ; or (iii) receives advice or other services from the government or agency. 28 Subsection 4(1) Repeal the subsection, substitute: (1) The following are examples of situations in which the Agency may request a person to provide a sample: (a) the request is made under a drug testing scheme (see paragraph 9(1)(a) and Part 3); (b) the request is made under a contract entered into by the Agency for the provision of drug testing services (see paragraph 9(1)(b)); (c) the request is made under a contract entered into by the Agency for the provision of safety checking services (see paragraph 9(1)(ea)); (d) the request is made at the instance of a foreign sporting organisation or under an anti-doping arrangement (see Part 3A). 29 Paragraph 8(a) Omit “scheduled”. 30 After paragraph 8(a) Insert: (aa) to facilitate the safety of participants in sporting competitions; and 31 Paragraphs 8(b) and (d) After “relating to”, insert “the use of”. 32 Paragraphs 9(1)(a), (b) and (c) Repeal the paragraphs, substitute: (a) such functions as are conferred on the Agency by a drug testing scheme; (b) to provide drug testing services; 33 Paragraphs 9(1)(e), (f) and (i) Before “drugs in sport”, insert “the use of”, 34 After paragraph 9(1)(e) Insert: (ea) to provide safety checking services; 35 After paragraph 9(1)(f) Insert: (fa) to collect, analyse, interpret and disseminate information about matters relating to the use of drugs in sport and the safety of participants in sporting competitions; (fb) to carry out research relating to the use of drugs in sport and the safety of participants in sporting competitions; 36 Paragraph 9(1)(g) Omit “about”, substitute “relating to the use of”. 37 Paragraph 9(1)(g) After “drugs in sport”, insert “and the safety of participants in sporting competitions”. 38 At the end of subsection 9(1) Add: (m) to do anything incidental to, or conducive to, the performance of any of the above functions. 39 Subsection 9(2) Repeal the subsection, substitute: (2) In the performance of its functions, the Agency must not collect samples from persons for any purpose other than: (a) enabling the testing of the samples to determine whether persons have been using drugs; or (b) enabling the testing of the samples to determine whether persons’ physiological or psychological states make it unsafe for them to participate in sporting competitions. (2A) If the Agency collects samples for a purpose referred to in paragraph (2)(a) or (b), the Agency may use the samples, or the results of the testing of the samples, for the purposes of carrying out, or supporting, research relating to the use of drugs in sport or the safety of participants in sporting competitions. 40 Subsection 9(6) Omit “its functions” (first occurring), substitute “the functions conferred on it by this Act”. 41 At the end of subsection 9(6) Add: ; and (h) by way of the provision of a service, if the provision of the service: (i) utilises the Agency’s spare capacity; or (ii) maintains or improves the specialised technical skills of the Agency’s staff in relation to the testing of competitors; and does not impede the Agency’s capacity to perform its other functions. 42 At the end of section 9 Add: (7) In subsection (6): this Act includes a drug testing scheme. 43 Subsection 9A(1) Repeal the subsection, substitute: (1) If a law of a State or Territory confers a power or function on the Agency, the Agency may, with the written approval of the Minister, exercise that power or perform that function, as the case may be. (1A) This Act does not prevent the Minister from giving an approval under subsection (1) in relation to a law of a State or Territory that requires or authorises the Agency to: (a) make an entry on a Register; or (b) in a case where an entry on a Register was made in accordance with such a law—remove that entry. 44 Subsection 9A(2) Omit “If a law of a State or Territory covered by subsection (1)”, substitute “If the Agency is authorised to exercise a power, or perform a function, under a law of a State or Territory and that law”. 45 Subsection 9A(2) After “jurisdiction or”, insert “last-mentioned”. 46 Subsection 9A(2) After “perform that”, insert “last-mentioned”. 47 After paragraph 10(1)(ba) Insert: (bb) form, or participate in the formation of, companies; and 48 After section 10 Insert:
10A Limitations on formation etc. of companies
(1) The Agency must not form, or participate in the formation of, a company except with the written approval of the Minister. (2) A person must not be appointed as a director of a company owned by the Agency except with the written approval of the Minister. (3) A company owned by the Agency must not change its constitution except with the written approval of the Minister. For this purpose, constitution has the same meaning as in the Corporations Law. (4) Before giving an approval under subsection (2) or (3), the Minister must consult the Minister for Finance and Administration. (5) The Minister is not taken, for the purposes of the Corporations Law, to be a director of a company owned by the Agency because of the powers that are conferred on the Minister by subsections (2) and (3). (6) The Minister for Finance and Administration is not taken, for the purposes of the Corporations Law, to be a director of a company owned by the Agency because of the right conferred on the Minister for Finance and Administration by subsection (4). (7) For the purposes of this section, a company is owned by the Agency if, and only if: (a) in the case of a company limited by shares—all the shares in the company are beneficially owned by the Agency; or (b) in the case of a company limited by guarantee—all the interests and rights of the members in or in relation to the company are beneficially owned by the Agency.
10B Formation of Foundation
(1) The Minister may arrange for the formation of a company limited by guarantee, where: (a) all the interests and rights of the members in or in relation to the company are beneficially owned by the Commonwealth; and (b) the purpose of the company is to raise money to support: (i) research relating to the use of drugs in sport; and (ii) initiatives that increase the skills and knowledge of people about matters relating to the use of drugs in sport. (2) Subsection 9(6) applies to the activities of the company in a corresponding way to the way in which that subsection applies to the functions of the Agency. (3) Subsection (1) does not, by implication, limit the Agency’s powers. 49 Part 3 Repeal the Part, substitute:
Part 3—Drug testing schemes
11 Drug testing schemes
(1) The regulations may formulate one or more drug testing schemes. (2) A drug testing scheme is a scheme that: (a) is expressed to apply to: (i) all competitors; or (ii) a specified class of competitors; and (b) sets out a schedule of drugs and doping methods for the scheme and permitted levels (if any) in relation to each such scheduled drug or method; and (c) authorises the Agency to request a competitor to provide a sample for the purpose of detecting whether or not the competitor has used such a scheduled drug or method; and (d) requires the Agency to establish and maintain a Register of Notifiable Events for the scheme; and (e) requires the Agency to enter the name of a competitor on that Register if the competitor fails, without reasonable cause, to comply with a request by the Agency to provide such a sample; and (f) requires the Agency to enter the name of a competitor on that Register in specified circumstances, being circumstances that consist of, or include, the circumstance that the competitor has returned a positive test result in relation to such a sample; and (g) requires the Agency to enter, on that Register, specified particulars relating to a competitor referred to in paragraph (e) or (f); and (h) requires the Agency to give written notice of the making, and of particulars, of an entry in that Register to: (i) each relevant national sporting organisation in relation to the competitor concerned; and (ii) each relevant sporting organisation (if any) in relation to the competitor concerned; and (i) complies with the statement of competitors’ rights set out in section 15. Note 1: For examples of circumstances that may be specified for the purposes of paragraph (2)(f), see section 13. Note 2: For positive test result, see section 14. Specification of different circumstances (3) Circumstances specified for the purposes of paragraph (2)(f) may differ according to: (a) the fields of sporting activities in which competitors compete; and (b) the drugs or doping methods revealed by positive test results. Subsection 33(3A) of the Acts Interpretation Act 1901 not limited (4) Subsection (3) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901. Schedule may apply, adopt or incorporate matters contained in other instruments (5) The schedule referred to in paragraph (2)(b) may make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing made by a sporting administration body: (a) as in force or existing at a particular time; or (b) as in force or existing from time to time.
12 Failure to comply with a request
For the purposes of this Part, a competitor fails to comply with a request by the Agency to provide a sample if, and only if: (a) the competitor fails to provide a sample as required by the scheme; or (b) the competitor fails to complete or sign any form required by the scheme to be completed or signed by the competitor; or (c) after providing the sample, the competitor: (i) fails to do anything in relation to the sample that is required by the scheme to be done by the competitor; or (ii) does something in relation to the sample that the scheme requires the competitor not to do.
13 Investigations and therapeutic use
(1) The following are examples of circumstances that may be specified for the purposes of paragraph 11(2)(f): (a) a competitor has returned a positive test result in relation to a sample and investigations conducted by the ASDMAC or an analytical investigative body have revealed that the positive test result is not attributable to naturally occurring levels of the substance concerned; (b) a competitor has returned a positive test result in relation to a sample and the competitor had approval from the ASDMAC or a therapeutic approval body for the use of the drug concerned for therapeutic purposes but the relevant conditions applicable to that use were not complied with by the competitor. Note: For positive test result, see section 14. (2) A drug testing scheme may provide that, in the course of an investigation conducted by the ASDMAC, or an analytical investigative body, in respect of a sample provided by a competitor, the ASDMAC or the analytical investigative body, as the case may be, may ask the Agency to make to the competitor one or more further requests of the kind mentioned in paragraph 11(2)(c).
14 Positive test result
For the purposes of the application of this Part to a particular drug testing scheme, a positive test result, in relation to a competitor who competes in a particular field of sporting activity, is a finding, made: (a) by an accredited laboratory; or (b) using specified analytical techniques and equipment; by means of testing of a sample provided by the competitor, to the effect that: (c) the testing reveals the presence of a drug in the sample or the use of a doping method by the competitor, being a drug or doping method: (i) that is included in the schedule of drugs and doping methods set out in the scheme; and (ii) that is specified by the scheme to be a drug or doping method applicable to that field of sporting activity; and (d) if that schedule sets out a permitted level in relation to that drug or doping method and in relation to that field of sporting activity—the testing reveals that the permitted level has been exceeded.
15 Statement of competitors’ rights
(1) Subsections (2), (3), (4) and (5) set out the statement of competitors’ rights that is to be complied with by a drug testing scheme. (2) A competitor has a right to be notified orally or in writing of the possible consequences of a failure to comply with a request by the Agency to provide a sample. (3) A competitor has a right to be notified in writing of the making of an entry on the Register of Notifiable Events for the scheme. (4) A competitor has a right to apply to the Administrative Appeals Tribunal for review of a decision of the Agency to enter the competitor’s name and particulars on the Register of Notifiable Events for the scheme. (5) A competitor has a right to be notified orally or in writing of the rights that are conferred on the competitor by the scheme (other than a right of notification conferred in accordance with this subsection). (6) A drug testing scheme may confer other rights on competitors. (7) A drug testing scheme may allow competitors to waive any of their rights under the scheme.
16 Action by Agency following decision or order on review
(1) For the purposes of this section, a reviewable decision is a decision of the kind mentioned in subsection 15(4). (2) If the Administrative Appeals Tribunal sets aside a reviewable decision, the Agency must, as soon as practicable, remove from the relevant Register any entry that was made as a result of the Agency’s decision. (3) If, after the making of an entry on the relevant Register in relation to a decision of the Agency: (a) the entry is removed from the Register under subsection (2); or (b) an order is made under section 41 of the Administrative Appeals Tribunal Act 1975 staying or otherwise affecting the operation or implementation of the decision, or an order so made is afterwards revoked; the Agency must, as soon as practicable, give written notice of that fact to each person to whom, and each organisation or body to which, notice of the making of the entry was given.
17 Request to provide sample etc.
Manner of making request (1) A drug testing scheme may make provision as to the manner in which a request of the kind mentioned in paragraph 11(2)(c) is to be made. (2) A drug testing scheme may provide that strict compliance with those provisions is not required and substantial compliance is sufficient. (3) A drug testing scheme may provide that, if the Agency has made reasonable efforts to give a competitor an oral request of the kind referred to in paragraph 11(2)(c), but those efforts have not been successful, the Agency may give such a request by way of written notice to the competitor. Note: Section 67A deals with the giving of written notices. Competitor appears likely to fail to comply (4) A drug testing scheme may provide that, if: (a) the Agency has made a request of the kind mentioned in paragraph 11(2)(c) to a competitor; and (b) it appears to the Agency that the competitor is likely to fail to comply with the request; and (c) the Agency thinks that a sporting administration body should be given an opportunity to try to persuade the competitor to comply with the request; the Agency may tell the organisation of the competitor’s likely failure to comply with the request. Retired competitors (5) A drug testing scheme may provide that, if: (a) the Agency has made a request of the kind mentioned in paragraph 11(2)(c) to a competitor; and (b) the competitor claims to have retired from taking part in sporting competition; the Agency may request a sporting administration body to tell the Agency whether the competitor has notified the organisation that he or she has retired from taking part in sporting competition, and, if so, the date of notification.
17A Procedures for dealing with a sample
(1) A drug testing scheme may set out procedures for dealing with a sample. (2) A drug testing scheme may provide that strict compliance with those procedures is not required and substantial compliance is sufficient. (3) Subsection (2) does not apply to procedures relating to the following matters: (a) if samples are tested by accredited laboratories—the accredited laboratories; (b) if samples are tested using particular analytical techniques and equipment—the analytical techniques and equipment; (c) ensuring that a sample is not tampered with; (d) ensuring that a sample is securely contained and identified. (4) The provisions of a drug testing scheme setting out procedures for dealing with a sample may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance. (5) Subsection (4) does not limit subsection 33(3A) of the Acts Interpretation Act 1901.
17B Disclosure of information to sporting administration bodies
(1) A drug testing scheme may require or permit the Agency or the ASDMAC to disclose to one or more specified sporting administration bodies information arising out of the entry of a competitor’s name on the Register of Notifiable Events for the scheme, including information concerning: (a) a failure by the competitor to provide a sample; or (b) a failure by the competitor to complete or sign any form required by that scheme to be completed or signed by the competitor or to do anything in relation to the sample that is required by that scheme to be done; or (c) any provision of a sample by a person who was not the competitor and represented, by pretending to be the competitor, that the sample was provided by the competitor; or (d) any other interference with the provision, collection or testing of the sample; or (e) the results of the testing. (2) A drug testing scheme may permit the Agency to disclose to one or more specified sporting administration bodies information relating to a positive test result returned by a competitor, or a failure by a competitor to comply with request by the Agency to provide a sample, if, at the time of the disclosure: (a) the positive test result or the failure to comply, as the case may be, has not led to the competitor’s name being entered on the Register of Notifiable Events for the scheme; and (b) the information would not enable the identification of the competitor. (3) Sporting administration bodies specified for the purposes of subsection (1) or (2) may differ according to the fields of sporting activities in which competitors compete. (4) Subsection (3) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901. (5) This section does not limit paragraph 11(2)(h) and that paragraph does not limit this section.
17C Conferral of power on the Agency, the ASDMAC etc.
(1) A drug testing scheme may make provision for or in relation to a matter by conferring a power on: (a) the Agency; or (b) the ASDMAC; or (c) an analytical investigative body; or (d) a therapeutic approval body; to make a decision of an administrative character. (2) To avoid doubt, a particular circumstance specified for the purposes of paragraph 11(2)(f) may consist of a decision of a kind referred to in subsection (1) of this section.
17D Removal of name from Register
A drug testing scheme may require or permit the Agency to remove a competitor’s name and particulars from the Register of Notifiable Events for the scheme in specified circumstances.
17E Ancillary or incidental provisions
A drug testing scheme may contain ancillary or incidental provisions.
17F Scheme-making power not limited
Section 13, subsections 15(6) and (7) and sections 17 to 17E (inclusive) do not limit subsection 11(1). However, this rule does not affect the operation of subsection 17A(3).
17G Drug testing orders
(1) A drug testing scheme may empower the Agency to make orders, to be known as drug testing orders for the scheme, with respect to any matter for or in relation to which provision may be made, or is required to be made, by the scheme. (2) The following are examples of matters for which provision may be made by drug testing orders for a particular drug testing scheme: (a) the schedule of drugs and doping methods for the scheme; (b) procedures for dealing with a sample. (3) An order referred to in subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. (4) An order referred to in subsection (1) may make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification, any of the provisions of any other order referred to in that subsection: (a) as in force at a particular time; or (b) as in force from time to time. (5) Section 49A of the Acts Interpretation Act 1901 applies in relation to regulations as if the reference in paragraph (1)(a) of that section to regulations included a reference to an order referred to in subsection (1) of this section. (6) An order referred to in subsection (1) is taken to be an enactment for the purposes of the Administrative Appeals Tribunal Act 1975. (7) The provisions of this Act (other than this section) apply to an order referred to in subsection (1) in a corresponding way to the way in which they apply to a drug testing scheme. In particular, this Act (other than this section) has effect as if anything set out in drug testing orders for a drug testing scheme were set out in the drug testing scheme. (8) To avoid doubt, subsection (4) does not limit the application of subsection 11(5) to drug testing orders.
17H Multiple-purpose testing of samples
If a competitor provides a sample when requested to do so by the Agency under a drug testing scheme, then, in addition to any testing under the scheme or for research purposes, the sample may be tested for the purposes of: (a) a contract entered into by the Agency for the provision of drug testing services; or (b) a contract entered into by the Agency for the provision of safety checking services; or both.
17J This Part does not limit other powers
This Part does not limit: (a) the Agency’s power to enter into contracts for the provision of drug testing services or safety checking services; or (b) the powers conferred by Part 3A or 3B. 50 Heading to Part 3A Repeal the heading, substitute:
Part 3A—Testing on behalf of a foreign sporting organisation or under an anti-doping arrangement
51 Heading to Division 1 of Part 3A Repeal the heading. 52 Section 17X Repeal the section. 53 Section 17Y Repeal the section, substitute:
17Y Request at instance of foreign sporting organisation or under anti-doping arrangement
If the Agency: (a) has been asked by a foreign sporting organisation to request a competitor to provide a sample for testing; or (b) is required or permitted under an anti-doping arrangement to request a competitor to provide a sample for testing; the Agency may request the competitor to provide a sample for testing. 54 Paragraph 17Z(b) Repeal the paragraph, substitute: (b) if paragraph 17Y(b) applies—the procedures agreed to between the Agency and the organisation that asked the Agency to make the request. 55 Subsection 17ZA(1) Omit “the relevant foreign sporting organisation of any matter arising out of the making of the request to the competitor”, substitute “a sporting administration body of any matter arising out of the making of a request under section 17Y to a competitor”. 56 Subsections 17ZA(2) and (3) Repeal the subsections. 57 Heading to Division 2 of Part 3A Repeal the heading. 58 Section 17ZB Repeal the section, substitute:
17ZB This Part does not limit other powers
This Part does not limit: (a) the Agency’s power to enter into contracts for the provision of drug testing services or safety checking services; or (b) the powers conferred by Part 3; or (c) the powers conferred on the Agency by a drug testing scheme.
Part 3B—Testing by other sporting administration bodies
17ZC Testing by other sporting administration bodies
(1) The Agency may ask a sporting administration body to arrange for: (a) a person who competes in a particular field of sporting activity to be requested to provide a sample in order to determine whether the person has been using scheduled drugs or doping methods; and (b) the testing of the sample for that purpose; and (c) the Agency to be given information arising out of the making of such a request, including information concerning: (i) an evasion, or an attempted evasion, by the person, of a request to provide a sample; or (ii) the aiding, abetting, counselling or procuring of such an evasion, or attempted evasion, by the person; or (iii) any failure by the person to provide such a sample; or (iv) any interference with the provision, collection or testing of the sample; or (v) the results of the testing. (2) A drug testing scheme may: (a) authorise the Agency to enter the name of, and particulars relating to, a competitor on the Register of Notifiable Events for that scheme if the competitor fails, without reasonable cause, to comply with a request referred to in paragraph (1)(a); and (b) authorise the Agency to enter the name of, and particulars relating to, a competitor on that Register in specified circumstances, being circumstances that consist of, or include, the circumstance that the competitor has returned a positive test result in relation to such a sample. (3) Subsection (2) does not limit subsection 11(1). (4) To avoid doubt, a particular circumstance specified for the purposes of paragraph (2)(b) may consist of a decision of a kind referred to in subsection 17C(1). (5) To avoid doubt, subsections 15(3) and (4) apply in relation to the making of an entry referred to in subsection (2) of this section. This subsection does not, by implication, limit the application of other relevant provisions of Part 3. (6) Circumstances specified for the purposes of paragraph (2)(b) may differ according to: (a) the fields of sporting activities in which competitors compete; and (b) the drugs or doping methods revealed by positive test results. (7) Subsection (6) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901. (8) To avoid doubt, this section applies both within and outside Australia. (9) In this section: positive test result has the same meaning as in section 14.
17ZD This Part does not limit other powers
This Part does not limit: (a) the Agency’s power to enter into contracts for the provision of drug testing services or safety checking services; or (b) the powers conferred by Part 3; or (c) the powers conferred on the Agency by a drug testing scheme. 59 Before section 18 Insert:
Part 3C—Minister may request notification
60 Subsections 18(1) and (2) Omit “the Register”, substitute “a Register”. 61 At the end of subsection 18(2A) Add “under a drug testing scheme”. 62 After subsection 18(2A) Insert: (2AA) For the purposes of the application of subsection (2A) to a particular drug testing scheme, a negative test result, in relation to a competitor, is a finding, made: (a) by an accredited laboratory; or (b) using analytical techniques and equipment specified in the scheme; by means of testing a sample provided by the competitor, that is not a positive test result (within the meaning of section 14). 63 Paragraph 18(2B)(a) Omit “Part 3”, substitute “a drug testing scheme”. 64 Subsection 28(4) Omit “have an interest in a matter if”, substitute “have an interest in a matter if, and only if”. 65 Paragraph 28(4)(a) Omit “direct or indirect pecuniary interest”, substitute “material personal interest”. 66 At the end of section 28 Add: (5) For the purposes of subsection (4), if: (a) the Agency has entered into: (i) a contract for the provision of drug testing services; or (ii) a contract for the provision of safety checking services; and (b) under the contract, the Agency has given, or could give, a request to a person to provide a sample; the person is taken to be a competitor. 67 Before subsection 36(1) Insert: (1A) The Minister may terminate a member’s appointment if the Minister is of the opinion that the member’s performance has been unsatisfactory. (1B) The Minister may terminate the appointments of all of the members if the Minister is of the opinion that the Agency’s performance has been unsatisfactory. 68 Subsection 47(4) Repeal the subsection. 69 Subsection 50(2) Repeal the subsection. 70 At the end of subsection 57(1) Add “or to the ASDMAC”. 71 Paragraph 60(1)(b) After “under this Act”, insert “(including remuneration and allowances payable to ASDMAC members)”. 72 Paragraph 62(1)(a) Repeal the paragraph, substitute: (a) enter into a contract involving the payment by the Agency of an amount exceeding $200,000 or, if a higher amount is specified in the regulations, that higher amount; or 73 Paragraph 63(2)(b) Repeal the paragraph. 74 At the end of subsection 63(3) Add: (d) the results of research undertaken by, or supported by, the Agency. 75 After Part 7 Insert:
Part 7A—Australian Sports Drug Medical Advisory Committee (ASDMAC)
65B Establishment of ASDMAC
(1) There is to be an Australian Sports Drug Medical Advisory Committee, which is to consist of the following members: (a) a Chairman; (b) not more than 6, but not fewer than 3, other members. (2) A person is not to be appointed as an ASDMAC member unless: (a) the person is a registered medical practitioner; and (b) it appears to the Minister that the person has knowledge of, or experience in, one or more of the following fields: (i) sports medicine; (ii) clinical pharmacology; (iii) endocrinology; (iv) a prescribed field.
65C Functions of ASDMAC
(1) The functions of the ASDMAC are as follows: (a) such functions as are conferred on the ASDMAC under a drug testing scheme; (b) to give advice and information to the Agency and the Commission about: (i) the performance of the ASDMAC’s functions; and (ii) other matters relating to the use of drugs in sport or the safety of participants in sporting competitions; (c) to give advice and information to sporting administration bodies about individual cases that involve: (i) the use of drugs in sport; or (ii) any other matter arising out of the provision of drug testing services; or (iii) any matter arising out of the provision of safety checking services; (d) if: (i) the Agency enters into a contract for the provision of services, information or advice; and (ii) the contract specifies that some or all of those services, some or all of that information, or some or all of that advice, as the case may be, is to be provided by the ASDMAC on behalf of the Agency; to provide the services, information or advice concerned. Note: For disclosure of information about a person to the person, see subsection 67(4C). (2) The following are examples of functions that may be conferred on the ASDMAC under a drug testing scheme: (a) conducting investigations relating to positive test results (see paragraph 13(1)(a)); (b) approving the use of scheduled drugs for therapeutic purposes (see paragraph 13(1)(b)); (c) disclosing, to sporting administration bodies, information arising out of the entry of competitors’ names on the Register of Notifiable Events for the scheme (see section 17B). (3) Subsection 9(6) applies to the functions of the ASDMAC in a corresponding way to the way in which it applies to the functions of the Agency.
65D Appointment of ASDMAC members
(1) The ASDMAC members are to be appointed by the Minister by written instrument. (2) An ASDMAC member is to be appointed for the period specified in the instrument of appointment. The period must not exceed 5 years. (3) An ASDMAC member holds office on a part-time basis. (4) The performance of the functions of the ASDMAC is not affected only because of there being a vacancy or vacancies in the membership of the ASDMAC.
65E Procedures
(1) The regulations may prescribe: (a) the manner in which the ASDMAC is to perform its functions; and (b) the procedure to be followed at or in relation to meetings of the ASDMAC, including matters with respect to the following: (i) the convening of meetings of the ASDMAC; (ii) the number of ASDMAC members who are to constitute a quorum; (iii) the selection of an ASDMAC member to preside at meetings of the ASDMAC in the absence of the ASDMAC Chairman; and (iv) the manner in which questions arising at a meeting of the ASDMAC are to be decided. (2) A resolution is taken to have been passed at a meeting of the ASDMAC if: (a) without meeting, a majority of ASDMAC members indicate agreement with the resolution in accordance with the method determined by the ASDMAC under subsection (3); and (b) all ASDMAC members were informed of the proposed resolution, or reasonable efforts had been made to inform all ASDMAC members of the proposed resolution. (3) Subsection (2) applies only if the ASDMAC: (a) determines that it applies; and (b) determines the method by which ASDMAC members are to indicate agreement with resolutions.
65F Disclosure of interests
(1) An ASDMAC member who has an interest in a matter being considered by the ASDMAC must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the ASDMAC. (2) The disclosure is to be recorded in the minutes of the meeting and unless the Minister or the ASDMAC otherwise determines, the ASDMAC member must not: (a) be present during any deliberation by the ASDMAC about that matter; or (b) take part in any decision of the ASDMAC relating to that matter. (3) For the purposes of the making of a determination by the ASDMAC under subsection (2) in relation to an ASDMAC member who has made a disclosure under subsection (1), an ASDMAC member who has an interest in the matter to which the disclosure relates must not: (a) be present during any deliberation of the ASDMAC for the purposes of making the determination; or (b) take part in the making by the ASDMAC of the determination. (4) For the purposes of this section, an ASDMAC member is taken to have an interest in a matter if, and only if: (a) the member has a material personal interest in the matter; or (b) the matter concerns a particular sport and the member participates in, or is involved in any way in the administration of, that sport; or (c) the matter concerns a particular sporting organisation and the member is a member of, or is involved in any way in the administration of, that organisation; or (d) the matter concerns a particular sporting event or sporting venue and the member is involved in any way in the administration of that event or venue; or (e) the matter concerns a particular competitor and the member is related to, or has some involvement in the affairs of, that competitor. (5) For the purposes of subsection (4), if: (a) the Agency has entered into: (i) a contract for the provision of drug testing services; or (ii) a contract for the provision of safety checking services; and (b) under the contract, the Agency has given, or could give, a request to a person to provide a sample; the person is taken to be a competitor.
65G ASDMAC member to remain at arm’s length from decisions of sporting administration bodies
An ASDMAC member must not take part in any decision of a sporting administration body relating to a matter if the member has: (a) been present during any deliberation of the ASDMAC in relation to the matter; or (b) taken part in any decision of the ASDMAC in relation to the matter.
65H Remuneration and allowances
(1) An ASDMAC member is to be paid such remuneration as is determined by the Remuneration Tribunal. (2) If no determination of that remuneration is in operation, an ASDMAC member is to be paid such remuneration as is prescribed. (3) An ASDMAC member is to be paid such allowances as are prescribed. (4) This section has effect subject to the Remuneration Tribunal Act 1973.
65J Leave of absence
The Minister or the ASDMAC Chairman may grant leave to an ASDMAC member to be absent from a meeting or meetings of the ASDMAC.
65K Resignation
An ASDMAC member may resign by writing signed by the member and sent to the Minister.
65L Termination of appointment
(1) The Minister must terminate the appointment of an ASDMAC member if the member ceases to be a registered medical practitioner. (2) The Minister may terminate an ASDMAC member’s appointment if the Minister is of the opinion that the member’s performance has been unsatisfactory. (3) The Minister may terminate the appointments of all of the ASDMAC members if the Minister is of the opinion that the ASDMAC’s performance has been unsatisfactory. (4) The Minister may terminate the appointment of an ASDMAC member because of misbehaviour or physical or mental incapacity. (5) If: (a) an ASDMAC member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or (b) an ASDMAC member is absent, except on leave of absence, from 3 consecutive meetings of the ASDMAC; or (c) an ASDMAC member fails, without reasonable excuse, to comply with section 65F; or (d) an ASDMAC member fails to comply with section 65G; or (e) an ASDMAC member commits an offence against section 67; the Minister may terminate the appointment of the member.
65M Other terms and conditions
An ASDMAC member holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Minister.
65N Agency assistance to ASDMAC
The Agency may make available to the ASDMAC resources and facilities (including secretariat services and clerical assistance) for the purposes of enabling the ASDMAC to perform its functions.
65P Delegation by ASDMAC
(1) The ASDMAC may, by resolution, delegate to an ASDMAC member all or any of its powers under this Act. (2) A delegation of a power under this section: (a) may be revoked by resolution of the ASDMAC (whether or not constituted by the persons constituting the ASDMAC at the time when the power was delegated); and (b) continues in force notwithstanding a change in the membership of the ASDMAC. (3) Section 34A of the Acts Interpretation Act 1901 applies in relation to a delegation under this section as if the ASDMAC were a person. (4) A certificate signed by the ASDMAC Chairman stating any matter with respect to a delegation of a power under this section is prima facie evidence of that matter. (5) A document purporting to be a certificate mentioned in subsection (4) is, unless the contrary is established, taken to be such a certificate and to have been duly given. (6) A delegate under this section is, in the exercise of a power delegated under this section, subject to any directions given by the ASDMAC. (7) In this section: this Act includes a drug testing scheme. 76 Section 66 Repeal the section, substitute:
66 Accredited laboratories
(1) A reference in this Act to an accredited laboratory is a reference to: (a) a laboratory that the International Olympic Committee recognises as an accredited laboratory for the purpose of testing for the use of drugs in sport; or (b) a laboratory that is recognised by a prescribed organisation as complying with: (i) the International Standards Organisation’s general requirements for the competence of calibration and testing laboratories; or (ii) the requirements set out in a prescribed document. (2) An accredited laboratory may be situated either within or outside Australia. 77 Sections 66C and 66D Repeal the sections. 78 After paragraph 67(1)(d) Insert: (da) an ASDMAC member; or (db) an ASDMAC consultant; or 79 After subsection 67(3) Insert: (3A) The following is an example of a disclosure or communication that would be covered by paragraph (3)(b): (a) the Agency enters into a contract with a sporting administration body for the provision of drug testing services; and (b) the contract makes provision for: (i) the Agency to request samples from the members of a particular team; and (ii) the testing of the samples; and (iii) the notification of the results of the testing; and (c) in accordance with the contract, an employee of the Agency notifies the results of the testing to the sporting administration body. 80 Subsection 67(4) Omit “except where it is necessary to do so for the purposes of carrying into effect the provisions of this Act”, substitute: except: (c) where it is necessary to do so for the purposes of carrying into effect the provisions of this Act; or (d) for the purposes of a criminal proceeding. 81 Subsection 67(4A) Omit “Nothing in this section”, substitute “Despite subsection (3)”. 82 Paragraph 67(4A)(a) Omit “prevents the Agency or an accredited laboratory from disclosing or communicating”, substitute “the Agency or an accredited laboratory may disclose or communicate”. 83 Paragraph 67(4A)(a) Omit “competitor”, substitute “person”. 84 Paragraphs 67(4A)(b) and (c) Omit “prevents the Australian Sports Drug Testing Laboratory from notifying”, substitute “the Australian Sports Drug Testing Laboratory may notify”. 85 After subsection 67(4A) Insert: (4B) Despite subsection (3), the Agency may disclose or communicate to a sporting administration body information about either of the following matters: (a) an evasion, or an attempted evasion, of a request by the Agency to provide a sample; (b) the aiding, abetting, counselling or procuring of such an evasion or attempted evasion. Note: For examples of situations in which the Agency may request a person to provide a sample, see subsection 4(1). (4C) Despite subsection (3), the Agency, an ASDMAC member or an ASDMAC consultant may: (a) disclose or communicate to a person information relating to the person; or (b) with the consent of a person (the first person), disclose or communicate to another person information relating to the first person. Note: For examples of situations in which the Agency may request a person to provide a sample, see subsection 4(1). (4D) Despite subsection (3), the Agency may disclose or communicate to a sporting administration body information that: (a) was given to the Agency by another sporting administration body; and (b) is relevant to the use of drugs in sport or the safety of participants in sporting competitions. (4E) Despite subsection (3): (a) the Agency may disclose or communicate to an ASDMAC member or an ASDMAC consultant information that is relevant to the use of drugs in sport or the safety of participants in sporting competitions; or (b) an ASDMAC member or an ASDMAC consultant may disclose or communicate to the Agency information that is relevant to the use of drugs in sport or the safety of participants in sporting competitions. (4F) Despite subsection (3): (a) the Agency may disclose or communicate to an accredited laboratory information that is relevant to the carrying on by the laboratory of research relating to the use of drugs in sport or the safety of participants in sporting competitions; or (b) an employee of an accredited laboratory may disclose or communicate to the Agency information that is relevant to the carrying on by the laboratory of research relating to the use of drugs in sport or the safety of participants in sporting competitions. (4G) Despite subsection (3), the Agency may disclose to a sporting administration body information that consists of the results of research undertaken by, or supported by, the Agency, so long as the identity of a person whose sample has been tested is not revealed. 86 Subsection 67(5) Insert: ASDMAC consultant means a consultant to the ASDMAC. 87 Subsection 67(5) Insert: criminal proceeding includes a proceeding to determine whether a person should be tried for an offence. 88 Subsection 67(5) Insert: this Act includes a drug testing scheme. 89 After section 67 Insert:
67AA Access to, and use of, customs information
(1) For the purposes of section 16 of the Customs Administration Act 1985: (a) if information held by the Australian Customs Service relates to the importation into Australia, or the attempted importation into Australia, of a scheduled drug, and any of the following conditions is satisfied: (i) the importation or attempted importation contravenes a law of the Commonwealth; (ii) there are reasonable grounds to suspect that a competitor is responsible for the importation or attempted importation; (iii) there are reasonable grounds to suspect that the drug is for use by one or more competitors; the information is taken to be information that will be used by the Agency for the purposes of the Agency’s functions; and (b) the purpose of the Agency deciding who to request to provide a sample is taken to be a permissible purpose referred to in a paragraph of subsection (9) of that section; and (c) the disclosure of the information, under that section, to the Chairperson, or to a person acting on the Agency’s behalf: (i) is taken to be necessary for that permissible purpose; and (ii) is taken to comply with subsection (10) of that section. (2) The Agency, in deciding who to request to provide a sample, may have regard to any information given to the Chairperson, or to a person acting on the Agency’s behalf, under section 16 of the Customs Administration Act 1985. Note: For examples of situations in which the Agency may request a person to provide a sample, see subsection 4(1). (3) Subsection (2) does not limit the matters to which the Agency may have regard. (4) In this section: information includes a class of information. scheduled drug means a drug included in a schedule set out in a drug testing scheme. 90 Section 67A After “by the Agency”, insert “or the ASDMAC”. 91 Section 67A Omit “sporting organisation” (first occurring), substitute “sporting administration body”. 92 Section 67A Omit “or the regulations”, substitute “, the regulations or an order referred to in subsection 17G(1)”. 93 Paragraph 67A(b) Omit “organisation” (wherever occurring), substitute “sporting administration body”. 94 Paragraph 67B(a) Omit “competitor”, substitute “person”. 95 Subparagraph 67B(b)(i) Omit “competitor” (wherever occurring), substitute “first-mentioned person”. 96 Section 67B Omit “the relevant national sporting organisation”, substitute “a sporting administration body, being a body that is connected with a field of sporting activity in which the first-mentioned person participates,”. 97 At the end of section 67B Add: Note: For examples of situations in which the Agency may request a person to provide a sample, see subsection 4(1). 98 After section 67B Insert:
67C Disclosure to government or government agency providing support
Entry on Register (1) If: (a) to the knowledge of the Agency, a competitor receives support from a government or a government agency; and (b) the competitor’s name and particulars are entered on a Register; the Agency: (c) must give written notice of the entry to the government or government agency; and (d) may disclose to the government or government agency information arising out of the entry, including information concerning: (i) any failure by the competitor to provide a sample; or (ii) any interference with the provision, collection or testing of the sample; or (iii) the results of the testing of the sample. Testing under contract (2) If: (a) to the knowledge of the Agency, a person receives support from a government or a government agency; and (b) the Agency requests the person to provide a sample under: (i) a contract entered into by the Agency for the provision of drug testing services; or (ii) a contract entered into by the Agency for the provision of safety checking services; the Agency may disclose to the government or government agency information arising out of the request, including information concerning: (c) any failure by the person to provide such a sample; or (d) any interference with the provision, collection or testing of the sample; or (e) the results of the testing of the sample. Definitions (3) In this section: government means the Commonwealth, a State or a Territory. government agency means the Commission or any sports academy, sports institute, or other similar body, of a State or Territory. 99 At the end of section 70 Add: (3) In this section: this Act includes a drug testing scheme, but does not include a provision of a drug testing scheme that empowers the Agency to make orders referred to in subsection 17G(1). 100 At the end of section 72 Add: (2) An ASDMAC member is not liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith in the performance or purported performance of any function, or in the exercise or purported exercise of any power, of the ASDMAC. 101 Transitional—pre-commencement requests Despite the amendments and repeals of the Australian Sports Drug Agency Act 1990 made by this Schedule, paragraph 2A(1)(j), Part 3 and section 18 of that Act continue to apply, after the commencement of this item, in relation to: (a) a request to provide a sample that was made before the commencement of this item; or (b) any matter arising out of, or connected with, such a request (including the entry of a person’s name on the Register); as if those amendments and repeals had not happened. 102 Application of amendments—sections 47 and 50 of the Australian Sports Drug Agency Act 1990 The amendments of sections 47 and 50 of the Australian Sports Drug Agency Act 1990 made by this Schedule apply in relation to plans approved by the Minister after the commencement of this item.
[Minister’s second reading speech made in— House of Representatives on 3 December 1998 Senate on 8 March 1999] (200/98)
