Blog: Strengthening ASADA’s anti-doping capabilities

2 August 2013

Changes to the ASADA Act will strengthen Australia’s anti-doping efforts. It will better protect the majority of Australian athletes and support personnel who are doing the right thing.

Around the world doping offences have traditionally been detected through the testing of blood and urine samples to identify the presence of a banned substance. However, well organised and systemic doping programs can operate without detection by existing testing regimes. With doping becoming increasingly sophisticated, it is less likely that anti-doping rule violations will be detected through testing alone.

In 2006, Australia was the first country to introduce intelligence and investigations into an anti-doping detection program. Only through the application of investigative techniques and intelligence gathering, combined with an effective drug testing program, can ASADA effectively identify those athletes and support personnel who are involved in sophisticated doping practices.

In January 2013, the Hon James Wood QC AO handed the Australian Government his findings and recommendations following a review of Cycling Australia. The review was conducted in the wake of revelations of widespread and systematic doping violations in professional road cycling.

In the review Mr Wood recommended the need to strengthen ASADA’s capabilities. In particular, he recommended that the ASADA Act and other relevant legislation be amended to give ASADA a power, subject to appropriate protections, to compel persons to attend an interview and to produce information and documents relevant to any inquiry that it is conducting.

On the back of Mr Wood’s review amendments have been made to the ASADA Act. The main changes to the ASADA Act include:

ASADA CEO powers
The legislative changes enhance ASADA’s investigations and intelligence gathering capacity. When necessary the ASADA Chief Executive Officer (CEO) will be able to require someone to assist with an investigation by issuing a notice (to be known as a disclosure notice). This notice can require a person to do one, or more of the following:

  • attend an interview to answer questions;
  • give information; and/or
  • produce documents or things (a legal term meaning pretty much any thing).

The ASADA CEO can only issue a disclosure notice if they reasonably believe the person has information, documents or things that may be relevant to the administration of the National Anti-Doping (NAD) scheme.

Role of the Anti-Doping Rule Violations Panel (ADRVP)
The ASADA CEO does not have unfettered authority to issue a disclosure notice. A disclosure notice may only be issued if three members of the ADRVP agree in writing that the belief of the CEO is reasonable.

Disclosure notice
Aspects related to the issuing of the disclosure notice are specified in the legislation. This includes the format and content of the disclosure notice; conduct of interviews; retaining and making copies of documents and the use of information gathered from the disclosure notice. The amended legislation will also require ASADA to inform the person of their rights and the possible consequences for failing to comply with a disclosure notice. These rights include permitting an interviewee to have someone accompany them to the interview and not being required to answer questions that may incriminate, or expose the person to a penalty.

ASADA will only issue a disclosure notice when it is necessary to compel a person to assist with an investigation. This will usually be as a last resort.

Civil penalties and infringement notice
The changes to the Act now provides for civil penalties (up to $5,100 per day) to be determined by a court for failing to comply with a disclosure notice. The infringement notice may be offered to a person who is alleged to have contravened a civil penalty provision under the Act, as an alternative to the matter being determined before a court.

Final decision maker
The national sporting organisation still remains the final decision maker on whether an anti-doping rule violation has occurred and, if so, what sanction should be applied. There needs to be sufficient evidence to demonstrate that the person has committed a violation, in accordance with the levels of proof specified in the World Anti-Doping Code.

Links to ASADA’s legislation is available on the ASADA website.