Sweeping new powers to investigate the use of drugs amongst athletes have been proposed in amendments to the Australian Sports Anti-Doping Authority Act. The Senate Committee considering the amendments received a range of submissions expressing grave concerns about the proposed coercive powers to compel cooperation with ASADA’s investigations by issuing disclosure notices. A person served with a notice cannot claim the right against self-incrimination and is subject to a penalty of $5,100 for failing to comply. A person who receives several notices and fails to comply may be subject to multiple penalties. Although the information obtained under a notice cannot be used in criminal proceedings, it can be used in civil proceedings under the ASADA Act. In addition, if a person claims that he or she does not have the information sought by ASADA, that person bears an “evidential burden” to show its non-possession, reversing the usual burden of proof. Concerns were also raised about the possible infringement of lawyer-client and doctor-patient privilege.
These sweeping powers are necessary apparently “to protect the integrity of Australian sport”. Yet, apart from the recent headlines declaring there a doping crisis amongst athletes, no real evidence of such a disaster or problems with the current testing and regulatory regime has been presented. In fact, the federal department responsible for sport, together with the Australian Olympic Committee, told the Committee that Australia has one of the most advanced anti-doping arrangements in the world.
Reporting on the amendments on 12 March 2013, the majority of the Senate Committee recommended that given the potential for serious consequences for athletes and others, the Government consider additional transparency options in issuing disclosure notice and a requirement that ASADA report annually to Parliament, but that otherwise the amendments be passed. Its report can be found on the Senate Committee’s website.
RoLIA deplores the proposed amendments that that infringe fundamental rule of law principles, namely the right to remain silent without being incriminated, the presumption of innocence and greater coercive powers being given to the executive government without justification or transparent safeguards against their misuse.
The majority of athletes are not wealthy super-stars but hard working amateurs with few financial resources to whom their reputation is all. An ASADA penalty could destroy their livelihood and their well-being. They deserve the protections of the rule of law.
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