Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2004 - 2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY (CONSEQUENTIAL AND TRANSITIONAL
PROVISIONS) BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator the Hon. Rod Kemp, Minister for the
Arts and Sport)
AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY (CONSEQUENTIAL AND TRANSITIONAL
PROVISIONS) BILL 2005
OUTLINE
The Australian Sports Anti-Doping Authority (Consequential and Transitional
Provisions) Bill 2005 ('the Bill') contains transitional provisions and
consequential amendments related to the establishment of the Australian
Sports Anti-Doping Authority ('the ASADA") by the Australian Sports Anti-
Doping Authority Bill 2005 ('the ASADA Bill').
The Bill deals with the consequences of the proposed ASADA which is to be
established by virtue of a change in name to the existing Australian Sports
Drug Agency (ASDA), established by section 6 of the Australian Sports Drug
Agency Act 1990. Among other things, the Bill contains provisions dealing
with the vesting of assets and liabilities of the ASDA in the Commonwealth
(since the ASADA would be a prescribed Agency under the Financial
Management and Accountability Act 1997 (FMA Act) and would not hold money
or other property in its own name). The Bill also provides for the
continuing operation of ASDA instruments after the commencement of the
Bill.
As a result of the ASADA Bill, Schedule 1 to the Bill makes a number of
consequential amendments to other Commonwealth Acts. Among other things,
these amendments provide for the repeal of the Australian Sports Drug
Agency Act 1990 and provisions in the Australian Sports Commission Act 1989
relating to the ASC's functions and the disclosure of information by the
Australian Sports Commission (the ASC) to ASADA. It also change references
in Commonwealth legislation to the ASDA to the ASADA.
Schedule 2 to the Bill contains transitional provisions, including
provisions dealing with the vesting of assets and liabilities of the ASDA
in the Commonwealth in recognition of the fact that the ASADA would be a
prescribed agency for the purposes of the FMA Act, and provisions for the
continuing operation of ASDA instruments after the commencement of the
Bill. Schedule 2 also contains provisions transferring money appropriated
to ASDA to ASADA and for the termination of ASDA members. In addition,
Schedule 2 contains provisions relating to the continued application of the
ASDA Act, the disclosure of certain protected information by the ASC to
ASADA and annual reports.
FINANCIAL IMPACT STATEMENT
The Australian Sports Anti-Doping Authority (Consequential and Transitional
Provisions) Bill 2005 is not expected to have a significant impact on
Commonwealth expenditure. The Bill provides for all of the assets and
liabilities of the ASDA to vest in the Commonwealth with effect from the
date on which the ASADA is established.
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
ASADA Australian Sports Anti-Doping Authority
ASADA Bill Australian Sports Anti-Doping Authority Bill 2005
ASC Australian Sports Commission
ASC Act Australian Sports Commission Act 1989
ASDA Australian Sports Drug Agency
ASDA Act Australian Sports Drug Agency Act 1990
ASDA Regulations Australian Sports Drug Agency Regulations 1999
ASDA Orders Australian Sports Drug Agency Drug Testing (Scheme A)
Orders 1999 and the Australian Sports Drug Agency
Drug Testing (Scheme B) Orders 2000
ASDMAC Australian Sports Drug Medical Advisory Committee
Bill Australian Sports Anti-Doping Authority (Consequential and
Transitional Provisions) Bill 2005
FMA Act Financial Management and Accountability Act 1997
Minister Minister for the Arts and Sport
NAD scheme National Anti-Doping Scheme
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides that the Bill, when enacted, may be cited as the
Australian Sports Anti-Doping Authority (Consequential and Transitional
Provisions) Act 2005.
Clause 2 - Commencement
Clause 2 provides that each provision of the Bill specified in column 1 of
the table commences, or is taken to have commenced, in accordance with
column 2 of the table. Any other statement in column 2 has effect
according to its terms.
Item 1 of the table provides that clauses 1 to 3 of the Bill (containing
the short title, the commencement provision and the provision explaining
the operation of the Schedules to the Bill) would commence on the day on
which the Bill receives the Royal Assent.
Item 2 of the table provides that Schedules 1 and 2 to the Bill, containing
various transitional provisions and consequential amendments to
Commonwealth legislation, would commence at the same time that clause 20 of
the ASADA Bill commences. Clause 20 of the ASADA Bill, which establishes
the ASADA, would commence on a day to be fixed by proclamation or within 6
months beginning on the day the Act receives the Royal Assent, if clause 6
has not commenced by proclamation (item 2 of the table in clause 2 of the
ASADA Bill).
Clause 3 - Schedule(s)
Subclause 3(1) provides that each Act, and each set of regulations, that is
specified in a Schedule to the Bill is amended or repealed as set out in
that Schedule and that any other item in a Schedule has effect according to
its terms. Subclause 3(2) provides that the amendment of any regulations
under subclause 3(1) does not prevent the regulations, as so amended, from
being amended or repealed by the Governor-General.
Schedule 1 to the Bill provides for the repeal of the ASDA Act and
provisions in the ASC Act, Age Discrimination Act 2004 and the
Administrative Decisions (Judicial Review) Act 1977. It also inserts
provisions in the ASC Act dealing with a function of the ASC and disclosure
of information by the ASC to the ASADA. It also inserts a reference to the
National Anti-Doping scheme of the ASADA into Schedule 1 of the Age
Discrimination Act 2004. Schedule 1 to the Bill also changes references in
Commonwealth legislation from the ASDA to the ASADA. In addition, Schedule
1 to the Bill amends the Financial Management and Accountability
Regulations 1997 to provide that the ASADA is a prescribed agency for the
purposes of the Financial Management and Accountability Act 1997.
Schedule 2 to the Bill contains transitional provisions. Part 1 of
Schedule 2 to the Bill contains the definitions for the Schedule. Part 2
of Schedule 2 to the Bill provides for the vesting of assets and
liabilities of the ASDA in the Commonwealth. It also provides for the
substitution of the Commonwealth as a party to any proceedings to which
ASDA is a party.
Part 3 of Schedule 2 to the Bill provides for the continuing operation of
ASDA instruments after the commencement of the Bill. It also provides for
the transfer to ASADA of money appropriated to ASDA. In addition, Part 3 of
Schedule 2 to the Bill provides that, for contracts entered into by ASDA to
provide services, or contracts entered into by ASDA for the ASDMAC to
provide services, the functions of the ASADA and ASDMAC include the
provision of those services on behalf of the Commonwealth.
Part 4 of Schedule 2 to the Bill is in relation to the appointment of
office holders. It contains provisions ceasing the appointment of the ASDA
members and the appointments of the ASDMAC members and Chair. It also
contains provisions to automatically re-appoint the ASDMAC members and
Chair.
Part 5 of Schedule 2 to the Bill provides for the continued application of
the ASDA Act, modifications to the ASDA Act, modifications to the ASDA
Regulations, modifications to the ASDA Orders, and transitional functions
for the ASADA in relation to ASDA and for ASDMAC.
Part 6 of Schedule 2 to the Bill provides for the disclosure of certain
information by the ASC to ASADA and for the continued application of Part
VIIA of the ASC Act despite its repeal.
Part 7 of Schedule 2 to the Bill provides for the first annual report for
ASADA and the final annual report for ASDA.
Part 8 of Schedule 2 to the Bill makes miscellaneous provisions including
for the exemption from stamp duty, acquisition of property on just terms
and the power for the Governor-General to make regulations prescribing
matters required or permitted by the Schedule or necessary or convenient
for carrying out or giving effect to the Schedule.
Schedule 1 - Consequential Amendments
Schedule 1 to the Bill provides for the repeal of the ASDA Act and
provisions in the ASC Act, Age Discrimination Act 2004 and the
Administrative Decisions (Judicial Review) Act 1977. It also inserts
provisions in the ASC Act dealing with a function of the ASC and disclosure
of information by the ASC to the ASADA. In addition, Schedule 1 inserts a
reference to the National Anti-Doping scheme of the ASADA to Schedule 1 of
the Age Discrimination Act 2004. Schedule 1 to the Bill also changes
references to the ASDA in Commonwealth legislation to references to the
ASADA. In addition, Schedule 1 to the Bill amends the Financial Management
and Accountability Regulations 1997 to provide that the ASADA is a
prescribed agency for the purposes of the FMA Act.
Administrative Decisions (Judicial Review) Act 1977
Item 1 - Paragraph 2(b) of Schedule 3
Item 1 repeals paragraph 2(b) of Schedule 3 as this would be redundant upon
the commencement of the ASADA Bill.
Age Discrimination Act 2004
Item 2 - Schedule 1 (table item 14)
Item 2 repeals the item in Schedule 1 (table item 14) as it would be
redundant upon the commencement of the ASADA Bill.
Item 3 - Schedule 1 (after table item 32)
Item 3 inserts a reference to the National Anti-Doping Scheme, which is a
scheme under the proposed ASADA Bill, and which replaces the reference to
be repealed by Item 2 above.
Australian Sports Commission Act 1989
Item 4 - After subsection 7(4)
Item 4 is a consequential amendment to modify the ASC's functions. It
inserts new subclause 7(4A). The amendment is necessary because the ASADA,
on its establishment, would have the major responsibility in Australia for
anti-doping policy development and monitoring of compliance by sporting
bodies with the World Anti-Doping Code. It is intended that the ASADA
would be Australia's designated National Anti-Doping Organisation (NADO)
for the purposes of the World Anti-Doping Code. It would be one of ASADA's
roles to cooperate with other relevant national and international
organisations in promoting a drug free sporting environment and Code-
compliant policies and practices. It is not intended that this amendment
have any effect on the ASC's ability to manage AIS athletes, athletes that
it funds, its facilities or its ability to carry out its other functions
under the ASC Act.
Item 5 - Part VIIA
Item 5 repeals Part VIIA because the ASADA, on its establishment, would
have the major responsibility in Australia for anti-doping investigations
and would therefore be the body that should receive any information from
the Australian Customs Service pursuant to the Customs Administration Act
1985.
Item 6 - After section 57
Item 6 inserts new clause 57A in relation to disclosure of information to
the ASADA. Because the ASADA, on its establishment, would investigate all
allegations of anti-doping rule violations under the World Anti-Doping
Code, the ASC would require the ability to disclose information, including
personal information, to the ASADA relating to:
a) sports drug and safety matters; or
b) the performance of the functions of the ASADA.
New clause 57A(2) would provide that any personal information so disclosed
would be taken to be NAD scheme personal information for the purposes of
the ASADA Act. This provision would mean that such information would be
subject to the provisions of the ASADA Bill in relation to the further
protection of that information.
Australian Sports Drug Agency Act 1990
Item 7 - The whole of the Act
This item repeals the Australian Sports Drug Agency Act 1990 as it would be
redundant upon the commencement of the ASADA Bill (subject to certain
transitional matters, see Part 5 of Schedule 2 to the Bill).
Financial Management and Accountability Regulations 1997
Item 8 - Part 1 of Schedule 1 (after table item 116)
This item inserts item 116A to the table to provide that the ASADA is a
prescribed agency for the purposes of the FMA Act. For those purposes the
ASADA comprises the Chair, Deputy Chair and other members of ASADA, the
staff of the ASADA and persons whose services are made available to the
ASADA by virtue of proposed section 50 of the ASADA Bill.
Olympic Insignia Protection Act 1987
Item 9 - Section 23 (definition of national sporting organisation)
This item amends section 23 by omitting reference to the Australian Sports
Drug Agency Act 1990 and substituting it with a reference to the Australian
Sports Anti-Doping Authority Act 2005.
Schedule 2 - Transitional provisions
Part 1 - Introduction
Item 1 - Definitions
Item 1 contains definitions for the purposes Schedule 2. In particular,
'transition time' is defined to mean the commencement of Schedule 2 to the
Bill. Schedule 2 would
commence at the same time that clause 20 of the ASADA Bill commences.
Clause 20 of the ASADA Bill, which establishes the ASADA, would commence on
a day to be fixed by proclamation or, if clause 20 has not commenced within
the period of 6 months beginning on the day the Act receives the Royal
Assent, it would commence on the first day after the end of that period.
Part 2 - Assets, liabilities and legal proceedings
Item 2 - Vesting of assets of ASDA
The effect of item 2 is that on the day on which clause 20 of the ASADA
Bill commences, the assets of the ASDA (as are covered by the definition of
'asset' in item 1), would automatically become the Commonwealth's assets
without the need for any conveyance, transfer or assignment. The
Commonwealth would become the ASDA's successor in law in relation to those
assets. The assets of the ASDA would vest in the Commonwealth because the
ASADA could not hold the assets covered by item 2 (see clause 22 of the
ASADA Bill). However, the operation of item 2 would not affect any
statutory rights of the ASDA vesting in the ASADA (see the definition of
'asset' in item 1).
Item 3 - Vesting of liabilities of the ASADA
The effect of item 3 is that on the day on which clause 20 of the ASADA
Bill commences, the liabilities of the ASDA (as are covered by the
definition of 'liability' in item 1), would automatically become the
Commonwealth's liabilities without the need for any conveyance, transfer or
assignment. The Commonwealth would become the ASDA's successor in law in
relation to those liabilities.
Item 4 - Certificates relating to vesting of assets other than land
Item 4 provides for a simplified procedure in connection with the
registration of assets other than land vested in the Commonwealth as a
consequence of the vesting of the ASDA's assets in the Commonwealth under
item 2.
This procedure is as follows:
. The Minister signs a certificate identifying the asset and stating that
the asset (see the definition of 'asset' in item 1) has become vested in
the Commonwealth under item 2.
. The certificate is lodged with a relevant State or Territory official
responsible for the registration of the asset (the 'asset official' as
defined in item 1).
. The asset official may deal with and give effect to the certificate as if
it were a proper and appropriate instrument for transactions in relation
to assets of that kind and make such entries in a register as are
necessary having regard to the effect of Part 2 of Schedule 2 to this
Bill.
Subitem 4(3) recognises that a certificate under this item is not a
legislative instrument. This subitem is by way of clarification that such
a certificate is not a legislative instrument. It is not an exemption to
the Legislative Instruments Act 2003.
Item 5 - Substitution of the Commonwealth as a party to certain pending
proceedings
Subitem 5(1) provides for the substitution from the day on which clause 20
of the ASADA Bill commences (see the definition of 'transition time' in
item 1) of the Commonwealth for the ASDA as a party to proceedings that
were pending in any court or tribunal before that day and were relating to
proceedings taken by the ASDA in the exercise of a right that is vested on
the Commonwealth by item 2 or in respect of a liability that is vested in
the Commonwealth by item 3.
Subitem 5(3) would allow regulations to determine that either subitem 5(1)
or (2) applies in relation to a particular proceeding or class of
proceeding rather than the other. This would enable a situation to be
addressed where it is more appropriate for the Commonwealth to be
substituted in proceedings for the ASDA instead of the ASADA, or vice
versa.
Part 3 - References to ASDA etc
Item 6 - References in certain instruments to ASDA
Subitems 6(1) and (2) provide for the continuing effect, from the day on
which clause 20 of the ASADA Bill commences (the 'transition time' - see
item 1), of an instrument that is in force before the day on which the
ASADA is established and that:
. was made by the ASDA; or
. was an instrument to which the ASDA was a party; or
. that was given to, or in favour of, the ASDA; or
. was an instrument under which any right or liability accrues or may
accrue to the ASDA; or
. in which a reference is made to the ASDA;
and
. the reference is to the ASDA as an entity with a particular power or
capacity that the ASDA would not have,
as if a reference in that instrument to the ASDA (whether in full or in
abbreviated form) were a reference to the Commonwealth.
Subitem 6(3) would allow regulations to determine that either subitem 6(1)
or (2) applies in relation to a particular reference or class of references
rather than the other subitem. This would enable a situation to be
addressed where it is more appropriate for an instrument to have effect as
if a reference to the ASDA in that instrument is a reference to the
Commonwealth instead of the ASDA, or vice versa.
Item 7 - Provision of services by the ASADA under contract
Subitems 7(1) provide for the continuing effect, from the day on which
clause 20 of the ASADA Bill commences (the 'transition time' - see item 1),
of a contract that is entered in to by ASDA and is in force before the
transition time and which was in relation to ASDA providing drug testing
services, safety checking services or other services relating to sports
drug and safety matters including information technology services.
In relation to these contracts, subitem 7(2) provides that the functions of
ASADA include the provision of the contract services on behalf of the
Commonwealth.
Subitem 7(3) provides for the ASADA Act to have effect as if the services
provided by the ASADA were provided under paragraph 21(1)(k) of that Act.
Subitem 7(4) provides that subitems 7(2) and (3) do not apply if the
particular contracted service was to be provided by ASDMAC on behalf of the
ASDA.
Item 8 - Provision of services by the ASDMAC under contract
Subitems 8 (1) provide for the continuing effect, from the day on which
clause 20 of the ASADA Bill commences (the 'transition time' - see item 1),
of a contract that is entered in to by ASDA and in force before the
transition time and which was in relation to providing services including
drug testing services, safety checking services or other services relating
to sports drug and safety matters (including information technology
services) but where the ASDMAC was to provide some or all of those
services.
In relation to these contracts, subitem 8(2) provides that the functions of
the ASDMAC include the provision of the contract services on behalf of the
Commonwealth.
Item 9 - Transfer of appropriated money
Item 9 provides for references to the ASDA in an Appropriation Act (as
defined in subitem 9(2)) to be read as references to the ASADA. This would
enable money appropriated to the ASDA in an Appropriation Act to be
appropriated to the ASADA. This provision is required because item 6 does
not apply to references to the ASDA in Acts.
Part 4 - Appointments of office holders
Item 10 - Termination of ASDA appointments
Item 10 provides for cessation of the office of members of the ASDA at the
transition time. Subitem 10(3) provides that any members of the ASDA whose
memberships are ceased may nevertheless be appointed as an ASADA member.
Item 11 - Automatic re-appointment of ASDMAC members other than the ASDMAC
Chair
Subitem 11(2) provides for ceasing of the office of members of the ASDMAC
at the transition time. Subitem 11(3) provides that members of the ASDMAC
whose offices were ceased are nevertheless, by a notional instrument under
section 54 of the ASADA Act, taken to have been appointed as ASDMAC members
at the transition time. Subitem 11(4) provides that a notional instrument
starts at the transition time and ends at the end of the period specified
in the particular member's original instrument of appointment as a member
of ASDA.
Item 12 - Automatic re-appointment of the ASDMAC Chair
Subitem 12(2) provides for ceasing of the office of members of the ASDMAC
at the transition time. Subitem 12(3) provides that members of the ASDMAC
whose offices were ceased are nevertheless, by a notional instrument under
section 54 of the ASADA Act, taken to have been appointed as ASDMAC members
at the transition time. Subitem 12(4) provides that a notional instrument
starts at the transition time and ends at the end of the period specified
in the particular member's original instrument of appointment as a member
of ASDA.
Part 5 - Continued application of ASDA Act etc
Item 13 - Continued application of ASDA Act etc
This item provides for the continued application and modification of
certain parts of the ASDA Act, ASDA Regulations and ASDA Orders despite the
repeal of the ASDA Act. It sets out certain "core operative provisions"
and provides that despite the repeal of the core operative provisions (see
Schedule 1 to the Bill) those provisions, the ASDA Regulations and the ASDA
Orders would continue to have effect after the transition time as if the
repeals had not happened. This is subject to items 14, 15 and 16, which
would modify the ASDA Act, ASDA Regulations and ASDA Orders for the
purposes of item 13.
The purpose of Part 5 is to facilitate as far as possible a smooth
transition from the old ASDA system to the new ASADA arrangements. Items
14, 15 and 16 are intended to 'switch off' certain parts of, respectively,
the Act, Regulations and Orders that would otherwise continue to have
effect pursuant to item 13.
To achieve a smooth transition, it is intended that certain matters
commenced by the ASDA prior to the transition date and pursuant to
functions, powers and processes set out in the ASDA Act, Regulations and
Orders that would not be 'switched off' (under Schedule 1 or items 14, 15
or 16), be taken over by the ASADA at the transition date and concluded by
the ASADA pursuant to those ASDA functions, powers and processes.
It is intended that the ASADA would generally only exercise powers or
perform functions that have 'carried over' from the ASDA Act in relation to
matters that have already commenced under the old arrangements. New
matters would be dealt with by the ASADA under the ASADA Act and the NAD
scheme. The intention is that once all the old ASDA processes have reached
their conclusion, there would be no provisions of the ASDA Act that would
continue to have effect.
It is intended, however, that the anti-doping rules set out in the NAD
scheme be permitted to deal with matters arising prior to the commencement
of the ASADA Bill (see subclause 13(2) of that Bill). Consequently, the
ASADA would also have the option of dealing with matters commenced by ASDA
prior to transition under the new regime (ie under the NAD scheme). This
would not be prejudicial to athletes or support persons as the anti-doping
rules against which possible violations would be assessed would be the
rules that existed at the time of the alleged breach (ie not the
potentially different anti-doping rules that might exist at the time of the
investigation). It would be the new procedures, which the ASADA would
manage under the NAD scheme and which are intended to be largely based on
the existing procedures under the ASDA Regulations but with the addition of
a more comprehensive investigative function, which might differ.
The core operative provisions which, despite the repeal of the ASDA Act
under schedule 1, would continue to have effect under item 13 are:
. Part 3 of the ASDA Act (which relates to drug testing schemes under that
Act);
. Part 3A of the ASDA Act (which relates to testing on behalf of a foreign
sporting organisation or under an anti-doping arrangement);
. Part 3B of the ASDA Act (which relates to testing by other sporting
administration bodies);
. Part 3C of the ASDA Act (which provides for the Minister to request
notification in respect of certain matters);
. sections 66, 66A, 67, 67A, 67C, 72, 72A and 73 of the ASDA Act (which are
various miscellaneous provisions);
. Part 1 of the ASDA Act, to the extent to which it relates to a provision
mentioned in any of the above paragraphs; and
. item 14 of the table in Schedule 1 to the Age Discrimination Act 2004.
Item 14 - Modifications of provisions of the ASDA Act
This item modifies provisions of the ASDA Act for the purposes of item 13.
Its purpose is to switch off certain provisions in the ASDA Act that would
otherwise continue to have effect after the transition time.
To facilitate the possible performance by the ASADA (under the ASDA Act) of
functions commenced prior to the transition time by ASDA, however, this
item provides a number of amendments of a general nature. These are that:
. a reference in the provisions of the ASDA Act to the transition time is
a reference to the transition time within the meaning of Schedule 2 to
the Bill;
. a reference in the provisions of the ASDA Act to the "Agency" is to be
construed as a reference to the ASADA (except in relation to matters
that occurred before the transition time);
. a reference in the provisions of the ASDA Act to the ASDMAC is to be
construed as a reference to the ASDMAC as constituted under the ASADA
Act (except in relation to matters that occurred before the transition
time); and
. the ASDA Act does not authorise the amendment of a drug testing scheme
after the transition time.
In addition to these general interpretative amendments, item 14 proposes
amendment to particular section of the ASDA Act. The "switching off" of
particular provisions has consequences, in turn, for other provisions (ie
it means that they become redundant and are also "switched off").
By way of example, paragraph 14(f) provides for amendment of section 17Y of
the ASDA Act. The section as proposed to be amended (and with the
amendment in italics) would read as follows:
"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, before the transition time, request the competitor to
provide a sample for testing."
The effect of the proposed amendment is that, even though section 17Y would
continue in existence pursuant to item 13 of the Bill, the Agency would not
be able to request a competitor to provide a sample under section 17Y after
transition. The provision would be "switched off" at the transition time.
The consequences of such switching off would flow to other sections of the
ASDA Act. For example, if the Agency was unable to request a competitor to
provide a sample under section 17Y, then the procedures to be followed in
relation to such a request (section 17Z) or the power to notify a sporting
administration body of matters arising from the making of such a request
(section 17ZA) would be redundant. They, too, would have no application
and would be "switched off".
The item also provides for other modifications to be able to be prescribed
by regulation should that become necessary.
Item 15 - Modifications of the ASDA regulations
This item modifies provisions of the ASDA regulations for the purposes of
item 13. Its purpose is to switch off certain provisions in regulations
that would otherwise continue to have effect after the transition time.
To facilitate the possible performance by the ASADA (under the ASDA Act) of
functions commenced prior to the transition time by ASDA, however, this
item provides a number of amendments of a general nature. These amendments
are that:
. a reference in the ASDA regulations to the transition time is a
reference to the transition time within the meaning of Schedule 2 to the
Bill;
. a reference in the provisions of the ASDA regulations to the "Agency" is
to be construed as a reference to the ASADA (except in relation to
matters that occurred before the transition time);
. a reference in the provisions of the ASDA regulations to the ASDMAC is
to be construed as a reference to the ASDMAC as constituted under the
ASADA Act (except in relation to matters that occurred before the
transition time); and
. the ASDA regulations does not authorise the amendment of the ASDA Orders
after the transition time.
In addition to these general interpretative amendments, item 15 proposes
amendment to particular regulations. The "switching off" of particular
provisions has consequences, in turn, for other provisions (ie it means
that they become redundant and are also "switched off").
By way of example, paragraph 15(w) provides for amendment of regulation 71
of the ASDA regulations. The regulation as proposed to be amended (and
with the amendment in italics) would read as follows:
"REG 71 - Approvals
(1) The Agency may, before the transition time, on application made in
accordance with regulation 72, approve a courier in writing."
The effect of the proposed amendment is that the Agency would not be able
to approve a courier after the transition time and the provision would be
"switched off" at the transition time. The consequences of such switching
off would flow to other regulations. For example, regulation 82
(prescribing the form of application), Divisions 4.2 (Cancellation of
approvals) and 4.3 (Reconsideration and review) would become redundant.
This is an illustrative example of the purpose and effect of item 15.
The item also provides for other modifications to be able to be prescribed
by regulation should that become necessary.
Item 16 - Modifications of the ASDA drug testing orders
Item 16 provides for the modification of the ASDA Orders for the purposes
of item 13. It provides that, for the purposes of that item a reference in
the ASDA Orders to the "Agency" is to be construed as a reference to the
ASADA (except in relation to matters that occurred before the transition
time). Because of the low level detail of the ASDA Orders no specific
amendments are required as all the Orders would become redundant. However,
the item also provides for other modifications to be able to be prescribed
by regulation.
Item 17 - ASADA's transitional functions
This item provides that the ASADA's functions include any functions
conferred it by either a provision of the ASDA Act, the ASDA Regulations or
the ASDA Orders, continued in effect by item 13.
It is intended to ensure that the ASADA would be able to exercise any power
so conferred in addition to the functions that would be conferred by the
ASADA Bill.
Item 18 - ASDMAC's transitional functions
This item provides that the ASDMAC's functions include any functions
conferred it by either a provision of the ASDA Act, the ASDA regulations or
the ASDA Orders, continued in effect by item 13.
It is intended to ensure that the ASDMAC would be able to exercise any
power so conferred in addition to the functions that would be conferred by
the ASADA Bill.
Item 19 - Disclosure of NAD scheme personal information
Item 19 provides that the disclosure of personal information, which is
obtained in relation to or which relates to the administration of the NAD
scheme, for the purposes of the ASDA Act, ASDA Regulations and ASDA Orders
as they remain in effect by item 13, would be an exception to the
prohibitions in subsection 71(1) of the ASADA Act. Such disclosures are
authorised by law.
Part 6 - Continued application of ASC non-disclosure provisions
Item 20 - Continued application of non-disclosure provisions - ASC
officials
Item 20 applies in relation to any protected information, within the
meaning of Part VIIA of the ASC Act, disclosed to the ASC prior to the
transition time (the day on which the ASADA is established).
The Bill repeals part VIIA of the ASC Act. Item 20 provides that, despite
the repeal, Part VIIA of the ASC Act continues to have effect after the
transition time (in relation to the protected information) as if the repeal
had not happened.
Item 20 is intended to take account of the fact that the ASC may continue
to hold protected information received from the Australian Customs Service
pursuant to the provisions of Part VIIA of the ASC Act and the Customs
Administration Act 1985. Item 20 would ensure that such information would
continue to receive appropriate protection under part VIIA.
Item 21 - Disclosure of ASC information to the ASADA
The effect of item 21 is to allow the ASADA to request the ASC to disclose
to the ASADA certain information that was obtained by the ASC prior to the
transition time. The ASC would be required to comply with such a written
request.
For item 21 to apply, the information must relate to a sports drug and
safety matter or be otherwise relevant to the performance of the functions
of the ASADA (in addition to being obtained by the ASC prior to the
transition time).
Subitem 21(4) provides that Part VIIA of the ASC Act (which would be
repealed by item 5 of Schedule 1 to the Bill, but would continue to have
effect because of item 20 of Schedule 2 to the Bill) does not apply to
disclosure of protected information in compliance with such a request by
the ASADA to the ASC. This requirement is necessary so that all
information be readily available to the ASADA which would be "standing in
the shoes" of the ASC for certain functions. It is important that the
ASADA be in a position to expediently investigate any alleged anti-doping
rule violations.
Subitem 21(6) provides that any personal information so disclosed would be
taken to be NAD scheme personal information for the purposes of the ASADA
Act. This provision would mean that such information would be subject to
the provisions of the ASADA Bill in relation to the further protection of
that information.
Part 7 - Reporting obligations
Item 22 - First annual report for the ASADA
The effect of item 22 is that if the ASADA is established in April, May or
June of a financial year (referred to as the 'first year' in item 22), the
ASADA would not need to prepare and provide to the Minister as soon as
practicable after 30 June of that financial year, an annual report for the
first year under clause 74 of the ASADA Bill.
However, when the ASADA prepares its first annual report, the report would
need to cover the period commencing on the ASADA's establishment and ending
at the end of the next financial year. For example, if the ASADA were
established on 1 April 2006 (as a result of clauses 3 to 79 of the ASADA
Bill having been proclaimed to commence on that day), ASADA's first annual
report would need to relate to the period 1 April 2006 to 30 June 2007.
However, if the ASADA were established on 1 March 2006, it would need to
prepare a report on its operations for the period commencing on 1 March
2006 and ending on 30 June 2006 as soon as practicable after 30 June 2006,
as required by clause 74 of the ASADA Bill.
Item 23 - Final annual report for ASDA
The members of the ASDA are currently required under section 9 of the
Commonwealth Authorities and Companies Act 1997 to prepare an annual report
in relation to the operations of the ASDA. The annual report must also
deal with the matters specified in section 63 of the ASDA Act.
If the ASADA is established during the financial year that started on 1
July 2005, the ASADA would need to prepare an annual report (for the ASDA)
for the period starting on 1 July 2005 and ending immediately before the
transition time (the day on which the ASADA is established). If the ASADA
is established on 1 July 2006, it would need to prepare an annual report
for the ASDA for the 2005-2006 financial year.
Part 8 - Miscellaneous
Item 24 - Exemption from stamp duty and other State or Territory taxes
Item 24 provides that stamp duty and other State or Territory taxes would
not be payable in respect of the vesting of an asset or liability of the
ASDA in the Commonwealth under Schedule 2 to the Bill, or the operation of
that Schedule in any other respect (an 'exempt matter') or anything
connected with such a matter.
The Minister would be able to certify in writing that a specified matter is
an exempt matter or that a specified thing was connected with a specified
exempt matter. In all courts, and for all purposes (other than for the
purposes of criminal proceedings), the Minister's certificate would be
prima facie evidence of the matters stated in it.
Item 25 - Constitutional safety net
Item 25 provides that if the operation of Schedule 2 to the Bill would
result in the acquisition of property from a person otherwise than on just
terms (within the meaning of paragraph 51(xxxi) of the Constitution) the
Commonwealth would be liable to pay reasonable compensation to the person
in respect of the acquisition.
If the Commonwealth and the person cannot agree on the amount of the
compensation, the person would be able to institute proceedings in the
Federal Court of Australia for the recovery from the Commonwealth of such
reasonable amount of compensation as the Court determines.
Item 26 - Certificates taken to be authentic
Item 26 provides that a document that appears to be a certificate issued
under Schedule 2 is taken to be such and taken to have been properly given
unless the contrary is established. This is to ensure that effect is given
to documents that appear to be certificates given by the Minister unless it
is shown that a document is not a certificate or was not properly given by
the Minister. For example, Item 4 refers to certificates that may be
signed by the Minister and given to an assets official. Item 24 refers to
a certificate that may be made by the Minister to the effect that a
specified matter is an exempt matter for the purposes of that item.
Item 27 - Delegation by Minister
Item 27 provides for the Minister to be able to delegate, in writing, all
or any of his or her powers under Schedule 2 to the Bill to the Secretary,
or an SES officer, in the Department (currently the Department of
Communications, Information Technology and the Arts - see Acts
Interpretation Act 1901, s. 19A). The delegate would exercise these powers
subject to the Minister's directions.
Item 28 - Regulations
Item 28 provides that the Governor-General may make regulations prescribing
matters required or permitted by Schedule 2 to be prescribed or necessary
or convenient to be prescribed for carrying out or giving effect to
Schedule 2.
In particular, to deal with unforeseen circumstances, regulations would be
able to be made prescribing matters of a transitional nature (including
prescribing any saving or application provisions) relating to the
amendments or repeals made by the Bill or the enactment of the Bill or the
ASADA Bill.