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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL SPORTS TRIBUNAL BILL 2019
NATIONAL SPORTS TRIBUNAL (CONSEQUENTIAL AMENDMENTS AND
TRANSITIONAL PROVISIONS) BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Aged Care and Senior Australians,
Minister for Youth and Sport, Senator the Hon Richard Colbeck)
NATIONAL SPORTS TRIBUNAL BILL 2019
NATIONAL SPORTS TRIBUNAL (CONSEQUENTIAL AMENDMENTS AND
TRANSITIONAL PROVISIONS) BILL 2019
OUTLINE
This package of two Bills will establish the National Sports Tribunal (Tribunal) to
ensure the Australian sporting community has access to an effective, efficient,
transparent and independent specialist tribunal for the fair hearing and resolution of
sporting disputes.
The National Sports Tribunal Bill 2019 provides for the establishment and operation
of the Tribunal. The National Sports Tribunal (Consequential Amendments and
Transitional Provisions) Bill 2019 deals with the consequential and transitional
matters arising from the enactment of the National Sports Tribunal Act 2019.
Establishing the Tribunal will implement the Government's Response to the Review of
Australia's Sports Integrity Arrangements (the Wood Review), in so far as the
Government agreed (in-principle) with recommendations 26-37 of the Review, which
deal with the establishment and operation of such a tribunal.
The Wood Review, the report of which was published on 1 August 2018, is the most
comprehensive examination of sports integrity arrangements ever undertaken in
Australia.1
The Wood Review Panel, in reaching its conclusions regarding the resolution of
sporting disputes in Australia, examined similar models overseas, including in the
United Kingdom, New Zealand, Canada and Japan, and determined that establishing
an entity such as the proposed Tribunal would significantly enhance the credibility of
sport in Australia. The Tribunal as recommended by the Wood Review and
established through these Bills, will deliver a service sorely needed in Australia - an
independent, timely, transparent, cost-effective and reliable system of sports dispute
resolution.
The Tribunal will provide a forum for the determination of disputes through private
arbitration, or through mediation, conciliation or case appraisal, and will not involve
the exercise of judicial power. The jurisdiction of the Tribunal will be enlivened and
shaped by agreement between parties to a dispute. Agreements enlivening the
jurisdiction of the Tribunal will be effected either through the policies, rules, by-laws
and other constituent documents of a sport (and a person's acceptance of membership,
consenting to be bound by those constituent documents), or by specific agreement
between relevant parties to a dispute otherwise arising under the policies, rules, by-
laws and other constituent documents of a sport.
Establishing the Tribunal with a statutory underpinning means that the Tribunal can
be vested with powers to properly inform itself, including by requiring the attendance
of witnesses and the provision of documents. This was also a key recommendation of
1
The Report provides helpful background information and can be found at
http://www.health.gov.au/internet/main/publishing.nsf/Content/the-review-of-australias-
sports-integrity-arrangements.
1
the Wood Review, and will set the Australian National Sports Tribunal apart from
foreign and international analogues.
In summary, the National Sports Tribunal Bill 2019:
establishes the National Sports Tribunal, with an Anti-Doping Division, a
General Division and an Appeals Division
provides for the appointment of suitably qualified members to the Tribunal
sets out the process by which persons may apply to the Tribunal for arbitration
of an anti-doping dispute or another sport-related dispute in the Anti-Doping
and General Divisions of the Tribunal
sets out the process for parties to make an application to the Appeals Division
of the Tribunal
provides for parties to apply for mediation, conciliation or case appraisal to be
conducted in the General Division of the Tribunal
provides for the appointment of the CEO of the Tribunal, sets out the CEO's
functions, and provides for the staffing arrangements to support the Tribunal
provides for the CEO to make (as a notifiable instrument) a determination
governing the practice and procedure of the Tribunal
provides for the Minister to make rules by way of legislative instrument
generally provides for a two year time limit on the making of applications,
unless that two year period is extended by way of legislative instrument.
The National Sports Tribunal (Consequential Amendments and Transitional
Provisions) Bill 2019 will make consequential amendments to:
paragraph 13(1)(k) of the Australian Sports Anti-Doping Authority Act 2006,
so as to ensure that the National Anti-Doping Scheme is required to authorise
the ASADA CEO, in certain circumstances, to present certain assertions and
information at hearings of the Tribunal
subsection 13D(3) of the Australian Sports Anti-Doping Authority Act 2006,
so as to ensure that material obtained under a disclosure notice under that Act
can be presented as evidence in the Tribunal
Schedule 3 to the Freedom of Information Act 1982, so as to ensure that
material is exempted from release under that Act where its disclosure is
prohibited by the secrecy provision at section 72 of the National Sports
Tribunal Act 2019.
The Bill also provides for the application of the provisions of the National Sports
Tribunal Act 2019 to disputes and decisions made before, on or after commencement.
Given that the establishment of a statutory tribunal to resolve sport-related disputes is
new in the Australian context, the Government has decided to implement the Tribunal
as a 2 year pilot, in the first instance. The Bill reflects this by containing a provision
that imposes a 2 year time limit on the making of applications, or a longer time limit
as specified in the rules.
Financial Impact Statement
There is no net cost to Government.
2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
NATIONAL SPORTS TRIBUNAL BILL 2019
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The National Sports Tribunal Bill 2019 will establish an independent national sports
tribunal to ensure the Australian sporting community has access to effective, efficient,
transparent and independent specialist sports dispute resolution services.
In August 2017, the Minister for Sport requested a Review of Australia's Sports
Integrity Arrangements (the Wood Review), as part of the work being done by the
Australian Government to develop a National Sport Plan.
The Wood Review recommended, as one of its key measures, the establishment of an
independent National Sports Tribunal (Tribunal) to address the shortcomings of the
current dispute resolution system, to provide an expert, central hearing body that can
supplement the work of sports' current internal dispute resolution arrangements and
provide a dispute resolution forum for smaller sports.
This legislation is part of a comprehensive response to the evolving nature of global
sports integrity threats that challenge the safety and fairness of Australian sport, as
well as its broader social and economic value.
Establishing the Tribunal will provide the Australian sporting community access to a
dispute resolution mechanism that provides:
- cost-effective processes for sports and participants
- timely, reliable and efficient procedures
- transparency (through release of decisions)
- preservation of actual and perceived independence.
Human rights implications
This Bill may engage the following rights:
the right to privacy and reputation in Article 17 of the International Covenant
on Civil and Political Rights
the right to the presumption of innocence in Article 14(2) of the International
Covenant on Civil and Political Rights
the right to a fair trial and fair hearing rights in Article 14 of the International
Covenant on Civil and Political Rights.
3
Right to privacy and reputation
Article 17 of the International Covenant on Civil and Political Rights states that '[n]o
one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.'
Secrecy provision
Clause 72 of the Bill makes it an offence for an entrusted person to disclose or use
information that was obtained in their capacity as an entrusted person, that relates to
the affairs of a person (except a person in the person's capacity as an entrusted
person), and identifies, or is reasonably capable of being used to identify, the person
to whose affairs the information relates. An 'entrusted person' is the CEO, a member,
a person assisting the CEO in accordance with clause 66 or 67, or a person engaged as
a consultant, or an expert witness, under clause 68. The maximum penalty for breach
of this provision is imprisonment for 2 years. The Bill provides exceptions to this
prohibition in defined circumstances, including where the disclosure or use is for the
purposes of the Act or the rules, for the purposes of, or in connection with, the
performance or exercise of the person's functions, duties or powers in the person's
capacity as an entrusted person, is in accordance with the rules prescribed for the
purposes of paragraph 72(2)(d), is consented to by the relevant person, or occurs after
the relevant information has been lawfully made public.
By preventing the disclosure of protected information, clause 72 positively engages
the right to privacy and reputation in Article 17 of the International Covenant on Civil
and Political Rights. Clause 72 provides for exceptions to this prohibition on
disclosure, but does not positively authorise or require disclosure in the specified
circumstances, and will therefore not affect the default limitations on use and
disclosure of protected information that are imposed by the Privacy Act 1988 in
relation to 'personal information'.
Publication in accordance with practice and procedure determination
Clause 41(2) of the Bill permits the CEO to make a determination (by notifiable
instrument) in relation to the practice and procedure of the Tribunal, with which
Tribunal members are required to comply in the arbitration context (clause 41(1)).
Clause 41(3) provides that the determination may deal with particular matters, which
include the circumstances in which determinations of the Tribunal, and reasons for the
determinations, are to be published or not published (including the circumstances in
which information is to be de-identified). In some circumstances, the CEO's
determination may require Tribunal members to publish personal information about a
person, such as an athlete or support person (and such publication will not be
prohibited by clause 72, as it will be for the purposes of the performance or exercise
of the members' functions, duties or powers).
Clause 41(2) may engage and limit the right to privacy and reputation because a
determination made under that provision may require Tribunal members to publish a
person's personal information. In the anti-doping context, the publication of certain
information by the Tribunal may be necessary for compliance with Australia's
international obligations under Article 3 of the UNESCO International Convention
against Doping in Sport to implement the purposes of the Convention in a manner
consistent with the principles of the World Anti-Doping Code, eg, to provide a
hearing consistent with the requirements of the World Anti-Doping Code. (It is
4
expected that, to the extent they deal with anti-doping matters, determinations made
under clause 41(2) will be made consistent with that Code.) In the context of disputes
in the General Division, and in relation to matters other than anti-doping matters in
the Appeals Division, it may be appropriate to publish personal information to inform
parties of the outcome of the dispute. Because it will be in accordance with a direction
made by the CEO (which is by way of notifiable instrument), any publication of
personal information by the Tribunal will not be arbitrary.
Clauses 42(1) and 42(2) of the Bill permit a Tribunal member conducting an
arbitration to require a person to appear before the Tribunal to give evidence, or to
give the Tribunal particular information, or produce particular documents or things,
and to require a witness before the Tribunal to answer a question. It is an offence for a
person to fail to comply with any of these requirements. These provisions engage the
right to privacy, as they may require persons to divulge personal information.
One of the key findings of the Wood Review was that the inability of sport-run
tribunals or the Court of Arbitration for Sport to compel third party witnesses
(witnesses beyond contracts with the relevant sports) to give evidence or provide
documents or things for the purposes of arbitration represents a significant weakness
in the integrity response, which is likely to worsen with an increase in non-analytical
Anti-Doping Rule Violations. On this basis, the Wood Review recommended that the
Tribunal have available these powers to gather information.
It is important to note that a member can only require a person to appear before the
Tribunal to give evidence if the member reasonably believes that the person is capable
of giving evidence relevant to the dispute being arbitrated, and can only require a
person to give particular information, or produce particular documents or things if the
member reasonably believes that the person has information, documents or things
relevant to that dispute.
Taking these factors into account, the Tribunal's proposed information gathering
powers are a necessary, reasonable and proportionate imposition on the individual's
right to privacy.
Right to the presumption of innocence
Clause 72 of the Bill makes it an offence for an entrusted person to disclose or use
certain information that was obtained in their capacity as an entrusted person.
Subclause 72(2) provides for exceptions to this prohibition in defined circumstances,
including where the making of the record or the disclosure or use is for the purposes
of the Act or rules, or for the purposes of, in connection with, the performance or
exercise of the person's functions, duties or powers in the person's capacity as an
entrusted person, is in accordance with the rules prescribed for the purposes of
paragraph 72(2)(d), is consented to by the relevant person, or occurs after the relevant
information has been lawfully made public. It creates an evidential burden on a
defendant who seeks to show that a disclosure was authorised or required within the
terms of subclause 72(2).
The placing of an evidential burden on the defendant in relation to these exceptions
engages the right to be presumed innocent in Article 14(2) of the International
Covenant on Civil and Political Rights. Article 14(2) of the International Covenant on
5
Civil and Political Rights provides that persons charged with a criminal offence shall
have the right to be presumed innocent until proven guilty according to law. It
imposes on the prosecution the burden of proving a criminal charge and guarantees
that no guilt can be presumed until the charge has been proved beyond reasonable
doubt.
Reverse burden provisions will impose an acceptable limitation on the right to
presumption of innocence if they are reasonable in the circumstances and maintain the
rights of the accused. Such a provision may be justified if the nature of the offence
makes it very difficult for the prosecution to prove each element, or if it is clearly
more practical for the accused to prove a fact than for the prosecution to disprove it.
Preventing the disclosure of protected information is important, both because of the
content of the information (much of the information is likely to be information that
would be regarded as 'sensitive personal information' under the Privacy Act 1988),
and because of the potential for the disclosure or use of that information to prejudice
the interests of persons involved in disputes before the Tribunal.
The scope of 'entrusted persons' to whom the secrecy provision applies is broad, as
are the potential sources of authority for a disclosure. It will not reasonably be
possible for a prosecution to disprove every conceivable source of authority in many
cases, when that information is within the knowledge of the entrusted person who
made the disclosure. In order to protect protected information effectively, it is
reasonable, necessary and proportionate to require a defendant to adduce or point to
evidence that suggests a reasonable possibility that one of the exceptions listed in
subclause 72(2) applies. Consequently, it is reasonable, necessary and proportionate
for subclause 72(2) to limit the right to the presumption of innocence.
Right to a fair trial and fair hearing rights
By establishing the Tribunal, the Bill may engage Article 14 of the International
Covenant on Civil and Political Rights:
All persons shall be equal before the courts and tribunals. ... ... ... ... . everyone
shall be entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law
However, the Tribunal will not be a court and it will exercise private arbitral
authority, rather than judicial or merits review functions. The arbitral authority of the
Tribunal to deal with a dispute will be conferred under the agreement between the
parties to that dispute (which in practice may take a variety of forms). Consequently,
even if the right to a fair trial and fair hearing rights was engaged by the Bill, it would
be reasonable, necessary and proportionate for it not to meet all of the standards that
would generally be expected in relation to a court or even in relation to a merits
review tribunal.
In particular, even if the Bill engages the right to a fair trial and fair hearing rights, it
is reasonable, necessary and proportionate for the Bill not to require that Tribunal
hearings are public. The practice and procedure of the Tribunal will be determined
primarily by a determination made by the CEO of the Tribunal (which will be a
notifiable instrument), and this determination will deal with the conduct of hearings,
including whether they are to be held in private. Consistent with the World Anti-
6
Doping Code, the hearing of anti-doping matters will be held in private. In the context
of the General Division, and matters other than anti-doping matters in the Appeals
Division, matters that may be heard between two disputing parties may be of a
personal nature and not appropriate to be held in public.
The Bill may promote the right to a fair trial and fair hearing rights as it contains
various measures to ensure that Tribunal members and the CEO are, and are seen to
be, impartial and independent, including strict requirements to disclose conflicts of
interest, limitations on paid work outside the Tribunal, and limitations on the
Minister's power to issue directions to the CEO in relation to specific persons or
matters.
Conclusion
The Bill is compatible with human rights because it promotes the protection of human
rights and, to the extent that it may limit human rights, those limitations are
reasonable, necessary and proportionate.
Senator the Hon Richard Colbeck, Minister for Aged Care and Senior
Australians, Minister for Youth and Sport
7
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
NATIONAL SPORTS TRIBUNAL (CONSEQUENTIAL AMENDMENTS AND
TRANSITIONAL PROVISIONS) BILL 2019
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The National Sports Tribunal (Consequential Amendments and Transitional
Provisions) Bill 2019 will make consequential amendments to:
paragraph 13(1)(k) of the Australian Sports Anti-Doping Authority Act 2006,
so as to ensure that the National Anti-Doping Scheme is required to authorise
the ASADA CEO, in certain circumstances, to present certain assertions and
information at hearings of the Tribunal
subsection 13D(3) of the Australian Sports Anti-Doping Authority Act 2006,
so as to ensure that material obtained under a disclosure notice under that Act
can be presented as evidence in the Tribunal
Schedule 3 to the Freedom of Information Act 1982, so as to ensure that
material is exempted from release under that Act where its disclosure is
prohibited by the secrecy provision at section 72 of the National Sports
Tribunal Act 2019.
The Bill also provides for the application of the provisions of the National Sports
Tribunal Act 2019 to disputes and decisions made before, on or after commencement.
Human rights implications
This Bill engages the following right:
the right to privacy and reputation in Article 17 of the International Covenant
on Civil and Political Rights.
Article 17 of the International Covenant on Civil and Political Rights states that '[n]o
one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.'
The secrecy protections of clause 72 of the National Sports Tribunal Bill 2019 will be
extended by the inclusion of a reference to that provision in Schedule 3 to the
Freedom of Information Act 1982. This will ensure that, in circumstances in which
section 72 of the National Sports Tribunal Act 2019 prohibits a person from
disclosing or otherwise using protected information, the Freedom of Information Act
1982 will not require the release of that information.
By ensuring that appropriate protections are available to prevent the disclosure of
protected information, the recognition of the Bill's secrecy provision in the Freedom
8
of Information Act 1982 positively engages the right to privacy and reputation in
Article 17 of the International Covenant on Civil and Political Rights.
Conclusion
The Bill is compatible with human rights because it promotes the protection of human
rights and, to the extent that it may limit human rights, those limitations are
reasonable, necessary and proportionate.
Senator the Hon Richard Colbeck, Minister for Aged Care and Senior
Australians, Minister for Youth and Sport
9
NATIONAL SPORTS TRIBUNAL BILL 2019
NOTES ON CLAUSES
Current Sports Dispute Resolution Arrangements
Currently, most professional sporting codes in Australia employ in-house dispute
resolution tribunals to adjudicate Anti-Doping Rule Violations (ADRV) and other
integrity/code breaches. Some also have internal appeal mechanisms. These tribunals
are constituted by experienced lawyers and others with sports medicine expertise or
significant sporting backgrounds, and are well respected.
Many smaller sports do not have the same resources or capacity to establish and / or
maintain in-house integrity units or dispute resolution bodies; as such their rules may
permit or require referral to the Court of Arbitration for Sport (CAS) or to an ad hoc
tribunal.
The Wood Review found deficiencies in Australia's current sports dispute resolution
arrangements, particularly with respect to procedural powers, independence,
transparency, accessibility and timeliness.
It recommended, as one of its key measures, establishing an independent National
Sports Tribunal (Tribunal) to address the shortcomings of the current dispute
resolution system - to provide an expert, central hearing body that can supplement the
work of sports' current internal dispute resolution arrangements where they may exist
and provide a dispute resolution forum for the smaller sports.
The National Sports Tribunal
The Tribunal will be an independent arbitral tribunal for sports matters. It will be
established by statute, exercising powers of private arbitration underpinned by
legislation that will also enable it to engage in mediation, conciliation and other
dispute resolution strategies for the prompt and cost-effective resolution of cases
brought to it.
Further, the Tribunal will have available appropriate powers to facilitate the effective
resolution of cases, including the power to order a witness to appear before it to give
evidence, and/or to produce documents or things; and the power to inform itself
independently of submissions made by parties.
The Tribunal will have two first-instance divisions - the Anti-Doping Division, and
the General Division, and will also offer an Appeals Division.
It is important to note that while the Tribunal is to be established by statute, it will be
resolving disputes through exercising powers of private arbitration. As the Wood
Review observed at p 205 (footnotes from the Report included in the text):
It is possible, in general, to confer arbitral authority on a Commonwealth
agency. Under such arrangements, the courts have explained, the
Commonwealth agency is exercising a 'power of private arbitration ...
[where] the arbitrator's powers depend on the agreement of the parties,
usually embodied in a contract.' (Construction, Forestry, Mining and Energy
Union v Australian Industrial Relations Commission (2001) 203 CLR 645,
10
658). Acting as a private arbitrator, a Commonwealth agency such as the
proposed body is understood not to be exercising 'government power'
(Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305, 338) or
'public law functions' (Linfox Australia Pty Ltd v Transport Workers Union
of Australia (2013) 213 FCR 479, 490).
Because the Tribunal will be resolving disputes in accordance with contractual
arrangements agreed between the parties for the resolution of their dispute, the scope
for judicial review of an arbitration will be limited.
Anti-Doping Division
In Australia, sporting bodies' anti-doping policies must be approved by the ASADA
CEO under the ASADA legislative framework. It is through this approval process
that the Tribunal will become the default dispute resolution body responsible for
arbitrating anti-doping matters in Australia, other than in circumstances where the
ASADA CEO approves a sporting body having an internally-run tribunal for anti-
doping matters.
Immediately following commencement however, it is unlikely that many, if any
sporting bodies will have recognised the Tribunal in their rules. It is, in part, for this
reason that an 'ad-hoc' mode of access to the Tribunal will be available, by agreement
between the sport, the athlete or support person and the ASADA CEO.
In circumstances where the anti-doping policy of a sport provides that the Tribunal is
the hearing body for first-instance anti-doping matters, or the sport, the athlete or
support person and the ASADA CEO otherwise agree for the Tribunal to conduct first
instance arbitration, a party to that first instance arbitration (or certain other persons as
provided for in the anti-doping policy or agreement) will be able to appeal to the
Appeals Division. The World Anti-Doping Code (Code) requires that certain bodies,
for example, the World Anti-Doping Agency (WADA), and relevant international
sporting federations, have a direct right of appeal to CAS. The Bill will not prevent
those bodies exercising that appeal right, should they so choose.
General Division
The General Division will be able to arbitrate disputes between a person and a
sporting body, and disputes between 2 or more persons in a sport (where the sporting
body agrees), where the constituent documents of the sport permit the dispute to be
heard in the General Division, or where the sport and the person, or the sport and the 2
or more persons in dispute, otherwise agree to refer their dispute to the General
Division of the Tribunal for arbitration.
The rules will prescribe the kinds of disputes that will be able to be referred, and the
CEO will also have the ability to approve the referral of additional kinds of dispute, in
exceptional circumstances.
The reason for these provisions is to place appropriate limits around the matters that
the General Division is to deal with. For example, it is not intended that the General
Division of the Tribunal would extend to dealing with on-field incidents that would
not amount to breaches of sports' integrity policies or minor behavioural issues that
11
are capable of being dealt with at sport level. Nor is it intended that the General
Division of the Tribunal would deal with commercial contract disputes, or disputes
about employment entitlements, both of which are more appropriately dealt with in
the civil courts.
Appeals Division
The Tribunal will have an Appeals Division for both anti-doping and general matters.
Given the powers that will be available to the Tribunal to obtain evidence and
otherwise inform itself of relevant matters, the CEO will be able to determine, as part
of the practice and procedure of the Tribunal, circumstances in which hearings will
not need to be held in order to deal with an appeal. This will allow for an expedited
appeal process, where appropriate.
12
Who may apply for
Type of dispute Applicable criteria Parties to the arbitration
arbitration
Anti-Doping Division (Anti-doping Policy recognises the Anti-Doping Division)
Anti-doping dispute Sporting body has an ADP that is approved by the The athlete or support person The athlete or support person
Relates to an athlete or ASADA CEO
support person The sporting body
s22(1) Athlete or support person is bound by the ADP
The ASADA CEO
ADP permits dispute to be heard in the Anti-Doping
Division Any other person or body that is
permitted by the ADP to participate
in a hearing of a dispute of the
relevant kind, and advises the
Tribunal in writing of their wish to
be a party
Anti-Doping Division (Anti-doping Policy does not recognise the Anti-Doping Division)
Anti-doping dispute Sporting body has an ADP that is approved by the The athlete or support person The athlete or support person
Relates to an athlete or ASADA CEO
support person The sporting body
s22(2) Athlete or support person is bound by the ADP
The ASADA CEO
ADP does not provide for dispute to be heard in the
Anti-Doping Division Any other person or body that is
specified in the agreement as being
World Anti-Doping Code provides for a form of permitted to participate in a hearing
hearing in relation to disputes of this kind of a dispute of the relevant kind, and
that advises the Tribunal in writing
Athlete or support person, sporting body and of their wish to be a party
ASADA CEO have agreed in writing to refer the
dispute to the Anti-Doping Division
13
Who may apply for
Type of dispute Applicable criteria Parties to the arbitration
arbitration
General Division (constituent documents recognise the General Division)
Dispute other than an Person is bound by one or more constituent The person The person
anti-doping dispute documents of the sporting body
Between a person and a The sporting body The sporting body
sporting body Constituent document/s permit the dispute to be
s23(1)(b)(i) heard in the General Division Any other person or body that is
permitted by a constituent document
Either the kind of dispute is prescribed by the rules, to participate in a hearing of a
or dispute of the relevant kind, and that
the CEO has approved the dispute, in writing, due to advises the Tribunal in writing of
exceptional circumstances their wish to be a party
Dispute other than anti- All of the persons are bound by one or more The sporting body The 2 or more persons
doping dispute constituent documents of the sporting body
Between 2 or more The sporting body
persons Constituent document/s permit the dispute to be
s24(1)(b)(i) heard in the General Division Any other person or body that is
permitted by a constituent document
Either the kind of dispute is prescribed by the rules, to participate in a hearing of a
or dispute of the relevant kind, and
the CEO has approved the dispute, in writing, due to advises the Tribunal in writing of
exceptional circumstances their wish to be a party.
14
Who may apply for
Type of dispute Applicable criteria Parties to the arbitration
arbitration
General Division (constituent documents do not recognise the General Division)
Dispute other than an Person is bound by one or more constituent The person The person
anti-doping dispute documents of the sporting body
Between a person and a The sporting body The sporting body
sporting body Constituent document/s do not provide for the
s23(1)(b)(ii) dispute to be heard in the General Division Any other person or body that is
permitted by a constituent document
The person and the sporting body have agreed in to participate in a hearing of a
writing to refer the dispute to the General Division dispute of the relevant kind, and that
advises the Tribunal in writing of
Either the kind of dispute is prescribed by the rules, their wish to be a party
or
the CEO has approved the dispute, in writing, due to
exceptional circumstances
Dispute other than anti- All of the persons are bound by one or more The sporting body The 2 or more persons
doping dispute constituent documents of the sporting body
Between 2 or more The sporting body
persons Constituent document/s do not provide for the
s24(1)(b)(ii) dispute to be heard in the General Division Any other person or body that is
permitted by a constituent document
The persons and the sporting body have agreed in to participate in a hearing of a
writing to refer the dispute to the General Division dispute of the relevant kind, and
advises the Tribunal in writing of
Either the kind of dispute is prescribed by the rules, their wish to be a party.
or
the CEO has approved the dispute, in writing, due to
exceptional circumstances
15
Who may apply for
Type of dispute Applicable criteria Parties to the arbitration
arbitration
Appeals Division (Anti-doping policy/constituent documents recognise the Appeals Division)
Appealing an anti- ADP permits an appeal to the Appeals Division A party to the arbitration The parties to the arbitration
doping determination from the determination
made by the Anti- Any other person or body The applicant (where the applicant
Doping Division permitted by the ADP to make was not a party to the arbitration)
s31(1) such an appeal
Any other person or body that is
permitted by the ADP to make an
appeal to the Appeals Division from
the determination, and advises the
Tribunal in writing of their wish to
be a party
Appealing an anti- Sporting body has an ADP that is approved by the The athlete or support person The athlete or support person
doping decision made ASADA CEO
by a sporting body The ASADA CEO The sporting body
s32(1) Athlete or support person is bound by the ADP
Any other person or body The ASADA CEO
Sporting body's decision is of a kind that the World permitted by the ADP to make
Anti-Doping Code provides may be made without a such an appeal The applicant (if not covered by the
hearing above)
ADP permits an appeal to the Appeals Division Any other person or body that is
from the decision permitted by the ADP to make an
appeal to the Appeals Division from
the decision, and advises the
Tribunal in writing of their wish to
be a party
16
Who may apply for
Type of dispute Applicable criteria Parties to the arbitration
arbitration
Appeals Division (Anti-doping policy/constituent documents recognise the Appeals Division) (continued)
Appealing an anti- Sporting body has an ADP that is approved by the The athlete or support person The athlete or support person
doping decision made ASADA CEO
by a sporting tribunal The ASADA CEO The sporting body
s33(1) Athlete or support person is bound by the ADP
The sporting body The ASADA CEO
ADP permits an appeal to the Appeals Division
from the decision Any other person or body The applicant (if not covered by the
permitted by the ADP to make above)
such an appeal
Any other person or body that is
permitted by the ADP to make an
appeal to the Appeals Division from
the decision, and advises the
Tribunal in writing of their wish to
be a party
Appealing a general Constituent document/s permit an appeal to the A party to the arbitration The parties to the arbitration
determination made by Appeals Division from the determination
the General Division Any other person or body The applicant (if they were not a
Between: permitted by a constituent party to the arbitration)
- a person and a document to make such an
sporting body, appeal Any other person or body that is
or permitted by a constituent document
- 2 or more to make an appeal to the Appeals
persons Division from the determination, and
s34(1) advises the Tribunal in writing of
their wish to be a party
17
Who may apply for
Type of dispute Applicable criteria Parties to the arbitration
arbitration
Appeals Division (Anti-doping policy/constituent documents recognise the Appeals Division) (continued)
Appealing a general The person is bound by one or more constituent The person The person
decision made by a documents of the sporting body
sporting tribunal The sporting body The sporting body
Between a person and a Constituent document/s permit an appeal to the
sporting body Appeals Division from the decision Any other person or body The applicant (if not covered by the
s35(1) permitted by a constituent above)
Either the kind of dispute is prescribed by the rules, document to make such an
or the CEO has approved the dispute, in writing, appeal Any other person or body that is
due to exceptional circumstances permitted by a constituent document
to make an appeal to the Appeals
Division from the decision, and
advises the Tribunal in writing of
their wish to be a party
Appeals Division (Anti-doping policy/constituent documents do not recognise the Appeals Division)
Appealing an anti- ADP does not provide for an appeal to the Appeals A party to the arbitration The parties to the arbitration
doping determination Division from the determination
made by the Anti- Any other person or body The applicant (where the applicant
Doping Division Athlete or support person, sporting body and specified in that agreement as was not a party to the arbitration)
s31(2) ASADA CEO have agreed in writing that an appeal being able to make such an
may be made to the Appeals Division appeal Any other person or body that is
specified in the agreement as being
able to make an appeal to the
Appeals Division from the
determination, and advises the
Tribunal in writing of their wish to
be a party
18
Who may apply for
Type of dispute Applicable criteria Parties to the arbitration
arbitration
Appealing an anti- Sporting body has an ADP that is approved by the The athlete or support person The athlete or support person
doping decision made ASADA CEO
by a sporting body The ASADA CEO The sporting body
s32(2) Athlete or support person is bound by the ADP
Any other person or body The ASADA CEO
The sporting body's decision is of a kind that the specified in the agreement as
World Anti-Doping Code provides may be made being able to make such an The applicant (if not covered by the
without a hearing appeal above)
Sporting body's decision is of a kind that the World Any other person or body that is
Anti-Doping Code permits an appeal from specified in the agreement as being
able to make an appeal to the
ADP does not provide for an appeal to the Appeals Appeals Division from the decision,
Division and advises the Tribunal in writing
of their wish to be a party
Athlete or support person, sporting body and
ASADA CEO have agreed in writing that an appeal
may be made to the Appeals Division from the
decision
19
Who may apply for
Type of dispute Applicable criteria Parties to the arbitration
arbitration
Appeals Division (Anti-doping policy/constituent documents do not recognise the Appeals Division) (continued)
Appealing an anti- Sporting body has an ADP that is approved by the The athlete or support person The athlete or support person
doping decision made ASADA CEO
by a sporting tribunal The ASADA CEO The sporting body
s33(2) Athlete or support person is bound by the ADP
The sporting body The ASADA CEO
Sporting body's decision is of a kind that the World
Anti-Doping Code permits an appeal from Any other person or body The applicant (if not covered by the
specified in the agreement as above)
ADP does not provide for an appeal to the Appeals being able to make such an
Division from the decision appeal Any other person or body that is
specified in the agreement as being
Athlete or support person, sporting body and able to make an appeal to the
ASADA CEO have agreed in writing that an appeal Appeals Division from the decision,
may be made to the Appeals Division from the and advises the Tribunal in writing
decision of their wish to be a party
Appealing a general Constituent document/s do not provide for an appeal A party to the arbitration The parties to the arbitration
determination made by to the Appeals Division from the determination
the General Division Any other person or body The applicant (if they were not a
Between The parties to the arbitration have agreed in writing specified in the agreement as party to the arbitration)
- a person and a that an appeal may be made to the Appeals Division being able to make such an
sporting body, from the determination appeal Any other person or body that is
or specified in the agreement as being
- 2 or more able to make an appeal to the
persons Appeals Division from the
s34(2) determination, and advises the
Tribunal in writing of their wish to
be a party
20
Who may apply for
Type of dispute Applicable criteria Parties to the arbitration
arbitration
Appeals Division (Anti-doping policy/constituent documents do not recognise the Appeals Division) (continued)
Appealing a general The person is bound by one or more constituent The person The person
decision made by a documents of the sporting body
sporting tribunal The sporting body The sporting body
s35(2) Constituent document/s do not provide for appeal to
the Appeals Division from the decision Any other person or body The applicant (if not covered by the
specified in the agreement as above)
The person and the sporting body have agreed in being able to make such an
writing that an appeal may be made to the Appeals appeal Any other person or body that is
Division from the decision specified in the agreement as being
able to make an appeal to the
Either the kind of dispute is prescribed by the rules, Appeals Division from the decision,
or the CEO has approved the dispute, in writing, and advises the Tribunal in writing
due to exceptional circumstances of their wish to be a party
21
Part 1--Preliminary
Clause 1: Short title
The effect of this clause is that the Bill, when enacted, may be cited as the National
Sports Tribunal Act 2019 (the Act).
Clause 2: Commencement
This clause provides for the commencement of the entire Bill on a date to be fixed by
proclamation. In the absence of proclamation within a period of 6 months beginning
on the day of Royal Assent, the Bill will commence on the day after that period ends.
Once the Bill receives Royal Assent, the Minister will be able to make appointments
and rules, which will come into effect when the substantive clauses of the Bill
commence (see section 4 of the Acts Interpretation Act 1901).
Clause 3: Object of this Act
This clause sets out the object of the Act, which is to establish the Tribunal to provide
an effective, efficient, independent, transparent and specialist tribunal for the fair
hearing and resolution of sporting disputes.
Subclause (2) highlights that the Bill gives effect to the UNESCO International
Convention Against Doping in Sport: of particular relevance in this respect are the
provisions of the Bill dealing with the Anti-Doping Division and anti-doping related
disputes that are appealed to the Appeals Division. The Bill also gives effect to other
international agreements prescribed by the rules.
Clause 4: Simplified outline of this Act
This clause provides an overview of the Bill. It should be noted that, while this outline
is included to assist readers to understand the legislation, readers should rely on the
substantive provisions of the Bill.
Clause 5: Definitions
Subclause (1) sets out definitions for certain terms used in the Bill.
In this context, a key definition for the Bill is the definition of 'sporting body'. A
sporting body is defined as (a) a national sporting organisation for a particular sport,
or (b) a body or organisation specified in an instrument under subclause (3).
Subclause (3) will provide that the CEO may, by notifiable instrument, specify a body
or organisation for the purposes of paragraph (b) of the definition of 'sporting body'.
A body or organisation will be able to be specified by name, or by class. This facility
will provide greater access to the Tribunal for those sporting bodies that wish to use
the Tribunal.
The notifiable instrument is not legislative in character pursuant to the Legislation Act
2003 as it does not determine or alter the content of the law, but rather, simply
determines to whom the law applies.
Subclause (2) clarifies that the word 'dispute', when used in the Act, includes a
dispute in connection with a decision made by a person or body. For example, a
dispute would include circumstances in which an athlete disagreed with a decision of
22
a national sporting organisation not to select them for a particular event, or not to
impose a sanction on a person in relation to whom the athlete had made a bullying
complaint.
Clause 6: Application of this Act
This clause sets out the constitutional coverage for the Act. Subclause (1) makes clear
that the provisions of the Act governing the process for arbitration of anti-doping
disputes and appeals, and related provisions of the Act, rely on the Commonwealth's
legislative power in respect of external affairs (s 51(xxix) of the Constitution) to give
effect to the UNESCO International Convention Against Doping in Sport. Relevantly,
the Convention requires States Parties to adopt anti-doping measures that are
consistent with the principles of the Code. In this context, the Code sets out
requirements for the results management of asserted breaches of the anti-doping rules,
including requirements for anti-doping hearings and appeals.
Subclause (2) concerns disputes other than anti-doping disputes. It provides that the
provisions governing the process for the resolution of such disputes (whether by
arbitration or alternative dispute resolution mechanisms), and related provisions of the
Act, apply in relation to disputes of a kind that are listed in the subclauses.
The first category of disputes (paragraph (2)(a)) concern those where the relevant
sporting body is a trading or financial corporation within the meaning of s 51(xx) of
the Constitution, or is a body corporate incorporated in a Territory, or is a body
corporate taken to be registered in a Territory under s 119A of the Corporations
Act 2001.
The second category of disputes (paragraph 2(b)) are those involving matters relating
to a sporting event at which Australia is to be, is, or was, represented as a nation.
Assuming the relevant sporting bodies and their members were to agree to submit
disputes of this nature for resolution by the Tribunal, disputes of this kind would
include: disputes concerning selection in an Australian team for an Olympic Games or
Commonwealth Games (whether those Games are to be held in Australia or overseas),
or for an event held between Australia or another nation (for example, the Ashes).
The third category of disputes (paragraph 2(c)) are those involving matters that occur
beyond the limits of the States and Territories - in other words, involving matters
geographically external to Australia. An example of a dispute of this kind would be
where an athlete who is member of a sporting body travels overseas to train, and
commits a breach of the sporting body's disciplinary code while overseas. Provided
that the constituent documents of the sporting body enable the Tribunal to deal with
the dispute, or the sporting body and the athlete otherwise agree to the Tribunal
dealing with the dispute.
Clause 7: Crown to be bound
Subclause (1) provides that the Act will bind the Crown in each of its capacities. This
means that the Commonwealth and State and Territory executive governments will be
bound to comply with the provisions of the Act. However, subclause (2) will operate
so that the Crown is not liable to be prosecuted for an offence under the Act.
23
Clause 8: Extraterritorial application
This clause provides that the Act will extend to acts, omissions, matters and things
outside Australia. This means, for example, that a dispute will be able to be heard by
the Tribunal, even if the dispute is in relation to something that occurred overseas
(provided the relevant threshold requirements for an application to the Tribunal
specified in the Act are complied with).
Part 2--Establishment of the National Sports Tribunal
Division 1--Simplified outline of this Part
Clause 9: Simplified outline of this Part
This clause provides an overview of Part 2 of the Bill. It should be noted that, while
this outline is included to assist readers to understand the legislation, readers should
rely on the substantive provisions of the Part following the simplified outline.
Division 2--Establishment of the National Sports Tribunal
Clause 10: Establishment of the National Sports Tribunal
This clause establishes the National Sports Tribunal (Tribunal).
Clause 11: Divisions of the National Sports Tribunal
This clause specifies the three Divisions of the Tribunal - the Anti-Doping Division,
the General Division and the Appeals Division.
Division 3--Members of the National Sports Tribunal
Clause 12: Number of members
This clause provides that the Tribunal will consist of the members that are appointed
in accordance with the Act. There is no minimum or maximum number of members
that may be appointed: this means that the Minister will be able to appoint as many
members as he or she considers necessary to provide the range of expertise and
capacity required.
Clause 13: Appointment of members
Subclause (1) provides that a member is to be appointed by the Minister by written
instrument, on a part-time basis. A person's appointment as a member does not
guarantee them a minimum volume of work, or even that they will be allocated by the
CEO of the Tribunal to an arbitration panel, or otherwise requested to provide
services at all.
Subclause (2) provides that members hold office for the period specified in their
instruments of appointment, which may be up to 5 years. Because the Tribunal will
initially be established as a 2 year pilot, the initial member appointments will be for 2
years or less.
Subclause (3) prohibits the Minister from appointing a person as a member of the
Tribunal unless the Minister is satisfied that they have experience or knowledge in
one of the listed fields. It is important for the pool of members to have experience in a
range of relevant fields, so that the CEO is able to appoint to each arbitration panel a
24
member or group of members with expertise that will enable an efficient and effective
arbitration of the dispute in question.
Subclause (4) makes clear that the CEO of the Tribunal is not eligible for appointment
as a member.
Clause 14: Remuneration
This clause provides for the remuneration and allowances of members to be
determined by the CEO. The CEO will determine the remuneration of members
having regard to factors such as the expertise of the member, the complexity of the
matter arbitrated by the member and the financial capacity of the parties to the matter.
It is anticipated that, in some circumstances, members may agree to receiving minimal
or no remuneration in relation to a matter.
Clause 15: Other terms and conditions
This clause allows the CEO to set terms and conditions on which a member holds
office, in addition (but not contrary) to those set out in the Act.
Clause 16: Disclosure of interests to the CEO
This clause provides an important mechanism for ensuring the actual and perceived
impartiality of the Tribunal. It requires each member to notify the CEO of all interests
of that member that conflict, or could conflict, with the proper performance of the
member's functions. This obligation applies regardless of the type of interest (ie,
whether the interest in question relates to money or anything else), and regardless of
whether the member has the interest at the time of their appointment or they acquire it
after their appointment.
One reason this clause is particularly important is that, because members will be
appointed on a part-time basis, and have no guarantee of being allocated to an
arbitration panel, it is expected that many members will engage in paid work outside
the Tribunal. Further, it is anticipated that persons with the requisite skills and
expertise required for appointment as a panel member are likely to have roles (paid or
unpaid) within the sports sector.
Subclause (2) permits the rules to prescribe how and when interests must be disclosed
and the consequences of disclosing an interest.
Clause 17: Resignation of appointment
This clause sets out the process for, and time of effect of, member resignations.
Clause 18: Termination of appointment
This clause sets out the circumstances in which the Minister may terminate the
appointment of a member. These include circumstances in which the member fails,
without reasonable excuse, to disclose interests to the CEO in accordance with
clause 16.
Subclause (1) provides that the Minister may terminate the appointment of a member
for misbehaviour. In Vanstone v Clark (2006) 224 ALR 666, the Full Court of the
Federal Court concluded that for conduct to be regarded as 'misbehaviour' in the
general sense it must bear on the person's capacity to hold office and the question
25
must be considered with reference to the particular office (at 673, 721)). The reference
to 'misbehaviour' can apply to misbehaviour in the course of performing duties of the
office, as well as misbehaviour out of office (eg the commission of a serious criminal
offence) which affects the perceptions of others in relation to the office so that any
purported performance of the office will be perceived as corrupt, improper or inimical
to the interests of the persons, or the organisation for whose benefits the functions are
performed (at 708); see also Clark v Vanstone (2004) 211 ALR 412 at 440-441).
Clause 19: Application of the Public Governance, Performance and Accountability
Act 2013
This clause provides that a member is not an official for the purposes of the Public
Governance, Performance and Accountability Act 2013 (the PGPA Act), which
imposes a range of obligations on 'officials' of Commonwealth entities.
Clause 20: General duties of members
This clause imposes on members duties that are broadly equivalent to those imposed
on an official of a Commonwealth entity by sections 26-28 of the PGPA Act, namely
the duty to act honestly, in good faith and for a proper purpose, and duties in relation
to use of position and use of information.
Part 3--Resolution of disputes by the National Sports Tribunal
Division 1--Simplified outline of this Part
Clause 21: Simplified outline of this Part
This clause provides an overview of Part 3 of the Bill. It should be noted that, while
this outline is included to assist readers to understand the legislation, readers should
rely on the substantive provisions of the Part following the simplified outline.
Division 2--Anti-Doping Division
Clause 22: Applications for arbitration of disputes relating to anti-doping
policies
This clause sets out the criteria that must be satisfied before a person may apply to the
Tribunal for arbitration of a dispute relating to an anti-doping policy of a sport, and
specifies who may make such an application. There are different sets of criteria that
apply to different circumstances. These different circumstances are intended to take
account of the different arrangements provided for in the anti-doping policies of
sports.
Australia is a signatory to the UNESCO International Convention against Doping in
Sport and as such is required to adopt anti-doping measures that are consistent with
the principles of the Code.
Importantly, Art 2 of the Code specifies circumstances and conduct that constitute
ADRVs, and Art 10 provides for sanctions to be imposed on individuals should they
commit an ADRV.
To be recognised as a national sporting organisation in Australia, and consequently be
eligible for government funding, a sporting organisation is required to have an anti-
doping policy for its sport that is approved by the ASADA CEO as being compliant
26
with the Code (including approval of substantive amendments to that policy). The
ASADA CEO's approval of an anti-doping policy (or amendments to it) may occur
before commencement of the Act, or afterwards.
In becoming members of a sport, athletes and support personnel agree to abide by the
policies of the sport, including the anti-doping policy.
If an athlete or support person is asserted to have breached the terms of an anti-doping
policy (ie, an ADRV is asserted against them) they will receive a notice from their
sport (which may be referred to as an infraction notice) asserting a breach of the
relevant provisions of the anti-doping policy of the sport.
Under the terms of the anti-doping policy, the athlete or support person can either
choose to accept the violation and sanction, or apply for a hearing before a sport
tribunal to dispute the assertion that they committed an ADRV, or dispute the sanction
that the sport proposes to impose.
ASADA, as the national anti-doping organisation for Australia for the purposes of the
Code, or WADA, may also wish to dispute a sanction imposed by a sporting body, or
dispute the failure of a sporting body to impose a sanction.
Art 8 of the Code provides that an athlete or support person who is asserted to have
committed an ADRV is entitled, at a minimum, to a fair hearing within a reasonable
time by a fair and impartial hearing panel.
As discussed above, in Australia, some anti-doping disputes are arbitrated at first
instance by tribunals run internally by individual sports. However, most sports do not
have internal tribunals. Currently, their only available forum for ADRV disputes is
CAS, a body based in Switzerland established to provide sport-related dispute
resolution services (primarily arbitration) to parties who have agreed to its
jurisdiction. The CAS Oceania Registry is based in Sydney.
Subclause (1) enables an athlete or support person to apply to the Tribunal for
arbitration of an anti-doping dispute where the terms of the anti-doping policy by
which they are bound permits such disputes to be heard in the Anti-Doping Division
of the Tribunal.
Subclause (2) deals with the case where the terms of the anti-doping policy do not
provide for the referral of an anti-doping dispute for hearing by the Anti-Doping
Division of the Tribunal, but the dispute is of a kind in respect of which the Code
provides for a hearing. Where the athlete or support person, the sporting body and the
ASADA CEO agree in writing to refer the dispute to the Anti-Doping Division of the
Tribunal, the athlete or support person will be able to apply to the Tribunal for
arbitration of the dispute.
Immediately following commencement, it is unlikely that many, if any sporting
bodies will have recognised the Tribunal in their rules. It is, in part, for this reason
that an 'ad-hoc' mode of access to the Tribunal will be available, by agreement
between the sport, the athlete or support person and the ASADA CEO.
It is through the ASADA legislative framework and requirement for anti-doping
policies to be approved by the ASADA CEO that the Tribunal will become the default
dispute resolution body responsible for arbitrating anti-doping matters in Australia
27
(other than in circumstances where the ASADA CEO approves a sporting body
having an internally-run tribunal for anti-doping matters).
Subclause (3), paras (a)-(c) provide that the parties to the arbitration will be the athlete
or support person, the sporting body, and the ASADA CEO. This generally reflects
the current position, in which the sport delegates to the ASADA CEO its function of
presenting cases against athletes or support personnel, but the sport is also a party to
the proceedings.
Consistent with the Code, anti-doping policies also provide other relevant bodies (eg,
a relevant international sporting federation, WADA, the Australian Olympic
Committee, the Australian Sports Commission) the right to participate in a hearing,
should they wish to do so. Paragraph (3)(d) provides a mechanism by which those
bodies are able to become a party to an arbitration. In the case where the arbitration is
as a result of an agreement under paragraph (2)(f), paragraph (3)(e) will provide a
mechanism for other persons or bodies specified in that agreement to become a party
to that arbitration.
Subclause (4) provides that the arbitration is to be conducted in the Anti-Doping
Division of the Tribunal.
Division 3--General Division
Subdivision A - Applications for arbitration of disputes
It is proposed that sporting bodies will be able to use the General Division of the
Tribunal for the arbitration of disputes that are not anti-doping disputes (other sport-
related disputes).
That is, sporting bodies and certain persons associated with them will be permitted to
utilise the Tribunal for the arbitration of other sport-related disputes, provided
relevant threshold criteria are met. However, sporting bodies and certain persons
associated with them may also choose to resolve disputes that are not anti-doping
disputes by other alternative dispute resolution mechanisms.
Clause 23: Disputes between a person and a sporting body
This clause sets out the criteria that must be satisfied before a person may apply to the
Tribunal for arbitration of a dispute, where the dispute is between a person and a
sporting body.
This clause refers to 'a person bound by one or more constituent documents by which
a sporting body is constituted or according to which a sporting body operates'.
Broadly stated, this expression is intended to encompass any person who has agreed
to be bound by the rules of the sporting body. A person may enter into such an
agreement in various ways, eg, by signing a membership form, or by signing an entry
form when entering a race organised by the sporting body, and in doing so agreeing to
be bound by the rules of the sport.
When a dispute arises between such a person and the relevant sporting body, the
person or sporting body may apply to the Tribunal for arbitration of the dispute,
provided those parties have agreed that the dispute can be arbitrated by the General
Division of the Tribunal. This agreement may arise in 2 different ways:
28
one or more of the constituent documents that bind the person and the sporting
body permit disputes of the relevant kind to be arbitrated by the Tribunal
none of the constituent documents permits disputes of the relevant kind to be
arbitrated by the Tribunal, but the person and the sporting body agree separately,
in writing, for the dispute to be arbitrated by the General Division of the Tribunal.
Subclause (2) provides that the parties to the arbitration are the person, the sporting
body, and any other person or body that is permitted under any of the sporting body's
constituent documents to participate in a hearing of a dispute of that kind, and that
advises the Tribunal in writing that the person or body wishes to be a party to the
arbitration. Subclause (3) provides that the arbitration is to be conducted in the
General Division of the Tribunal.
However, a final criterion that must be met before a person or sporting body may
apply to the Tribunal for arbitration of the dispute is that the dispute must either be of
a kind prescribed by the rules for the purposes of this clause(subclause (1)(c)(i)), or be
a dispute that is approved by the CEO in writing (subclause (1)(c)(ii)).
The CEO can only give an approval to a dispute being referred to the Tribunal if the
CEO is satisfied that there are exceptional circumstances justifying the giving of the
approval. Subclause (6) sets out circumstances that are exceptional for these purposes,
but does not limit what can be considered exceptional circumstances for the purposes
of subclause (5).
The CEO is not permitted to approve a particular dispute which is of a kind prescribed
by the rules for the purpose of subclause (4).
Requiring the disputes that may be arbitrated in the General Division to be prescribed
by type in the rules, or otherwise approved on a case by case basis by the CEO is
intended to ensure that the Tribunal is not used to arbitrate disputes that are
inappropriate for arbitration by the Tribunal, such as matters more appropriate for
resolution in courts of law (eg, enforcement of employment entitlements), and matters
that are more appropriately dealt with at a sport level (eg, on-field incidents).
Subclause (7) makes clear that the CEO's approval is not a legislative instrument.
This provision has been included to assist readers, as the instrument is not a legislative
instrument within the meaning of s 8(1) of the Legislation Act 2003.
Clause 24: Disputes between 2 or more persons
Sometimes sporting disputes arise under the rules of a sport between 2 or more
persons involved in the sport, rather than between a person and a sporting body. This
clause sets out the criteria that must be satisfied before a person may apply to the
Tribunal for arbitration of such a dispute.
This clause refers to 'a person bound by one or more constituent documents by which
a sporting body is constituted or according to which a sporting body operates'. Again,
broadly stated, this expression is intended to encompass persons who have agreed to
be bound by the rules of the sporting body. A person may enter into such an
agreement in various ways, eg, by signing a membership form, or by signing an entry
form when entering a race organised by the sporting body, and in doing so agreeing to
be bound by the rules of the sport.
29
When a dispute arises between 2 or more such persons, the sporting body may apply
to the Tribunal for arbitration of the dispute, provided those parties have agreed that
the dispute can be arbitrated by the General Division of the Tribunal. This agreement
may arise in 2 different ways:
each of the persons are bound by one or more constituent documents that permit
disputes of the relevant kind to be arbitrated by the Tribunal
none of the constituent documents permit disputes of the relevant kind to be
arbitrated by the Tribunal, but all of the persons agree separately, in writing, for
the dispute to be arbitrated by the General Division of the Tribunal.
The persons in dispute may not themselves apply to the Tribunal for arbitration: the
application can only be made by the sporting body under whose rules the dispute has
arisen. This limitation is to ensure that the Tribunal only arbitrates disputes that the
relevant sporting body considers appropriate for resolution by the Tribunal.
Subclause (2) provides that the parties to the arbitration are the persons involved in
the dispute, the relevant sporting body, and any other person or body that is permitted
under any of the sporting body's constituent documents to participate in a hearing of a
dispute of that kind, and that advises the Tribunal in writing that the person or body
wishes to be a party to the arbitration.
Again, a final criterion that must be met before a person or sporting body may apply
to the Tribunal for arbitration of the dispute is that the dispute must either be of a kind
prescribed by the rules for the purposes of this clause, or be approved by the CEO in
writing.
The CEO is not permitted to approve a particular dispute which is of a kind prescribed
by the rules for the purpose of subclause (4). The CEO can only give an approval if
the CEO is satisfied that there are exceptional circumstances justifying the giving of
the approval. Subclause (6) sets out circumstances that are exceptional for these
purposes, but does not limit what can be considered exceptional circumstances.
As discussed above, requiring the disputes that may be arbitrated in the General
Division to be prescribed by type in the rules, or otherwise approved on a case by case
basis by the CEO is intended to ensure that the Tribunal is not used to arbitrate
disputes that are inappropriate for arbitration by the Tribunal, such as matters more
appropriate for resolution in courts of law, and matters that are more appropriately
dealt with at a sport level.
Subclause (7) makes clear that the CEO's approval is not a legislative instrument.
This provision has been included to assist readers, as the instrument is not a legislative
instrument within the meaning of s 8(1) of the Legislation Act 2003.
Subdivision B--Applications for alternative dispute resolution processes
Clause 25: Disputes between a person and a sporting body
This clause sets out the criteria that must be satisfied before a person may apply to the
Tribunal for mediation, conciliation or case appraisal of a dispute, where the dispute is
between a person and a sporting body. Mediation, conciliation or case appraisal will
only be available for disputes in the General Division.
30
This clause refers to 'a person bound by one or more constituent documents by which
a sporting body is constituted or according to which a sporting body operates'.
Broadly stated, this expression is intended to encompass any person who has agreed
to be bound by the rules of the sporting body. A person may enter into such an
agreement in various ways, eg, by signing a membership form, or by signing an entry
form when entering a race organised by the sporting body, and in doing so agreeing to
be bound by the rules of the sport.
When a dispute arises between such a person and the relevant sporting body, the
person or the sporting body may apply to the Tribunal for mediation, conciliation or
case appraisal of the dispute, provided those parties have agreed in writing that the
dispute can be referred to the Tribunal for mediation, conciliation or case appraisal by
the General Division of the Tribunal.
Subclause (2) provides that the participants in the mediation, conciliation or case
appraisal are the person and the sporting body, and subclause (3) provides that the
mediation, conciliation or case appraisal is to be conducted in the General Division of
the Tribunal.
The dispute must either be of a kind prescribed by the rules for the purposes of this
clause, or be approved by the CEO in writing. The CEO is not permitted to approve a
particular dispute which is of a kind prescribed by the rules for the purpose of
subclause (4).
Requiring the disputes that may be the subject of mediation, conciliation or case
appraisal in the General Division to be prescribed by type in the rules, or otherwise
approved on a case by case basis by the CEO is intended to ensure that the Tribunal is
not used to deal with disputes that are inappropriate for mediation, conciliation or case
appraisal by the Tribunal, such as matters more appropriately dealt with at a sport
level (although a wider range of matters will be appropriate for the purposes of this
clause, as compared to the clauses relating to arbitration).
Subclause (5) makes clear that the CEO's approval is not a legislative instrument.
This provision has been included to assist readers, as the instrument is not a legislative
instrument within the meaning of s 8(1) of the Legislation Act 2003.
Clause 26: Disputes between 2 or more persons
This clause sets out the criteria that must be satisfied before an application may be
made to the Tribunal for mediation, conciliation or case appraisal of a dispute, where
the dispute arises under the rules of a sport between 2 or more persons, rather than
between a person and a sporting body. Mediation, conciliation or case appraisal will
only be available for disputes in the General Division.
This clause refers to 'a person bound by one or more constituent documents by which
a sporting body is constituted or according to which a sporting body operates'. Again,
broadly stated, this expression is intended to encompass persons who have agreed to
be bound by the rules of the sporting body. A person may enter into such an
agreement in various ways, eg, by signing a membership form, or by signing an
entrance form when entering a race organised by the sporting body, and in doing so
agreeing to be bound by the rules of the sport.
When a dispute arises between 2 or more such persons, the sporting body may apply
to the Tribunal for mediation, conciliation or case appraisal of the dispute, provided
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each of the persons has agreed in writing that the dispute can be referred to the
Tribunal for mediation, conciliation or case appraisal by the General Division of the
Tribunal.
The persons in dispute may not themselves apply to the Tribunal for mediation,
conciliation or case appraisal: application can only be made by the sporting body
under whose rules the dispute has arisen. This limitation is to ensure that the Tribunal
only provides mediation, conciliation or case appraisal in relation to disputes for
which the relevant sporting body considers Tribunal involvement appropriate. Each of
the persons involved in the dispute, and also the relevant sporting body, are
participants in the mediation, conciliation or case appraisal.
The dispute must either be of a kind prescribed by the rules for the purposes of this
clause, or be approved by the CEO in writing. The CEO is not permitted to approve a
particular dispute which is of a kind prescribed by the rules for the purpose of
subclause (4).
Requiring the disputes that may be the subject of mediation, conciliation or case
appraisal in the General Division to be prescribed by type in the rules, or otherwise
approved on a case by case basis by the CEO is intended to ensure that the Tribunal is
not used to deal with disputes that are inappropriate for mediation, conciliation or case
appraisal by the Tribunal, such as matters more appropriately dealt with at a sport
level (although a wider range of matters will be appropriate for the purposes of this
clause, as compared to the clauses relating to arbitration).
Subclause (5) makes clear that the CEO's approval is not a legislative instrument.
This provision has been included to assist readers, as the instrument is not a legislative
instrument within the meaning of s 8(1) of the Legislation Act 2003.
The participants in the mediation, conciliation or case appraisal are the each of the 2
or more persons and the sporting body, and the mediation, conciliation or case
appraisal is to be conducted in the General Division of the Tribunal.
Division 4--Arbitration of disputes in Anti-Doping Division or General Division
Clause 27: Arbitration of disputes in Anti-Doping Division or General Division
Subclause (1) requires the Tribunal to conduct an arbitration of a dispute and make a
written determination in relation to the dispute if an application is made for that
arbitration in the circumstances permitted by Division 2, or Subdivision A of
Division 3, and the application is made in accordance with Division 7 of Part 3.
Under subclause (2), the Tribunal's determination takes effect on the day specified in
the determination and, under subclause (3), the Tribunal is required to give the parties
to the arbitration written notice of the determination and its reasons for making that
determination.
Subclause (4), paragraphs (a)-(c) set out certain circumstances in which the Tribunal
may terminate an arbitration. Paragraph (4)(d) permits the rules to set out additional
circumstances in which the Tribunal may terminate an arbitration.
Subclause (5) provides that the Tribunal will be able to suspend an arbitration in
circumstances prescribed by the rules. An example of a circumstance that is to be
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prescribed by the rules is where the Tribunal considers that it is appropriate to refer a
General Division dispute to mediation or conciliation, before it is arbitrated.
Division 5--Alternative dispute resolution processes
Clause 28: Mediation, conciliation or case appraisal of disputes
Subclause (1) requires the Tribunal to conduct a mediation, conciliation, or case
appraisal of a dispute if an application is made for that mediation, conciliation or case
appraisal in the circumstances permitted by Subdivision B of Division 3 of Part 3, and
the application is made in accordance with Division 7 of Part 3.
Subclause (2) requires the participants in the mediation, conciliation or case appraisal
to act in good faith in relation to the conduct of the mediation, conciliation or case
appraisal.
Clause 29: Practice and procedure of National Sports Tribunal in mediation,
conciliation or case appraisal
This clause allows the CEO to make a determination in relation to the practice and
procedure of the Tribunal in conducting a mediation, conciliation or case appraisal of
a dispute, and requires the members of the Tribunal to comply with such a
determination. The CEO's determination is a notifiable instrument.
Clause 30: Evidence not admissible
For mediation, conciliation and case appraisal to be successful it is important that
participants feel that they are able to speak freely and put forward relevant
information. The intention of this clause is to promote candour. It provides that
anything said, or any act done in mediation, conciliation or case appraisal of a dispute
before the Tribunal is not admissible in any court, or in any arbitration of the dispute
by the Tribunal. However, it does not cause things said or done in a mediation,
conciliation or case appraisal to be inadmissible in later arbitration before the Tribunal
if the parties to the arbitration agree to those matters being admissible.
Division 6-- Appeals Division
Subdivision A--Appealing decisions about anti-doping matters
The Bill will provide a pathway for appeals from the Tribunal's Anti-Doping Division
to generally be able to be heard by the Appeals Division of the Tribunal.
However, it should be noted that the Code permits WADA and relevant international
sporting federations to appeal directly to CAS, thereby bypassing the Tribunal. The
Bill will not prevent this from occurring.
Where parties agree, the Bill will also provide a pathway for certain anti-doping
decisions of sporting bodies and internal tribunals of sporting bodies to be appealed to
the Appeals Division of the Tribunal.
Clause 31: Appealing decisions made in Anti-Doping Division
Subclause (1) deals with the circumstance where the Tribunal has made a
determination at first instance in relation to an anti-doping dispute, and the anti-
doping policy of the sport permits an appeal to the Appeals Division of the Tribunal.
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In this case, a party to the arbitration, or another person or body permitted to do so by
the anti-doping policy, can appeal the determination. The reference to 'other person or
body' is a reference to persons or bodies that Art 13 of the Code specifies may also
appeal decisions - for example, ASADA, an international sporting federation, or
WADA.
Subclause (2) deals with the circumstance where the Tribunal has made a
determination at first instance, and the anti-doping policy of the sport does not permit
an appeal to the Appeals Division of the Tribunal. Where the athlete or support
person, the sporting body and the ASADA CEO have agreed in writing that an appeal
is able to be made to the Appeals Division of the Tribunal, a party to the original
arbitration, or any other person or body specified in that agreement as being able to
make such an appeal, may appeal to the Appeals Division.
Subclause (4) provides that if the appeal is under subclause (1), the parties to the
appeal are the parties to the original arbitration, the applicant (if they were not a party
to the arbitration), and any other person or body that is permitted under the anti-
doping policy to participate in an appeal of that kind, that advises the Tribunal in
writing that they wish to be a party to the appeal.
Where the appeal is under subclause (2), the parties to the appeal are the parties to the
original arbitration, the applicant (if they were not a party to the arbitration), and any
other person or body specified in the agreement as being able to make an appeal, that
advises the Tribunal in writing that they wish to be a party to the appeal.
Clause 32: Appealing decisions made by sporting bodies
In the context of anti-doping, there are certain decisions that are able to be made by a
sporting body, without the need for a hearing. These include, for example, a decision
to impose consequences (ie, a sanction) for an anti-doping rule violation, a decision
not to impose consequences for an anti-doping rule violation, or a decision not to take
forward a matter as an anti-doping rule violation. Article 13.2.2 of the Code (as
replicated in the anti-doping policies of sports) relevantly provides that appeals from
decisions made by a sporting body in relation to national level athletes are able to be
appealed to a national level appeal body.
Subclause (1) deals with the case where the anti-doping policy permits an appeal from
a decision of a sporting body to the Appeals Division of the Tribunal. An appeal may
be made by any person or body permitted by the anti-doping policy to do so.
Subclause (2) deals with the case where the anti-doping policy does not permit an
appeal to the Appeals Division of the Tribunal. (For example, the anti-doping policy
might provide a right of appeal to CAS.) Where the athlete or support person, the
sporting body and the ASADA CEO have agreed in writing that the appeal is able to
be made to the Appeals Division of the Tribunal from the decision, and the decision is
of a kind that the World Anti-Doping Code permits an appeal from, the athlete,
support person or ASADA CEO, or any other person specified in the agreement, can
appeal the decision.
Subclause (4) provides that the parties to such an appeal are the athlete or support
person, the sporting body, the ASADA CEO and the applicant (where the applicant is
none of the preceding persons or bodies).
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Where the appeal is under subclause (1), the parties also include any other person or
body that is permitted under the anti-doping policy to participate in an appeal of that
kind, and that advises the Tribunal in writing that they wish to be a party to the
appeal.
Where the appeal is under subclause (2), the parties also include any other person or
body specified in the agreement in paragraph (2)(h) as being able to make an appeal to
the Appeals Division, and that advises the Tribunal in writing that they wish to be a
party to the appeal.
Subclause (5) provides that the appeal is to be heard in the Appeals Division.
Clause 33: Appealing decisions made by sporting tribunals
Subclause (1) deals with the circumstance where an anti-doping tribunal of a sporting
body has made a determination at first instance, and the anti-doping policy of the
sport permits an appeal from that determination to the Appeals Division of the
Tribunal. In this case, a party to the arbitration (ie, the athlete or support person, or the
ASADA CEO), or another person or body permitted to do so by the anti-doping
policy, can appeal the determination. The reference to 'other person or body' is a
reference to persons or bodies that Art 13 of the Code specifies may also appeal
decisions - for example, ASADA, an International Sporting Federation, or WADA.
Subclause (2) deals with the circumstance where an anti-doping tribunal of a sporting
body has made a determination at first instance, and the anti-doping policy of the
sport does not permit an appeal to the Appeals Division of the Tribunal. Where the
athlete or support person, the sporting body and the ASADA CEO have agreed in
writing that an appeal is able to be made to the Appeals Division of the Tribunal, and
the decision is of a kind that the World Anti-Doping Code permits an appeal from, the
athlete or support person, the sporting body, the ASADA CEO, or any other person or
body specified in that agreement as being able to make such an appeal, may appeal to
the Appeals Division.
Subclause (4) provides that the parties to such an appeal are the athlete or support
person, the sporting body, the ASADA CEO, and the applicant (where the applicant is
none of the preceding persons or bodies).
Where the appeal is under subclause (1), paragraph (4)(e) provides that the parties
also include any other person or body that is permitted under the anti-doping policy to
participate in an appeal of that kind, and that advises the Tribunal in writing that they
wish to be a party to the appeal.
Where the appeal is under subclause (2), paragraph (4)(f) provides that the parties also
include any other person or body specified in the agreement in paragraph (2)(h) as
being able to make an appeal to the Appeals Division, and that advises the Tribunal in
writing that they wish to be a party to the appeal.
Subclause (5) provides that the appeal is to be heard in the Appeals Division.
Subdivision B--Appealing decisions about other matters
Clause 34: Appealing decisions made in General Division
This clause applies either where the first instance arbitration was of a dispute between
a person and a sporting body, or where the first instance arbitration was of a dispute
35
between 2 or more persons. Subclause (1) provides that where one or more of the
constituent documents provides for appeal to the Appeals Division, or the person and
the sporting body otherwise agree, in writing, a party to the arbitration can appeal to
the Appeals Division.
Subclause (2) deals with the case where none of the constituent documents of the
sport provide for an appeal to the Appeals Division. If the parties to the arbitration
agree in writing that an appeal is able to be made to the Appeals Division of the
Tribunal, a party to the original arbitration, or any other person or body specified in
the agreement as being able to make such an appeal, can appeal to the Tribunal.
Subclause (4) provides that the parties to the appeal are the parties to the first instance
arbitration, and the applicant (where the applicant was not a party to that arbitration).
Subclause (5) makes clear that the appeal is to be heard in the Appeals Division of the
Tribunal.
Where the appeal is made under subclause (1), paragraph (4)(c) provides that the
parties to the appeal also include any other person or body that is permitted under a
relevant constituent document to make an appeal to the Appeals Division, and advises
the Tribunal in writing that they wish to be a party to the appeal.
Where the appeal is made under subclause (2), paragraph (4)(d) provides that the
parties to the appeal also include persons or bodies specified in the agreement as
being able to make an appeal, if they notify the Tribunal in writing that they wish to
be a party to the appeal.
Clause 35: Appealing decisions made by sporting tribunals
This clause deals with the circumstance where a sporting tribunal administered by a
sporting body has arbitrated a dispute between a person and a sporting body.
Subclause (1) provides that where one or more of the constituent documents that bind
the person and the sporting body provide for an appeal to be made to the Appeals
Division of the Tribunal, the person, the sporting body, or any other person permitted
by a constituent document to do so may appeal to the Tribunal from a sporting
tribunal decision.
Subclause (2) provides that where no constituent document permits an appeal to the
Appeals Division of the Tribunal, but the parties have agreed in writing that an appeal
is able to be made to the Appeals Division of the Tribunal, the person or sporting
body, or any other person or body specified in the agreement as being able to appeal,
can appeal to the Tribunal.
Subclause (4) provides that the parties to the appeal are the person, sporting body and
the applicant (where the applicant is not a person or sporting body). Subclause (5)
makes clear that the appeal is to be heard in the Appeals Division of the Tribunal.
Where the appeal is made under subclause (1), paragraph (4)(d) provides that the
parties to the appeal also include any other person or body that is permitted under a
relevant constituent document to make an appeal to the Appeals Division, and advises
the Tribunal in writing that they wish to be a party to the appeal.
Where the appeal is made under subclause (2), paragraph (4)(e) provides that the
parties to the appeal also include persons or bodies specified in the agreement as
36
being able to make an appeal, if they notify the Tribunal in writing that they wish to
be a party to the appeal.
The dispute must either be of a kind prescribed by the rules for the purposes of this
clause, or be approved by the CEO in writing. The CEO is not permitted to approve a
particular dispute which is of a kind prescribed by the rules for the purpose of
subclause (6). Subclause (7) provides that the CEO can only approve a dispute if
satisfied that there are exceptional circumstances justifying the giving of approval.
Requiring the disputes that may be appealed to be prescribed by type in the rules, or
otherwise approved on a case by case basis by the CEO, is intended to ensure that the
Tribunal is not used to arbitrate disputes that are inappropriate for arbitration by the
Tribunal, such as matters more appropriate for resolution in courts of law, and matters
that are more appropriately dealt with at a sport level.
Subclause (8) makes clear that the CEO's approval is not a legislative instrument.
This provision has been included to assist readers, as the instrument is not a legislative
instrument within the meaning of s 8(1) of the Legislation Act 2003.
Subdivision C - Arbitration of disputes in Appeals Division
Clause 36: Arbitration of disputes in Appeals Division
Subclause (1) provides that, where an application for appeal is made to the Tribunal in
accordance with the requirements set out in the Bill, the Tribunal must conduct an
arbitration of the dispute and make a written determination in relation to the dispute.
Subclause (2) provides that the determination takes effect on the day specified in it,
while subclause (3) requires the Tribunal to give the parties to the appeal written
notice of the determination.
Subclause (4) provides for the Tribunal to terminate an arbitration where the parties to
the appeal agree to the termination, or in circumstances prescribed by the rules.
Subclause (5) provides that the Tribunal will be able to suspend an arbitration in
circumstances prescribed by the rules. An example of a circumstance that is to be
prescribed by the rules is where the Tribunal considers that it is appropriate to refer an
appeal in respect of a General Division dispute to mediation or conciliation, before it
is arbitrated.
Division 7--Making applications
Clause 37: Form of applications
This clause sets out requirements in relation to which applications to the Tribunal for
arbitration in the Anti-Doping, General or Appeals Divisions, or for mediation,
conciliation or case appraisal in the General Division, must comply. In addition to the
requirements specified in paragraphs (a)-(d), an application must comply with any
other requirements prescribed by the rules for the purposes of this clause. The
Tribunal is not required to arbitrate or provide mediation, conciliation or case
appraisal in relation to a dispute if the requirements set out in this clause are not met.
Clause 38: Time limit on applications
This clause sets out time limits pertaining to applications to the Tribunal.
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Subclauses (2) and (3) provide that applications for arbitration of disputes are to be
made to the Anti-Doping Division or the General Division within the timeframe set
out in the anti-doping policy or relevant constituent document, or in any other case,
within the timeframe set out for this purpose in the rules. These provisions are
expressed to operate subject to subclause (5) - in other words, if the deadline for
making an application worked out under subclause (2) or (3) would occur after the
end of the period of the operation of the tribunal (ie, 2 years from commencement),
the application is required to be made before the end of the 2 year period.
Subclause (4) provides that an application to the Appeals Division must be made
within the timeframe set out in the anti-doping policy or relevant constituent
document, or in any other case, within the timeframe set out in the rules.
Subclause (5) prevents applications from being made to the Tribunal for arbitration by
the Anti-Doping Division or General Division, or for mediation, conciliation or case
appraisal in the General Division, from 2 years after the commencement of this
clause, unless a rule is made prescribing a larger number of years (in which case
applications cannot be made once the larger number of years has passed). This
provision provides for the orderly termination of Tribunal operations, including the
finalisation of matters currently on foot, unless a rule is made to extend the operation
of the Tribunal.
Provided that an application was made within the 2 year period, the Tribunal will be
required to arbitrate the application, even if the arbitral process extends beyond the 2
year period.
Division 8-- Manner of conducting arbitration
Clause 39: Scope of Division
This clause makes clear that the Division applies in relation to an arbitration of a
dispute before the Tribunal.
Clause 40: General principles relating to arbitration
This clause allows the Tribunal to determine its own procedure for arbitrations (other
than where the Act imposes procedural requirements, eg, through a practice and
procedure determination made under the following clause).
However, this clause also imposes an overarching requirement that Tribunal
arbitration proceedings be conducted with minimum formality and technically,
maximum expedition, and at minimum cost to the parties as possible, while still
ensuring proper consideration of the matters before the Tribunal. This obligation is
imposed because one of the primary purposes of establishing the Tribunal is to ensure
that the Australian sporting community has access to arbitration that is timely,
reliable, efficient and cost-effective.
This clause provides that the Tribunal is not bound by the rules of evidence and that it
may inform itself on any matter in such manner as it thinks appropriate. This may
include, for example, asking parties to make written or oral submissions, conducting
non-coercive inquiries or commissioning research. The Tribunal also has coercive
information-gathering powers conferred elsewhere in the Act.
38
Subclause (2) imposes a requirement on the parties to an arbitration to act in good
faith in relation to the conduct of the arbitration.
Clause 41: CEO's determination about practice and procedure of National
Sports Tribunal in arbitration
This clause provides for the CEO to make a determination in relation to the practice
and procedure of the Tribunal in an arbitration of a dispute. The determination is a
notifiable instrument, and Tribunal members are required to comply with it.
Subclause (3) sets out certain matters that may be dealt with by a CEO's practice and
procedure determination, but is not exhaustive. That is, the CEO may make a
determination under this clause in relation to the practice and procedure of the
Tribunal even if it does not deal with one of the matters listed at subclause (3).
It is expected that, to the extent it deals with anti-doping matters, a determination
dealing with the practice and procedure of the Tribunal will be made consistent with
the Code.
Subclause (4) displaces subsection 14(2) of the Legislation Act 2003, in its application
to a determination under subclause (2). Subsection 14(2) of the Legislation Act 2003
relevantly provides that, unless the contrary intention appears, a notifiable instrument
may not make provision in relation to a matter by applying, adopting or incorporating
any matter contained in an instrument or other writing as in force or existing from
time to time.
While its final content will be determined by the CEO, it is envisaged that the kinds of
documents that are to be incorporated by reference in a determination will be
documents that are publicly available, for no cost. An example of a document that
may be incorporated by reference into a determination is the World Anti-Doping
Code, which is varied from time to time, and can be found at www.wada-ama.org.
Clause 42: Members may give notices
This clause gives a Tribunal member who is carrying out an arbitration the power to
issue a written notice to a person, requiring that person to appear before the Tribunal
at a specified time and place and give evidence. The Tribunal member must
reasonably believe that the person is capable of giving evidence relevant to the
dispute.
The clause also permits a Tribunal member who is carrying out an arbitration to issue
a written notice to a person, requiring that person to give to the Tribunal information,
or produce to the Tribunal documents or things, in accordance with the notice. The
member may only issue such a notice if the member reasonably believes that the
person has information, documents or things relevant to the dispute.
Subclause (3) provides for the notice and content requirements of such notices.
Clause 43: Failure to comply with notice
Subclause (1) makes it an offence for a person to fail to comply with a notice given to
them under the preceding clause. The offence carries a maximum penalty of
imprisonment for 12 months.
Subclause (2) is a civil penalty provision that is contravened if a person fails to
comply with a notice given to them under the preceding clause. Due to the operation
39
of subclause 48(1), subclause (2) is enforceable under Part 4 of the Regulatory
Powers (Standard Provisions) Act 2014 (RP Act). Under Part 4 of the RP Act, an
authorised applicant (the CEO - see subclause 48(2)) may apply to a relevant court
(the Federal Court of Australia or the Federal Circuit Court of Australia - see
subclause 48(5)) for an order that a person, who is alleged to have contravened a civil
penalty provision, pay the Commonwealth a pecuniary penalty. In this case, the
relevant penalty will be up to 60 penalty units for an individual and up to 300 penalty
units for a body corporate - see section 82 of the RP Act.
Equipping the Tribunal with powers to compel evidence from third parties provides
for superior dispute resolution capacity. This is particularly important in cases that are
reliant on intelligence-based evidence. Penalties are important in deterring third
parties who may be reluctant to provide information or produce documents or things,
from failing to comply with a notice.
In this context, regard has been had to similar provisions in the Administrative
Appeals Tribunal Act 1975 (AAT Act) - for example, subsection 61(1) sets set out a
similar offence for failing to comply with a summons, with a (criminal) pecuniary
penalty of 60 penalty units, 12 months' imprisonment, or both.
The level of the civil penalty has been set at a level intended to achieve the objective
of deterrence, and taking into account the need for court proceedings to enforce the
penalty.
In establishing both an offence and a civil penalty provision for a contravention of
clause 43, the Bill will enable the CEO to choose, in any particular case, the
enforcement mechanism that would be most conducive to securing compliance with
the provision.
Common law privilege against self-incrimination not abrogated
Under the common law privilege against self-incrimination, a natural person cannot
be required to give information, or produce a document or thing, where the giving of
that information or the production of that document or thing might tend to incriminate
that person. This common law privilege will not be affected by the Act.
The privilege against self-incrimination can only be abrogated by using express words
in legislation. Because the privilege against self-incrimination can only be abrogated
by express provision, it is not legally necessary for the Act to specifically state that
the privilege is not affected. This position reflects modern Commonwealth drafting
practice.
Consequently, a natural person to whom a notice has been issued may refuse to
provide information or a document or a thing to the Tribunal, on the basis that by
doing so the person may incriminate themselves.
However, the privilege against self-incrimination does not apply where it is alleged
that a person has given false or misleading information, where a person voluntarily
provides information or documents, or to bodies corporate.
Clause 44: Refusal to be sworn or answer questions
Subclauses (1) and (3) make it an offence for a person appearing as a witness before
the Tribunal to fail to take an oath, make an affirmation or answer a question if
40
required to do so by the Tribunal. The offences set out in these subclauses both carry a
maximum penalty of imprisonment for 12 months.
Subclauses (2) and (4) are civil penalty provisions, which are contravened if a person
appearing as a witness before the Tribunal fails to take an oath, make an affirmation
or answer a question after being required to do so by the Tribunal. Due to the
operation of subclause 48(1), subclause (2) is enforceable under Part 4 of the RP Act.
Under Part 4 of the RP Act, an authorised applicant (the CEO - see subclause 48(2))
may apply to a relevant court (the Federal Court of Australia or the Federal Circuit
Court of Australia - see subclause 48(5)) for an order that a person, who is alleged to
have contravened a civil penalty provision, pay the Commonwealth a pecuniary
penalty. In this case, the relevant penalty will be up to 60 penalty units for an
individual and up to 300 penalty units for a body corporate - see section 82 of the RP
Act.
It is important for the integrity of Tribunal proceedings that persons who appear
before it in the context of disputes are prepared to give truthful evidence, and answer
questions that the Tribunal requires them to answer. The level of penalty has been set
with the aim of deterring non-compliance with the requirement to take an oath or
affirmation, and the requirement (if imposed by the Tribunal) to answer questions. In
this context, regard has been had to similar provisions in the AAT Act - for example,
subsections 62(1) and 62(3) set out similar offences, each with a (criminal) pecuniary
penalty of 60 penalty units, 12 months' imprisonment, or both. The level of the civil
penalty has also been set having regard to the potential cost of court proceedings, in
the event that the provisions are contravened.
However, unlike the AAT Act, the Bill establishes both an offence and a civil penalty
provision for contravention of clause 44. In so doing, the Bill will enable the CEO to
choose, in any particular case, the enforcement mechanism that would be most
conducive to securing compliance with the provision. For example, in a case where a
person refuses to be sworn or refuses to make an affirmation, the deterrent effect of a
civil penalty may not be sufficient, and the retributive effect of a prison sentence may
be more conducive to securing compliance with this requirement.
As discussed above, under the common law privilege against self-incrimination, a
natural person cannot be required to give information that would tend to incriminate
that person. This common law privilege will not be affected by the Act. Consequently,
a natural person who has been required to answer a question may refuse to answer that
question on the basis that by doing so the person may incriminate themselves.
Clause 45: False or misleading evidence
This clause makes it an offence for a witness appearing before the Tribunal to give
evidence that the witness knows is false or misleading. The offence carries a
maximum penalty of imprisonment for 12 months.
Division 9--Costs
Clause 46: Charging costs of an arbitration
It is intended that the CEO have the capacity to charge parties to an arbitration for
some or all of the costs incurred in conducting the arbitration. This clause permits the
rules to provide for the CEO to impose such charges, for how charges are to be
41
apportioned between one or more of the parties, and for waiver of the charge (eg, in
circumstances of financial hardship). These charges must not amount to taxation.
Clause 47: Charging costs of alternative dispute resolution processes
It is intended that the CEO have the capacity to charge participants to a mediation,
conciliation or case appraisal for some or all of the costs incurred in conducting the
relevant process. This clause permits the rules to provide for the CEO to impose such
charges, for how charges are to be apportioned between participants, and for waiver of
the charge (eg, in circumstances of financial hardship). These charges must not
amount to taxation.
Division 10--Civil penalty provisions
Clause 48: Civil penalty provisions
Subclause (1) provides that each civil penalty provision of the Act (ie,
subclauses 43(2), 44(2) and 44(4)) is enforceable under Part 4 of the Regulatory
Powers (Standard Provisions) Act 2014 (RP Act). Under Part 4 of the RP Act, an
authorised applicant may apply to a relevant court for an order that a person, who is
alleged to have contravened a civil penalty provision, pay the Commonwealth a
pecuniary penalty.
Subclauses (2) and (5) provide, for the purposes of Part 4 of the RP Act that the CEO,
on behalf of the Commonwealth, is an authorised applicant, and that the Federal Court
of Australia and the Federal Circuit Court of Australia are each a relevant court.
Subclause (3) permits the CEO to delegate the CEO's powers and functions as an
authorised applicant to an SES employee, or an acting SES employee in the
Department. Subclause (4) requires a delegate to comply with any written directions
of the CEO.
Division 11--Infringement notices
Clause 49: Infringement notices
Under subclause (1), each civil penalty provision of the Act (ie, subclauses 43(2),
44(2) and 44(4)) is subject to an infringement notice under Part 5 of the Regulatory
Powers (Standard Provisions) Act 2014. Part 5 of the Regulatory Powers Act sets out
a standard framework under which infringement notices can be issued. Amongst other
things, Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 provides the
following:
if an infringement officer believes on reasonable grounds that a person has
contravened a provision subject to an infringement notice under this Part, the
infringement officer may give to the person an infringement notice for the
alleged contravention
if the person to whom an infringement notice for an alleged contravention of a
provision is given pays the amount stated in the notice before the end of the
specified period, proceedings seeking a civil penalty order may not be brought
in relation to the alleged contravention
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a person to whom an infringement notice has been given may apply to the
relevant chief executive for an extension of the time within which the relevant
amount can be paid
a person to whom an infringement notice has been given may make written
representations to the relevant chief executive seeking the withdrawal of the
notice.
Subclauses (2)-(5) provide that, for the provisions of the Act subject to an
infringement notice, the CEO is an infringement officer, the CEO is the relevant chief
executive, and the CEO may delegate the CEO's powers and functions of either role
to an SES employee, or an acting SES employee in the Department. A delegate is
required to comply with any written directions of the CEO.
Permitting the facility for the issuing of infringement notices will enable the CEO of
the Tribunal to deal with contraventions of the civil penalty provisions of the Act
without the need to go to court.
Part 4--Administration of the National Sports Tribunal
Division 1--Simplified outline of this Part
Clause 50: Simplified outline of this Part
This clause provides an overview of Part 4 of the Bill. It should be noted that, while
this outline is included to assist readers to understand the legislation, readers should
rely on the substantive provisions of the Part following the simplified outline.
Division 2--Chief Executive Officer
Clause 51: Chief Executive Officer
This clause provides that there is to be a Chief Executive Officer of the Tribunal.
Clause 52: Functions of CEO
Subclause (1) sets out the functions of the CEO. In addition to such other functions
conferred on the CEO by the Act, the rules or other provisions of Commonwealth
legislation, the CEO has the functions of managing the administration and operation
of the Tribunal and assisting the Tribunal in the performance of its functions. The
CEO also has the function of doing anything incidental or conducive to the
performance of the abovementioned functions.
Subclause (2) sets out certain functions that the CEO is required to perform. These
include, at paragraphs (a)-(c), allocating Tribunal members for the purposes of a
proceeding, nominating a member to preside at the proceeding and reconstituting the
Tribunal for the purposes of a proceeding in certain circumstances. Subclause (4)
requires the CEO to determine principles as to how the CEO is to perform the
functions set out a paragraphs (a)-(c), and subclause (3) requires the CEO to comply
with these principles.
Paragraph (d) of subclause (2) requires the CEO to promote the services of the
Tribunal to athletes, support persons, national sporting organisations and any other
persons or bodies the CEO considers appropriate.
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Paragraph (e) of subclause (2) requires the CEO to establish and maintain a panel of
legal practitioners who are willing to provide free legal assistance to the parties in a
proceeding before the Tribunal. The intention is that such a panel would allow parties
to disputes before the Tribunal to obtain high quality legal representation without
incurring significant costs.
Clause 53: Powers of CEO
This clause provides that the CEO has power to do all things necessary or convenient
to be done for or in connection with the performance of the CEO's functions.
Clause 54: Appointment of CEO
Subclause (1) provides for the CEO to be appointed by the Minister by written
instrument. The CEO must be appointed on a full-time basis.
Subclause (2) provides that the CEO holds office for the period specified in their
instrument of appointment, which may be up to 5 years. Because the Tribunal will
initially be established as a pilot, and the period of the pilot will be 2 years, the initial
CEO appointment will be for 2 years or less.
Clause 55: Acting appointments
This clause provides for the appointment of a person (other than a member) to act as
the CEO in certain specified circumstances, such as where there is a vacancy in the
office of CEO. This ensures that the Tribunal can continue to operate smoothly in the
absence of a CEO.
Clause 56: Remuneration
This clause provides for the CEO to be paid the remuneration that is to be determined
by the Remuneration Tribunal. In the absence of such a determination, subclause (4)
permits the Minister to prescribe the CEO's remuneration by means of the legislative
instrument.
Clause 57: Leave
This clause provides for the CEO to have the recreation leave entitlements that are
determined by the Remuneration Tribunal. The Minister will be able to grant the CEO
leave of absence (other than for recreation leave) on the terms and conditions
determined by the Minister.
Clause 58: Other terms and conditions
This clause allows the Minister to set terms and conditions on which the CEO holds
office, other than to the extent those terms and conditions are provided for by the Act.
Clause 59: Other paid work
This clause requires the CEO to obtain the Minister's approval before engaging in
paid work outside the duties of the CEO's office. Because the CEO holds their office
on a full-time basis, it is expected that the CEO will not generally seek to engage in
paid work outside the duties of that office. If the CEO does wish to engage in other
paid work, it is important that they seek the Minister's approval, so that the Minister
can ensure that the other paid work will not impinge on the CEO's capacity to carry
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out their functions, and to ensure that there is no question of that other work being in
conflict, or perceived conflict with the proper performance of the CEO's functions.
Clause 60: Disclosure of interests to the Minister
The CEO will be an official of a Commonwealth entity for the purposes of the PGPA
Act, and the PGPA Act will therefore impose various obligations on the CEO.
However, subclause (2) disapplies section 29 of the PGPA Act. This provision
requires an official of a Commonwealth entity to disclose material personal interests
that relate to the affairs of the entity. Under section 16 of the Public Governance,
Performance and Accountability Rule 2014, an official of a Commonwealth entity
who is not the accountable authority, or a member of the accountable authority, is
required to disclose such an interest in accordance with any instructions given by the
accountable authority of the entity. Because the Tribunal will operate independently
of the Department, it will not be appropriate for the CEO to disclose relevant interests
in accordance with these instructions. Rather, it is appropriate for the CEO to disclose
relevant interests to the Minister: subclause (1) provides for this.
Clause 61: Resignation of appointment
This clause sets out the process for, and time of effect of, the CEO's resignation.
Clause 62: Termination of appointment
This clause sets out the circumstances in which the Minister may terminate the
appointment of the CEO. These include; misbehaviour, circumstances in which the
CEO has engaged in paid work without the Minister's approval in breach of the Act,
and circumstances in which the member fails, without reasonable excuse, to disclose
interests to the CEO in accordance with the Act.
In Vanstone v Clark (2006) 224 ALR 666, the Full Court of the Federal Court
concluded that for conduct to be regarded as 'misbehaviour' in the general sense it
must bear on the person's capacity to hold office and the question must be considered
with reference to the particular office (at 673, 721)). The reference to 'misbehaviour'
can apply to misbehaviour in the course of performing duties of the office, as well as
misbehaviour out of office (eg the commission of a serious criminal offence) which
affects the perceptions of others in relation to the office so that any purported
performance of the office will be perceived as corrupt, improper or inimical to the
interests of the persons, or the organisation for whose benefits the functions are
performed (at 708); see also Clark v Vanstone (2004) 211 ALR 412 at 440-441).
Clause 63: Application of the finance law etc.
Subclause (1) provides that the CEO is taken to be an official of the Department for
the purposes of the PGPA Act. This means that, subject to the Act (eg, in relation to
the disclosure of interests), the PGPA Act will impose various obligations on the
CEO.
Under subclause (2), the Secretary of the Department will be required to include
information about the operation of the Tribunal in the Department's annual report
under section 46 of the PGPA Act.
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Clause 64: Directions to CEO
Subclause (1) provides that the Minister, may, by legislative instrument, give
directions to the CEO in relation to the performance of the CEO's functions or
powers. Such a direction cannot relate to a particular athlete, support person or
sporting body, or to a particular dispute before the Tribunal: subclause (2). The CEO
is required to comply with a direction.
Subclause (4) provides that the CEO is not subject to the directions of the Secretary of
the Department in relation to the CEO performing the CEO's functions.
Clause 65: Delegation by CEO
This clause permits the CEO to delegate, in writing, any of the CEO's functions or
powers under the Act, or the rules made under the Act, to an SES employee, or an
acting SES employee, in the Department.
Division 3--Persons assisting the Chief Executive Officer
Clause 66: Arrangements relating to staff of the Department
Subclause (1) provides for the CEO to be assisted in performing their functions by
Australian Public Service employees in the Department, whose services the Secretary
makes available for that purpose. Subclause (2) makes it clear that, when providing
assistance to the CEO, these employees are subject to the directions of the CEO,
rather than the Secretary of the Department.
Clause 67: Other persons assisting the CEO
Subclause (1) provides for the CEO to be assisted in performing their functions by
employees of Agencies (within the meaning of the Public Service Act 1999), officers
or employees of a State or Territory and officers or employees of bodies or
organisations of the Commonwealth, a State or a Territory, where the services of such
officers or employees are made available to the CEO in connection with the
performance of any of the CEO's functions.
Subclause (2) makes it clear that, when providing assistance to the CEO, these
employees and officers are subject to the directions of the CEO, rather than any other
person, such as the Secretary of the Department or the chief executive of the
Commonwealth, State or Territory body or organisation.
Clause 68: Consultants and expert witnesses
This clause permits the CEO, on behalf of the Commonwealth, to engage persons as
consultants to the CEO, or expert witnesses in relation to a dispute before the
Tribunal, provided they have suitable qualifications and experience. The CEO can
determine, in writing, the terms and conditions of the engagement of such persons.
Part 5--Other matters
Clause 69: Simplified outline of this Part
This clause provides an overview of Part 5 of the Bill. It should be noted that, while
this outline is included to assist readers to understand the legislation, readers should
rely on the substantive provisions of the Part following the simplified outline.
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Clause 70: Obstruction etc. of National Sports Tribunal
Subclause (1) makes it an offence for a person to obstruct, hinder, intimidate or resist
the Tribunal or a member in the performance of the member's duties. The offence
carries a maximum penalty of imprisonment for 12 months.
Clause 71: Intimidation etc. of witnesses or other persons
The purpose of this clause is to protect witnesses appearing before the Tribunal from
untoward behaviour, and to protect the integrity of Tribunal proceedings. It makes it
an offence for a person to take certain actions in relation to another person on account
of that other person having appeared, or being about to appear, as a witness in a
proceeding before the Tribunal. The offence carries a maximum penalty of
imprisonment for 12 months.
Clause 72: Secrecy
The purpose of this clause is to protect the privacy and reputation of the parties.
Information relating to claims may be of a highly personal nature (including health
and medical records) or may have the potential to impact adversely on the parties (eg,
with respect to future selection).
This clause makes it an offence for an entrusted person to make a record of, disclose
or otherwise use protected information, unless certain exceptions apply.
Protected information is defined in clause 5 to mean information that:
- was obtained by a person in their capacity as an entrusted person; and
- relates to the affairs of a person (except a person in the person's capacity as
an entrusted person); and
- identifies, or is reasonably capable of being used to identify, the person to
whom the information relates.
An entrusted person is defined in clause 5 to mean:
- the CEO
- a member of the Tribunal
- a person assisting the CEO in accordance with clause 63 or 64 of the Act
- a person engaged as a consultant, or an expert witness, under clause 65 of the
Act.
The maximum penalty for the offence is imprisonment for 2 years.
Subclauses (2), (3) and (4) set out exceptions to the prohibition on disclosure. They
also have the effect that the defendant in a proceeding for an offence under this
provision has the evidential burden in relation to these matters. The placement of the
evidential burden on the defendant can be justified in this instance because it will not
reasonably be possible for a prosecution to disprove every conceivable source of
authority in many cases, when that information is within the knowledge of the
entrusted person who made the disclosure. In the event that the prosecution was
required, in such circumstances, to disprove that the disclosure was unlawful, it would
be significantly more difficult and costly for the prosecution to disprove the matter.
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In order to protect protected information effectively, it is reasonable, necessary and
proportionate to require a defendant to adduce or point to evidence that suggests a
reasonable possibility that one of the exceptions listed in subclause 72(2) applies.
Subclause (5) provides that, except where it is necessary to do so for the purposes of
giving effect to this Act, a person is not to be required to produce a document
containing protected information to a court, or to disclose protected information to a
court.
Clause 73: Protection and immunity
This clause provides certain protections and immunities to:
- Tribunal members
- barristers, solicitors or other persons appearing before the Tribunal on behalf
of a party
- a person appearing before the Tribunal as a witness.
The protections and immunities conferred on High Court Justices include substantial
immunity from being sued for their acts within jurisdiction. If Tribunal members were
not provided with a similar immunity, this would provide an incentive for persons
dissatisfied with the outcome of an arbitration to sue individual members of the
Tribunal. This in turn would be likely to substantially hinder the Tribunal's
operations, in that it would discourage persons agreeing to sit as Tribunal members (at
least in the absence of the Commonwealth agreeing to indemnify those members).
The protections and immunities conferred on a barrister in appearing for a party in
proceedings in the High Court include a limited form of advocates' immunity. It is
appropriate for equivalent protections to be conferred on persons appearing before the
Tribunal, as the work and risks associated with representation before the Tribunal are
similar to those of a barrister providing representation before a court. Similarly,
witnesses enjoy certain immunities when appearing before the High Court. It is
appropriate for witnesses appearing before the Tribunal to be protected in an
equivalent manner, to ensure that witnesses are not discouraged from appearing
before the Tribunal and providing candid evidence by, for example, threats of being
sued for defamation by a party to the dispute.
Other Commonwealth legislation confers equivalent protections and immunities on
non-judicial bodies, as well as the barristers, solicitors and witnesses appearing before
them. These include:
- section 60 of the Administrative Appeals Tribunal Act 1975, which confers
the same respective protections and immunities on a member of the
Administrative Appeals Tribunal, a barrister, solicitor or other person
appearing before the Tribunal on behalf of a party and a person summoned to
attend or appearing before the Tribunal as a witness
- section 167 of the Veterans' Entitlements Act 1986, which confers the same
respective protections and immunities on a member of the Veterans' Review
Board, a person representing a party at a hearing of a review before the
Board and a person summoned to attend or appearing before the Board as a
witness
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- section 171 of the Copyright Act 1968, which confers the same respective
protections and immunities on a member of the Copyright Tribunal of
Australia, a barrister, solicitor or other person appearing before the Tribunal
on behalf of a party and a person summoned to appear before the Tribunal as
a witness
- section 584B of the Fair Work Act 2009, which confers the same protections
and immunities on persons undertaking the management of complaints
against a Member of the Fair Work Commission, as well as witnesses and
relevant legal representatives.
Clause 74: Protection from civil actions
This clause ensures that certain persons are not liable to an action or other proceeding
for damages for or in relation to certain acts done or omitted to be done in good faith.
The relevant acts are those done in the performance or purported performance of any
function of the CEO, or in the exercise or purported exercise of any power of the
CEO. The persons given protection by this clause are the CEO, persons assisting the
CEO in accordance with clause 66 or 67 and persons engaged as consultants, or expert
witnesses engaged to assist the Tribunal in relation to a dispute, under clause 68.
The protection afforded by this clause is broad, and appropriately so. For example, in
particularly contentious disputes, a person should not be able to take collateral
proceedings against the CEO and others, either to delay the Tribunal's consideration
of a dispute, or as an attempt to reopen a dispute that was arbitrated by the Tribunal.
Similar protections can be found in other Commonwealth legislation. Examples
include:
section 110Q of the Defence Act 1903, which confers similar protections on
the Inspector-General ADF, and a person acting under the authority of the
Inspector-General ADF,
section 74T of the Broadcasting Services Act 1992, which confers similar
protections on the Commonwealth, the Australian Communications and Media
Authority (ACMA) and ACMA officials in respect of the exercise of functions
associated with the maintenance of the Register of Foreign Owners of Media
Assets.
Clause 75: Rules
This clause permits the Minister to make rules prescribing matters required or
permitted by the Act to be prescribed by the rules, or necessary or convenient to be
prescribed for carrying out or giving effect to the Act. Various provisions in the Bill
permit particular rules to be made.
This clause also clarifies that the rules may not do the following things:
create an offence or civil penalty;
provide powers of:
- arrest or detention; or
- entry, search or seizure;
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impose a tax;
set an amount to be appropriated from the Consolidated Revenue Fund under
an appropriation in this Act;
directly amend the text of the Act.
The rules are a legislative instrument.
This clause also displaces subsection 14(2) of the Legislation Act 2003, in its
application to the rules. Subsection 14(2) of the Legislation Act 2003 relevantly
provides that, unless the contrary intention appears, a legislative instrument may not
make provision in relation to a matter by applying, adopting or incorporating any
matter contained in an instrument or other writing as in force or existing from time to
time.
As a general principle, the rules will make direct provision about relevant matters (eg
the kinds of disputes that will be dealt with in the General Division; the circumstances
in which the Tribunal may suspend or terminate an arbitration or appeal; application
fees and arbitration costs), rather than dealing with these matters by relying on
documents incorporated by reference.
However, given that the rules are yet to be finalised, provision has been included to
address the possibility that it may be necessary for the rules to incorporate a
document, such as the World Anti-Doping Code, by reference.
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NATIONAL SPORTS TRIBUNAL (CONSEQUENTIAL AMENDMENTS AND
TRANSITIONAL PROVISIONS) BILL 2019
NOTES ON CLAUSES
Clause 1: Short title
The effect of this clause is that the Bill, when enacted, may be cited as the National
Sports Tribunal (Consequential Amendments and Transitional Provisions) Act 2019.
Clause 2: Commencement
This clause sets out when each of the provisions in the Act commence. The whole Act
will commence at the same time as the National Sports Tribunal Act 2019
commences. If the National Sports Tribunal Act 2019 does not commence the
provisions of this Act will not commence.
Clause 3: Schedule(s)
This clause provides that legislation that is specified in a Schedule to the Act is
amended or repealed as set out in the applicable items in the Schedule concerned, and
any other item has effect according to its terms.
Schedule 1 - Amendments
Australian Sports Anti-Doping Authority Act 2006
Item 1: Paragraph 13(1)(k)
This item will amend paragraph 13(1)(k) of the Australian Sports Anti-Doping
Authority Act 2006. Under paragraph 13(1)(k), the National Anti-Doping Scheme (in
Schedule 1 to the Australian Sports Anti-Doping Authority Regulations 2006) is
required to authorise the ASADA CEO, in certain circumstances, to present certain
assertions and information at hearings of the Court of Arbitration for Sport and other
sporting tribunals. The amendment to paragraph 13(1)(k) will put beyond doubt that
the National Anti-Doping Scheme is required to authorise the ASADA CEO, in those
circumstances, to present those assertions and information at hearings of the Tribunal.
Item 2: Subsection 13D(3)
This item will amend subsection 13D(3) of the Australian Sports Anti-Doping
Authority Act 2006 to ensure that material obtained under a disclosure notice under
that Act can be presented as evidence in the Tribunal.
Freedom of Information Act 1982
Item 3: Schedule 3
This item will amend Schedule 3 to the Freedom of Information Act 1982 (the FOI
Act) so as to insert a reference to section 72 of the National Sports Tribunal Act 2019.
Under s 38 of the FOI Act, a document will be exempt from disclosure requirements
under that Act if the relevant disclosure of the document, or information contained in
the document, is prohibited under a provision of an enactment that is specified in
Schedule 3 to the FOI Act. Consequently, the effect of item 3 is to exempt material
from requirements to release imposed by the FOI Act where disclosure of the material
51
is prohibited by the secrecy provision at section 72 of the National Sports Tribunal
Act 2019.
This amendment will serve the dual purposes of ensuring that the secrecy provision
cannot be circumvented and providing parties to tribunal proceedings appropriate
guarantees about the confidentiality of material provided and obtained during the
course of proceedings (noting that this can include sensitive medical and health
information about athletes).
Schedule 2 - Application provisions
Item 1: Application provisions
Subitem (1) will have the effect that, subject to the criteria set out in the Bill being
met, an application will be able to be made for arbitration in the Anti-Doping
Division, or for arbitration or mediation, conciliation or case appraisal, in the General
Division, in relation to a dispute that arises before, on or after commencement.
Subitem (2) will have the effect that, subject to the criteria set out in the Bill being
met, a person or body will be able to make an appeal (to the Appeals Division) in
respect of a decision of a sporting body, whether that decision was made before, on or
after commencement.
Subitem (3) will have the effect that, subject to the criteria set out in the Bill being
met, a person or body will be able to make an appeal (to the Appeals Division) in
respect of a decision of a sporting tribunal, whether that decision was made before, on
or after commencement.
The legislative note to this item is intended to draw the reader's attention to the fact
that any relevant application or appeal is required to be made within the timeframes
specified in the anti-doping policy, constituent document, or rules.
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