Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN SPORTS DRUG AGENCY AMENDMENT REGULATIONS 2004 (NO. 1) 2004 NO. 226

Section 73 of the Australian Sports Drug Agency Act 1990 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 8 of the Act provides that the objects of the establishment of the Australian Sports Drug Agency (ASDA) are:

a)       to deter the use of drugs or doping methods in sport;

b)       to facilitate the safety of participants in sporting competitions;

c)       to encourage the development of programs to educate the sporting community about matters relating to the use of drugs in sport;

d)       to advocate the international adoption of consistent and effective anti-doping programs; and

e)       to coordinate the development of a consistent and effective national response to matters relating to the use of drugs in sport.

Subsection 11(1) of the Act provides that regulations may formulate one or more drug testing schemes. The Australian Sports Drug Agency Regulations 1999 (the Principal Regulations) currently provide for Scheme A and Scheme B. Scheme A provides for urine testing of competitors and Scheme B provides for blood testing. The Principal Regulations set out the procedures for taking samples of urine and or blood from competitors and testing them for banned substances and doping methods under Scheme A and Scheme B.

Schedule 1 to the Australian Sports Drug Agency Amendment Act 2004 (the Amendment Act) was proclaimed on 8 July 2004 to commence on 30 July 2004. From that date, the Act will be amended to enable ASDA and the Australian Sports Drug Medical Advisory Committee (ASDMAC) to align their policies and procedures to meet their obligations under the World Anti-Doping Code (the Code) by the commencement of the Athens Olympic Games in August 2004. The Code is the first document to harmonise rules regarding anti-doping across all nations and sports. The Code was introduced and was approved by all major sports federations at the world conference on doping in sport in Copenhagen, Denmark on 5 March 2003. The Code took effect from 1 January 2004 but signatories to the Code have until the Athens Olympic Games to accept and implement the Code.

The amendments to the Act contained in the Amendment Act implement those parts of the Code dealing with the recognition of international standards, new anti-doping rule violations and the reporting and sharing of information. The purpose of the Regulations is to make consequential amendments to the Principal Regulations that are required as a result of the Amendment Act and the implementation of the Code.

The Code requires compliance with relevant international standards, for example the standard for therapeutic use exemptions. Such exemptions are issued by ASDMAC. The amendments to the Regulations ensure that ASDMAC's functions and procedures in this respect are consistent with the relevant international standard as it exists from time to time.

The Regulations also give ASDA the power to request competitors to keep ASDA informed of their whereabouts so that they can be located for the purposes of drug testing. In addition, the Regulations require ASDA to make an entry on the Register of Notifiable Events for Scheme A and Scheme B in circumstances recognised under the Code as violations of the anti-doping rules. These circumstances are where a competitor:

i)       has failed to comply with a request to keep ASDA or a sporting administration body informed of their whereabouts;

ii)       has failed to comply with a request to keep ASDA or a sporting administration body informed of their whereabouts and because of that failure ASDA or the sporting administration body could not make a request to provide a sample for testing;

iii)       has deliberately evaded attempts by ASDA or a sporting administration body to make a request to provide a sample for testing; or

iv)       has tampered or attempted to tamper with any part of a sports drug matter.

The Regulations set out the rights of a competitor where ASDA decides that one of the above circumstances has occurred.

The Regulations also authorise ASDA and ASDMAC to disclose certain information to certain bodies, including sporting administration bodies, in relation to the above circumstances and other related matters. Additionally, ASDA is given the power under the Regulations to publicly disclose the name of an athlete whose name has been placed on the relevant Register of Notifiable Events. The Regulations provide that this public release would only take place after the athlete has had their case heard by the relevant sporting administration body and that body has had adequate time to release the information.

Details of the Regulations appear in the Attachment.

The Regulations commence on 30 July 2004.

ATTACHMENT

DETAILS OF THE AUSTRALIAN SPORTS DRUG AGENCY AMENDMENT REGULATIONS 2004 (NO. 1)

Regulation 1 - Name of Regulations

Regulation 1 provides that the name of the Regulations is the Australian Sports Drug Agency Amendment Regulations 2004 (No. 1).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on 30 July 2004.

Regulation 3 - Amendment of Australian Sports Drug Agency Regulations 1999

Regulation 3 provides that Schedule 1 to the Regulations amends the Australian Sports Drug Agency Regulations 1999.

Schedule 1         Amendments

Item 1 - Reader's guide, Definitions, after second paragraph

Item 2 - Reader's guide, Overview of drug testing legislative scheme, third paragraph

Item 3 - Reader's guide, Overview of the drug testing legislative scheme, fourth paragraph

Items 1, 2 and 3 amend the Reader's Guide at the beginning of the Regulations to reflect the amendments to the Regulations and, in particular, the additional circumstances in which ASDA will be required to make an entry on the relevant Register of Notifiable Events.

Item 4 - Regulation 3, definitions of Part A and Part B

Item 4 amends the definitions of Part A and Part B in relation to a sample in regulation 3. The definition of Part A ensures that all references to 'Part A' in the regulations (for example, in regulations 42 and 52) would cover not only Part A of a sample collected under the Scheme A Orders issued by ASDA under the Act (i.e. urine samples) but also a single sample or Part 1 of a sample collected under the Scheme B Orders (i.e. blood samples). Scientifically, the potential now exists for a blood sample alone to show a definitive positive test result whereas previously a positive result would need to be confirmed by a urine sample. The amended regulation reflects that technological change. In addition, the amended definition provides that the blood sample may be collected as two parts (Part 1 and Part 2 as referred to in the Scheme B Orders) or as a single sample.

Similarly, it is necessary to amend the definition of 'Part B' to ensure that all references to this term in the regulations cover Part B of a sample collected under the Scheme A Orders as well as Part 2 of a blood sample collected under the Scheme B Orders.

The definitions do not alter the effect of regulation 63A which requires a blood sample and a urine sample collected from a competitor to be treated as one sample in relation to the testing for erythropoietin.

Item 5 - After Division 2.2

Paragraph 11(2)(ca) of the Act will allow the drug testing schemes contained in the Regulations to authorise ASDA to request a competitor to keep ASDA informed of the competitor's whereabouts. This is so that the competitor can be located for the purposes of giving a sample for drug testing.

Regulation 13A - Request to give location of competitor

Regulation 13A allows ASDA to ask a competitor to keep ASDA informed of where the competitor can be found and sets out the requirements for such a request. A request would need to be given orally or by written notice, explain how the competitor is to keep ASDA informed and set out the period or periods for which the competitor is to keep ASDA informed. In the case of a request to an intellectually disabled competitor, in addition to the request made to the competitor, ASDA would need to give oral or written notice of the making of the request to the competitor to at least one of the competitor's spouse, parent/guardian, coach or a representative of a relevant sporting administration body.

Section 67A of the Act would apply to a written notice given to a person by ASDA under regulation 13A and provides for the manner in which a notice may be given to a person or to a sporting administration body.

Regulation 13B - Agency may ask for help in locating competitor

Regulation 13B allows ASDA, if it is having difficulty in finding a competitor so that it can make a request under subregulation 13A(1), to ask a relevant sporting administration body or a person who knows, or is related, to the competitor to help ASDA locate the person.

Item 6 - Regulation 25, including the note

Item 6 replaces regulation 25 with new regulation 25. Subregulation 25(1) replicates current regulation 25 by providing that an analytical investigative body may investigate a positive test result to find out whether the result was caused by naturally occurring levels of the substances concerned. Subregulation 25(2) allows an analytical investigative body, where a competitor has an approval for the use of a drug for therapeutic purposes, to investigate the sample analysis result for a sample given by the competitor to find out whether the competitor has complied with the conditions of the approval.

Subregulation 25(2) is related to regulations 29 and 30 (item 8) which require ASDA to enter a competitor's name on the relevant Register of Notifiable Events (there is a register for Scheme A and a register for Scheme B) in the event of a positive test result. As a result of the amendments made to the Act, one of the relevant circumstances that would need to be considered by ASDA in making a decision to enter a competitor's name on the Register is that the competitor has an approval for use of the relevant drug for therapeutic purposes from ASDMAC, a therapeutic approval body or as a result of a review, appeal or similar process relating to a decision of ASDMAC or a therapeutic approval body. It is therefore necessary to enable an analytical investigative body to investigate a sample analysis result to determine whether a competitor who has a therapeutic use approval has complied with any conditions of the approval.

Item 7 - After paragraph 25A(1)(a)

Item 7 makes a minor amendment to subregulation 25A(1) to reflect that a single sample may be collected under the Scheme B Orders in the future (see item 4).

Item 8 -Regulations 27, 28, 29 and 30

Item 8 substitutes new regulations for existing regulations 27, 28, 29 and 30. Currently, these regulations specify the circumstances in which ASDA must make an entry on the relevant Register. New regulations 27, 28 29 and 30 specify additional circumstances in which an entry must be made on the relevant Register as a consequence of paragraphs 11(2)(fa), (fb), (fc) and (fd) of the Act. These circumstances are:

•       where a competitor has deliberately evaded an attempt by ASDA to request the competitor to provide a sample (paragraph 11(2)(fa);

•       where a competitor has failed to comply with a request from ASDA to provide information about their whereabouts (paragraph 11(2)(fb);

•       where a competitor has failed to comply with a request from ASDA to provide information about their whereabouts and but for that failure ASDA would have made a request for a sample from the competitor (paragraph 11(2)(fc); and

•       where a competitor has tampered with a sports drug matter (paragraph 11(2)(fd).

Regulation 27 - Entries about events relating to request from Agency

Regulation 27 applies where ASDA decides that a competitor has failed to comply with a request for a sample (which reflects current subregulation 27(1)) and in the additional circumstances where ASDA decides that a competitor:

(a)       has failed to comply with a request to keep ASDA informed of their whereabouts;

(b)       was not able to be located so that a request for a sample could not be made (because the competitor failed to keep ASDA informed of their whereabouts);

(c)       deliberately evaded receiving a request for a sample; or

(d)       has tampered with a sports drug matter. 'Sample' and 'tampering with a sport drug matter' would have the same meaning as these terms have under the Act (section 46 of the Acts Interpretation Act 1901).

If the period during which the competitor may make a submission to ASDA about the relevant matter has ended, and ASDA has considered any submission and decided that the competitor did not have reasonable cause for the matter, ASDA is required to enter on the relevant Register the competitor's name, details of the matter and any other information that the orders require to be included in the entry. The notes to regulation 27 highlight ASDA's obligation under regulation 60 to give a competitor whose name has been entered on the Register written notice that the entry has been made and that the competitor has a right, under regulation 61, to apply to the Administrative Appeals Tribunal for a review of the decision to enter the competitor's name on the Register.

Regulation 28 - Entries about events relating to request from sporting administration body

Regulation 28 is similar to regulation 27 except that it specifies the circumstances in which ASDA must make an entry on one of the relevant Registers where it has asked a sporting administration body to arrange for a competitor to give a sample for drug testing. The circumstances are the same circumstances as those specified in regulation 27 except that the matters relate to requests made by the sporting administration body to the competitor, rather than by ASDA (i.e., a failure by a competitor to comply with a request by a sporting administration body to keep the body informed of the competitor's whereabouts, failure to be located so that a request for a sample can be made (because the competitor failed to keep the sporting administration body informed of their whereabouts)), deliberately evading receiving a request by a sporting administration body for a sample or tampering with a sports drug matter to which a request by a sporting administration body relates. The existing circumstance of failure to comply with a request by a sporting administration body for a sample is retained in paragraph 28(1)(b)(iv).

As in the case of regulation 27, if the period during which the competitor may make a submission to ASDA about the relevant matter has ended, and ASDA has considered any submission and decided that the competitor did not have reasonable cause for the matter, ASDA is required to enter on the relevant Register the competitor's name, details of the matter and any other information that the orders require to be included in the entry. The notes to regulation 28 highlight ASDA's obligation under regulation 60 to give a competitor whose name has been entered on the Register written notice that the entry has been made and that the competitor has a right, under regulation 61, to apply to the Administrative Appeals Tribunal for a review of the decision to enter the competitor's name on the Register.

Regulation 29 - Entries about results from tests arranged by Agency

Regulation 29 currently applies where the result of the testing of a competitor's sample is positive and ASDA has considered any other relevant circumstances and decided that the positive result is valid. In such circumstances, ASDA is required to enter the competitor's name on the relevant Register. 'Relevant circumstances' is defined in subregulation 29(4) to include circumstances where an investigation by ASDMAC or an analytical investigative body has revealed that the positive test is not attributable to naturally occurring levels of the substance concerned; or where the competitor had approval from ASDMAC or a therapeutic approval body for the use of the drug concerned for therapeutic purposes; or any circumstance stated in the orders for the purpose of subregulation 29(4).

Regulation 29 still applies where the result of the testing of a sample is positive. However, the examples of 'relevant circumstances' reflect that a competitor may have an approval for the therapeutic use of a drug from ASDMAC, a therapeutic approval body or one that results from a review, appeal or similar process relating to a decision of ASDMAC or a therapeutic approval body. It is necessary to make this new relevant circumstance because the World Anti-Doping Code now provides that the World Anti-Doping Agency may reverse the decisions of therapeutic approval bodies, including ASDMAC.

Regulation 30 - Entries about results from tests arranged by sporting administration body

Regulation 30 is similar to regulation 29. Regulation 30 requires ASDA to make an entry on the relevant register about a positive test result in the same circumstances that it is required to make an entry under regulation 29, but where ASDA has asked a sporting administration body to arrange for a competitor to give a sample and the result of the testing of the sample is positive. Similarly to subregulation 29(4), subregulation 30(4) defines 'relevant circumstances' in a manner that reflects that a competitor may have an approval for the therapeutic use of a drug from ASDMAC, a therapeutic approval body or one that results from a review, appeal or similar process relating to a decision of ASMAC or a therapeutic approval body.

Item 9 - Paragraph 31(2)(c)

Item 9 makes a minor consequential amendment to paragraph 31(2)(c) to accommodate the addition of new paragraph 31(2)(d) (see item 10).

Item 10 - After paragraph 31(2)(c)

Regulation 31 makes provision for when ASDA must inform certain organisations about entries on the registers. Paragraph 31(2)(d) requires ASDA, where it has made an entry on the Register as a result of a competitor tampering with a sports drug matter, to notify each relevant national sporting organisation and each relevant sporting organisation in relation to any competitor whose interests may have been affected by the tampering of the other competitor. This regulation is required because in some cases a competitor may have tampered with a sports drug matter other than their own.

Item 11 - Subregulation 32(1)

Subregulation 32(1) is a consequential amendment related to the amendments in item 8 (see above) to allow ASDA to give information to sporting administration bodies in relation to all entries that will be able to be made on the relevant Registers.

Item 12 - Regulation 33, heading

Item 12 makes a minor amendment to the heading of regulation 33 to reflect the amendments to regulation 33 in item 13 (see below).

Item 13 - Subregulations 33(1), (2) and (3)

Item 13 substitutes new subregulations 33(1), (2) and (3) for current subregulations 33(1), (2) and (3). Currently under regulation 33, if a competitor has failed to comply with a request by ASDA for a sample or has been notified of a positive test result for a sample given by the competitor but no entry has been made on the relevant register about the failure to comply or the positive test result, ASDA may give information to one or more specified sporting administration bodies about the matter. However, ASDA must ensure that the competitor cannot be identified by any information given to the specified sporting administration body or bodies.

The amendments to regulation 33 allow ASDA to disclose information to one or more specified sporting administration bodies about a competitor if it is considering whether to enter information about the competitor on the appropriate Register. However, ASDA needs to have taken reasonable steps to satisfy itself that the information will not be used in a way that is unfairly prejudicial to the competitor. Reasonable steps include satisfying itself that the information about the competitor is provided in confidence and the sporting administration body has procedures in place in accordance with the principles that apply to provisional suspensions as set out in the World Anti-Doping Code. Those principles include that the competitor has the right to a provisional hearing in accordance with the Code or the opportunity for an expedited hearing in accordance with the Code.

The purpose of the amendments is to allow ASDA to disclose information about matters that could result in an entry being made on the relevant Register to a sporting administration body before the final decision is made to do so. An example of such a situation would be a positive test result for a competitor days before an international competition. In such circumstances, it is appropriate that ASDA be able to inform the relevant sporting administration body, whilst at the same time ensuring that the information would not be used in a prejudicial manner.

Item 14 - Regulation 36

Item 14 replaces regulation 36 with new regulation 36, and inserts new regulations 36A to 36F after regulation 36.

Regulation 36 - Notice about competitors' rights etc - request to inform Agency of location

Regulation 36A - Notice about failure to comply with request to inform Agency of location

Regulation 36B - Submission about failure to comply with a request to inform Agency of location

Regulations 36, 36A and 36B specify a competitor's rights in relation to a request from ASDA for the competitor to keep ASDA informed of their whereabouts. Regulation 36 requires ASDA, where it makes such a request, to notify the competitor of the possible consequences of failing to comply with the request. ASDA is able to give this notice in writing or orally and either at the time that it makes the request or as soon as practicable thereafter.

Regulation 36A sets out a competitor's rights where ASDA decides that the competitor has failed to comply with a request to keep ASDA informed of their whereabouts. As soon as practicable after deciding that the competitor has failed to comply with the request, ASDA needs to give the competitor a written notice that informs the competitor that the competitor may, within 7 days of receiving the notice, give ASDA a written submission setting out reasonable cause for the failure to keep ASDA informed or may waive, by notice in writing to ASDA, the right to give a written submission.

Regulation 36B gives a competitor who has received a notice from ASDA under regulation 36A the right to make a written submission setting out any reasonable cause for the failure to keep ASDA informed of their whereabouts and would also allow the competitor to waive their right to make a submission by giving ASDA a written notice to this effect. ASDA is required to consider any submission given to it by a competitor in making a decision as to whether the competitor had reasonable cause for the failure (regulation 27(1)(c)). Subregulation 36B(2) provides that a competitor will be taken to have waived the right to make a written submission where the competitor does not give ASDA a written submission or a notice waiving their right to make a submission within the submission period (which is the period of 7 days after the day on which the competitor received the notice). However, if ASDA considered that the competitor is likely to take part in international sporting competition or a sporting competition to select people to represent Australia in international sporting competition, ASDA would be able to substitute a shorter period for the usual 7 day period provided that it does so by way of written notice to the competitor and before the end of the submission period (subregulations 36B(3) and (4)).

Regulation 36C - Notice about competitors' rights etc - competitor not able to be located for a sample after being requested to provide location

Regulation 36D - Submission about competitor not being able to be located for sample after being requested to provide location

Regulations 36C and 36D specify a competitor's rights where ASDA has been unable to locate the competitor for the purpose of requesting the competitor to give a sample, and this is because the competitor failed to comply with a request by ASDA to keep ASDA informed of their whereabouts.

As soon as practicable after ASDA decides that the competitor has failed to be located because of a failure to keep ASDA informed of their whereabouts, regulation 36A requires ASDA to give the competitor a written notice which states that the competitor may, within 7 days after receiving the notice, give ASDA a written submission setting out any reasonable cause for the competitor's failure to be located or may waive the right to make a submission by giving ASDA a written notice to this effect.

Regulation 36D gives a competitor who has received a notice from ASDA under regulation 36C the right to make a written submission setting out any reasonable cause for the failure to be located and would also allow the competitor to waive their right to make a submission by giving ASDA a written notice to this effect. ASDA is required to consider any submission given to it by a competitor in making a decision as to whether the competitor had reasonable cause for the failure (regulation 27(1)(c)). Subregulation 36D(2) provides that a competitor will be taken to have waived their right to make a written submission where the competitor does not give ASDA a written submission or a notice waiving their right to make a submission within the submission period (which is the period of 7 days after the day on which the competitor received the notice). However, if ASDA considered that the competitor is likely to take part in international sporting competition or a sporting competition to select people to represent Australia in international sporting competition, ASDA may substitute a shorter period for the usual 7 day period provided that it does so by way of written notice to the competitor and before the end of the submission period (subregulations 36D(3) and (4)).

Regulation 36E - Notice about competitors' rights etc - evasion of request by Agency for a sample

Regulation 36F - Submission about evasion of request by Agency for sample

Regulations 36E and 36F specify a competitor's rights where ASDA decides that the competitor has deliberately evaded receiving a request to give a sample (regulation 37 and regulations 38-41 set out a competitor's rights where ASDA decides that the competitor has failed to comply with a request to give a sample).

As soon as practicable after ASDA decides that the competitor has deliberately evaded receiving a request to give a sample, regulation 36E requires ASDA to give the competitor a written notice which states that the competitor may, within 7 days after receiving the notice, give ASDA a written submission setting out any reasonable cause for the competitor's conduct or may waive their right to make a submission by giving ASDA a written notice to this effect.

Regulation 36F gives a competitor who has received a notice from ASDA under regulation 36E the right to make a written submission setting out any reasonable cause for their conduct and would also allow the competitor to waive their right to make a submission, by giving ASDA a written notice to this effect. ASDA is required to consider any submission given to it by a competitor in making a decision as to whether the competitor had reasonable cause for their conduct (regulation 27(1)(c)). Subregulation 36F(2) provides that a competitor will be taken to have waived their right to make a written submission where the competitor does not give ASDA a written submission or a notice waiving their right to make a submission within the submission period (which is the period of 7 days after the day on which the competitor received the notice). However, if ASDA considered that the competitor is likely to take part in international sporting competition or a sporting competition to select people to represent Australia in international sporting competition, ASDA would be able to substitute a shorter period for the usual 7 day period provided that it does so by way of written notice to the competitor and before the end of the submission period (ubregulations 36F(3) and (4)).

Item 15 - Regulation 37

Item 15 replaces existing regulation 37 with new regulation 37. Regulation 37 requires ASDA, as soon as practicable after it asks a competitor for a sample, to notify the competitor of the consequences of the failure to do so. The regulation would essentially combine existing regulations 36 and 37 as one regulation which is necessary because of the addition of new regulations 36-36G (item 14).

Item 16 - Regulations 42, 43 and 44

Item 16 inserts new regulations 41A and 41B after regulation 41 and substitutes new regulations 42 and 43 for current regulations 42, 43 and 44 in order to implement Article 7.2 of the World Anti-Doping Code.

Regulations 41A and 41B specify a competitor's rights where ASDA decides that the competitor has tampered with a sports drug matter.

Regulation 41A - Notice about competitor's rights etc - tampering with a sports drug matter

Regulation 41A provides that, as soon as practicable after ASDA decides that a competitor has tampered with a sports drug matter, ASDA must give the competitor a written notice which states that the competitor may, within 7 days after receiving the notice, give ASDA a written submission setting out any reasonable cause for the competitor's conduct or may waive their right to make a submission by giving ASDA a written notice to this effect.

Regulation 41B - Submission about tampering with a sports drug

Regulation 41B gives a competitor who has received a notice from ASDA under regulation 41A the right to make a written submission setting out any reasonable cause for their conduct and would also allow the competitor to waive their right to make a submission, by giving ASDA a written notice to this effect. ASDA is required to consider any submission given to it by a competitor in making a decision as to whether the competitor had reasonable cause for their conduct (regulation 27(1)(c)). Subregulation 41B(2) provides that a competitor will be taken to have waived their right to make a written submission where the competitor does not give ASDA a written submission or a notice waiving their right to make a submission within he submission period (which is the period of 7 days after the day on which the competitor received the notice). However, if ASDA considered that the competitor is likely to take part in international sporting competition or a sporting competition to select people to represent Australia in international sporting competition, ASDA would be able to substitute a shorter period for the usual 7 day period provided that it does so by way of written notice to the competitor and before the end of the submission period (subregulations 41B(3) and (4)).

Regulations 42, 43 and 44 deal with the situation where the result of the testing of Part A of a sample given by a competitor (at ASDA's request) is positive. Currently, under the regulations ASDA may arrange for Part B of the sample to be tested on a particular day. A competitor may give ASDA a waiver notice that would stop the Part B sample from being tested, in which case the competitor could decide to give ASDA a written submission in relation to the positive result from the testing of the Part A sample, or may waive the right to make a submission.

Regulations 42 and 43 implement Article 7.2 of the World Anti-Doping Code by giving the competitor the right to elect (or not to elect) to have Part B of the sample tested and removing the ASDA's ability to initiate the testing of the Part B sample. Under regulation 42, if the result of the testing of Part A of a sample is positive, ASDA is required to give the competitor a notice that informs the competitor of the positive test result and that:

•       the competitor has the right to elect (or not elect) to have Part B of the sample tested (which would need to be notified to ASDA within 7 days of the competitor receiving the notice). If a notice is not received by ASDA within that period, the competitor cannot make any further election in relation to Part B of the sample;

•       if the competitor elects to have the Part B sample tested:

Ø       ASDA will arrange for the testing of the Part B sample and the competitor has a right to attend or be represented at the testing;

Ø       ASDA would notify the competitor of the result of the testing and if the test result is positive, the competitor would have the right to make a submission to ASDA about the result.

Regulation 43 gives a competitor who has received a notice from ASDA under regulation 42 the right to give ASDA a notice to the effect that the competitor elects, or does not elect, to have Part B of the sample tested. Regulation 43(2) provides that if ASDA does not receive a notice from a competitor under subregulation 42(1) within 7 days after the competitor receives the notice under regulation 42, the competitor cannot later make any election in relation to the testing of Part B of the sample.

There are circumstances where only one sample is taken and a valid positive result can be obtained from that single sample without the need to have A and B samples. regulation 42 would apply in such a situation because of the definition of Part A (see item 4) to include a single sample. However, in such circumstances regulations 42(3), (4) and (5), and regulation 43, would not apply but the competitor would have the right to make a submission in relation to the positive result from the single sample under regulation 45. Subregulation 43(5) also gives the competitor the right to make a submission in relation to the testing of Part A of the sample.

Item 17 - Subregulation 45(1)

Item 17 amends subregulation 45(1) to ensure that a competitor would be able to make a submission about a Part A sample where a positive result has occurred from a single sample, or where there were two samples, where the competitor elected not to have the Part B sample tested or where the competitor did not respond to the notice given under subregulation 42(2) within 7 days.

Item 18 - Subregulation 45(2)

Item 18 makes a minor amendment to subregulation 45(2) as a consequence of the amendments made by item 16 which would allow the competitor to elect whether Part B of a sample will be tested, following a positive test result for Part A of a sample.

Item 19 - Regulation 46

Item 19 substitutes new regulation 46 for current regulation 46. Regulation 46 is effectively the same as regulation 46, in that it would specify a competitor's rights where Part B of a sample is to be tested, however, regulation 46 reflects that under regulation 43, the competitor would be able to elect to have Part B of the sample tested.

Item 20 - Subregulation 47(1)

Item 20 makes minor amendments to subregulation 47(1) as a consequence of the amendments made by item 16 which allow the competitor to elect whether Part B of a sample will be tested, following a positive test result for Part A of a sample.

Item 21 - Regulation 49

Item 21 replaces regulation 49 with new regulation 49, and inserts new regulations 49A to 49G.

The purpose of the regulations is to specify the rights of a competitor in relation to the circumstances that could result in an entry about the competitor being made on the relevant Register, where a sporting administration body (rather than ASDA) has made certain requests of a competitor or has attempted to arrange for a competitor to give a sample for testing.

Regulation 49 - Notice about competitors' rights etc - request to inform sporting administration body of location

Regulation 49A - Notice about failure to comply with request to inform sporting administration body of location

Regulation 49B - Submission about failure to comply with a request to inform sporting administration body of location

Regulations 49, 49A and 49B specify a competitor's rights in relation to a request from a sporting administration body to the competitor to keep the body informed of their whereabouts. Regulation 49 requires the sporting administration body, in connection with a request to a competitor to keep the sporting administration body informed of their whereabouts, to notify the competitor of the possible consequences of failing to comply with the request. The sporting administration body is able to give this notice in writing or orally and either at the time that it makes the request or as soon as practicable thereafter.

Regulation 49A sets out a competitor's rights where ASDA decides that the competitor has failed to comply with a request by a sporting administration body to keep the sporting administration body informed of their whereabouts. As soon as practicable after deciding that the competitor has failed to comply with the request, ASDA needs to give the competitor a written notice that informs the competitor that the competitor may, within 7 days of receiving the notice, give ASDA a written submission setting out reasonable cause for the failure to keep ASDA informed or may waive, by notice in writing to ASDA, the right to give a written submission.

Regulation 49B gives a competitor who has received a notice under regulation 49A the right to make a written submission setting out any reasonable cause for the failure to keep the sporting administration body informed of their whereabouts. As an alternative, the competitor would be able to waive their right to make a submission, by giving ASDA a written notice to this effect. ASDA is required to consider any submission given to it by a competitor in making a decision as to whether the competitor had reasonable cause for the failure (regulation 28(1)(d)). Subregulation 49B(2) provides that a competitor will be taken to have waived their right to make a written submission where the competitor does not give ASDA a written submission or a notice waiving their right to make a submission within the submission period (which is the period of 7 days after the day on which the competitor received the notice). However, if ASDA considered that the competitor is likely to take part in international sporting competition or a sporting competition to select people to represent Australia in international sporting competition, ASDA would be able to substitute a shorter period for the usual 7 day period provided that it does so by way of written notice to the competitor and before the end of the submission period (subregulations 49B(3) and (4)).

Regulation 49C - Notice about competitors' rights etc - competitor not able to be located for a sample after being requested by a sporting administration body to provide location

Regulation 49D - Submission about competitor not being able to be located for sample after being requested to provide location

Regulations 49C and 49D specify a competitor's rights where ASDA has asked a sporting administration body to arrange for a competitor to be asked to give a sample and ASDA decides that the competitor was not able to be located (so that a sample could be given) because the competitor failed to comply with a request by the sporting administration body to keep the body informed of their whereabouts. As soon as practicable after ASDA decides that the competitor has failed to be located because of a failure to keep the sporting administration body informed of their whereabouts, ASDA would be required to give the competitor a written notice which states that the competitor may, within 7 days after receiving the notice, give ASDA a written submission setting out any reasonable cause for the competitor's failure to be located or may waive their right to make a submission by giving ASDA a written notice to this effect.

Regulation 49D gives a competitor who has received a notice under regulation 49C the right to make a written submission setting out any reasonable cause for the failure to be located or would allow the competitor to waive their right to make a submission by giving ASDA a written notice to this effect. ASDA is required to consider any submission given to it by a competitor in making a decision as to whether the competitor had reasonable cause for the failure (regulation 28(1)(d)). Subregulation 49D(2) would provide that a competitor will be taken to have waived their right to make a written submission where the competitor does not give ASDA a written submission or a notice waiving their right to make a submission within he submission period (which is the period of 7 days after the day on which the competitor received the notice). However, if ASDA considered that the competitor is likely to take part in international sporting competition or a sporting competition to select people to represent Australia in international sporting competition, ASDA would be able to substitute a shorter period for the usual 7 day period provided that it does so by way of written notice to the competitor and before the end of the submission period (subregulations 49D(3) and (4)).

Regulation 49E - Notice about competitors' rights etc - evasion of request by sporting administration body for a sample

Regulation 49F - Submission about evasion of request by sporting administration body for a sample

Regulations 49E and 49F specify a competitor's rights where ASDA has asked a sporting administration body to arrange for a competitor to be asked to give a sample (for drug testing purposes) and ASDA decides that the competitor has deliberately evaded receiving a such a request by a sporting administration body (regulations 50 and 51 set out a competitor's rights where ASDA decides that a competitor has failed to comply with a request by a sporting administration body to give a sample).

As soon as practicable after ASDA decides that the competitor has deliberately evaded receiving a request by a sporting administration body to give a sample, ASDA is required to give the competitor a written notice which states that the competitor may, within 7 days after receiving the notice, give ASDA a written submission setting out any reasonable cause for the competitor's conduct or may waive their right to make a submission by giving ASDA a written notice to this effect.

Regulation 49F gives a competitor who has received a notice under regulation 49E the right to make a written submission setting out any reasonable cause for their conduct and would allow the competitor to waive their right to make a submission, by giving ASDA a written notice to this effect. ASDA would be required to consider any submission given to it by a competitor in making a decision as to whether the competitor had reasonable cause for their conduct (regulation 28(1)(d)). Subregulation 49F(2) provides that a competitor will be taken to have waived their right to make a written submission where the competitor does not give ASDA a written submission or a notice waiving their right to make a submission within he submission period (which is the period of 7 days after the day on which the competitor received the notice). However, if ASDA considered that the competitor is likely to take part in international sporting competition or a sporting competition to select people to represent Australia in international sporting competition, ASDA would be able to substitute a shorter period for the usual 7 day period provided that it does so by way of written notice to the competitor and before the end of the submission period (subregulations 49F(3) and (4)).

Regulation 49G - Application of regulations 50 to 58

Regulation 49G essentially replicates current regulation 49. Regulation 49 provides that Subdivision 2.6.2 of the Principal Regulations (ie. existing regulations 49 to 58) applies where ASDA:

(a)       asks a sporting administration body to arrange for a competitor to give a sample to determine whether the competitor has been using a relevant scheduled drug or doping method;

(b)       asks the sporting administration body to arrange for Part A of the sample to tested for that purpose;

(c)       asks the sporting administration body to give ASDA information arising out of the making of the request; and

(d)       asks the sporting administration body to request the competitor to give the sample.

Regulations 50 and 51 specify the rights of a competitor where the competitor has failed to comply with the request to give a sample made by the sporting administration body. Due to the addition before regulations 50 and 51 of a number of regulations dealing with the rights of competitors in relation to the additional circumstance which may now result in an entry being made on the relevant register, it is necessary to reproduce regulation 49 (with a minor amendment) as regulation 49G.

Item 22 - Subregulation 50(1)

Item 23 - Subregulation 51(1)

Items 22 and 23 make minor amendments to subregulations 50(1) and 51(1) as a consequence of the replication of regulation 49 as regulation 49G (see item 21).

Item 24 - Regulations 52, 53 and 54

Item 24 substitutes new regulations 52 and 53 for current regulations 52, 53 and 54 in order to implement Article 7.2 of the World Anti-Doping Code.

Regulations 52, 53 and 54 deal with the situation where the result of the testing of Part A of a sample given by a competitor (at the request of a sporting administration body) is positive and the sporting administration body has informed ASDA of the positive result. Currently, under the regulations ASDA may arrange for Part B of the sample to be tested on a particular day or may ask the sporting administration body to arrange for testing of the Part B sample to occur on a particular day. A competitor may give ASDA a waiver notice that would stop the Part B sample from being tested, in which case the competitor could decide to give ASDA a written submission in relation to the positive result from the testing of the Part A sample, or may waive the right to make a submission.

New regulations 52 and 53 implement Article 7.2 of the World Anti-Doping Code by giving the competitor the right to elect (or not to elect) to have Part B of the sample tested. Under regulation 52, if a positive test result is notified to ASDA by a sporting administration body, ASDA is required to give the competitor a notice that informs the competitor of the positive test result and that:

•       the competitor has the right to elect (or not elect) to have Part B of the sample tested (which would need to be notified to ASDA within 7 days of the competitor receiving the notice). If a notice is not received by ASDA within that period, the competitor cannot make any further election in relation to Part B of the sample;

•       if the competitor elects to have the Part B sample tested:

o       the sporting administration body (at ASDA's request) will arrange for the testing of the Part B sample and the competitor has a right to attend or be represented at the testing ;

o       ASDA would notify the competitor of the result of the testing and if the test result is positive, the competitor would have the right to make a submission to ASDA about the result.

Regulation 53 gives a competitor who has received a notice from ASDA under regulation 52 the right to give ASDA a notice to the effect that the competitor elects, or does not elect, to have Part B of the sample tested. Regulation 53(2) provides that if the competitor does not notify ASDA under subregulation 52(1) within 7 days after the competitor receives the information notice, the competitor cannot later make any election in relation to the testing of Part B of the sample.

Item 25 - Subregulation 55(1)

Item 25 amends subregulation 55(1) to ensure that a competitor would be able to make a submission about a Part A sample where a positive result has occurred from a single sample, or where there were two samples, where the competitor elected not to have the Part B sample tested or where the competitor did not respond to the notice given under subregulation 52(2) within 7 days.

Item 26 - Subregulation 55(2)

Item 26 makes a minor amendment to subregulation 55(2) as a consequence of the amendments made by item 24 which allow the competitor to elect whether Part B of a sample will be tested, following a positive test result for Part A of a sample.

Item 27 - Regulation 56

Item 27 substitutes new regulation 56 for current regulation 56. Regulation 56 is effectively the same as the existing regulation 56, in that it specifies a competitor's rights where Part B of a sample is to be tested, however, regulation 56 reflects that under regulation 53, the competitor is able to elect to have Part B of the sample tested.

Item 28 - Subregulation 57(1)

Item 28 makes minor amendments to subregulation 57(1) as a consequence of the amendments made by item 23 which allow the competitor to elect whether Part B of a sample will be tested, following a positive test result for Part A of a sample.

Item 29 - After regulation 58

Item 29 inserts new regulations 58A and 58B after regulation 58.

Regulations 58A and 58B specify the rights of a competitor in circumstances where ASDA has asked a sporting administration body to request a competitor to give a sample for drug testing purposes and ASDA decides that the competitor has tampered with a sports drug matter.

Regulation 58A - Notice about competitors' rights etc - tampering with a sports drug matter

As soon as practicable after deciding that the competitor has tampered with a sports drug matter, regulation 58A requires ASDA to give the competitor a written notice that informs the competitor that the competitor may, within 7 days of receiving the notice, give ASDA a written submission setting out reasonable cause for tampering with the sports drug matter or may waive, by notice in writing to ASDA, the right to give a written submission.

Regulation 58B - Submission about tampering with a sports drug matter

Regulation 58B gives a competitor who has received a notice from a sporting administration body under regulation 58A the right to make a written submission setting out any reasonable cause for tampering with the sports drug matter. As an alternative, the competitor would be able to waive their right to make a submission, by giving ASDA a written notice to this effect. ASDA is required to consider any submission given to it by a competitor in making a decision as to whether the competitor had reasonable cause for the tampering (regulation 28(1)(d)). Subregulation 58B(2) provides that a competitor will be taken to have waived their right to make a written submission where the competitor does not give ASDA a written submission or a notice waiving their right to make a submission within the submission period (which is the period of 7 days after the day on which the competitor received the notice). However, if ASDA considered that the competitor is likely to take part in international sporting competition or a sporting competition to select people to represent Australia in international sporting competition, ASDA would be able to substitute a shorter period for the usual 7 day period provided that it does so by way of written notice to the competitor and before the end of the submission period (subregulations 58B(3) and (4)).

Item 30 - Regulation 63A, note

Item 30 omits the note to existing regulation 63A due to the proposed amendments to regulation 3 in item 4 (see above).

Item 31 - After Division 2.6

Item 30 inserts a new Division after Division 2.6 that deals with the disclosure of information by ASDA.

Regulation 63B - Giving information for purposes of drug testing programs

As of 30 July 2004, section 17BA of the Act will allow a drug testing scheme to permit ASDA to disclose to one or more sporting administration bodies certain information for the purposes of one or more drug testing programs. The information that a drug testing scheme may allow to be disclosed is information relating to the testing, or attempted testing, of competitors under drug testing schemes, relating to decisions of ASDMAC to approve, or refuse to approve, the use of schedule drugs for therapeutic purposes, and information provided under a drug scheme relating to where competitors may be found. Regulation 63B allows ASDA to disclose this kind of information to one or more sporting administration bodies for the purpose of one or more drug testing programs. 'Drug testing program' is defined in subregulation 63B(4) as a program for the testing of people who participate in sports, to determine whether they are using particular drugs or doping methods.

As required by subsection 17BA(3) of the Act, subregulation 63B(3) prevents ASDA from disclosing information to a sporting administration body unless ASDA has taken reasonable steps to satisfy itself that the information disclosed would not be used or disclosed for other purposes (i.e. purposes other than for one or more drug testing programs).

Regulation 63C - Making information on an entry publicly available

As of 30 July 2004, section 17BB of the Act allows a drug testing scheme to permit ASDA to make information relating to entries concerning competitors on the relevant Register publicly available. Prior to the amendment of the Act, ASDA could not release publicly the names of competitors.

Paragraph 63C(1)(a) allows ASDA to make the name of a competitor that is included in an entry on the Register publicly available but only if the relevant sporting administration body has completed a hearing process in accordance with Article 8 of the World Anti-Doping Code and ASDA is satisfied that body has had adequate time to release the information.

Paragraph 63C(1)(b) allows ASDA to make other information concerning an entry on the Register publicly available in any circumatnces.

ASDA is able to determine the time and the manner in which the information is made publicly available (subregulation 63C(2)).

Item 32 - After subregulation 64(1)

Subregulation 64(1) allows ASDMAC to investigate a positive test result for a sample given by a competitor to determine whether the result was caused by naturally occurring levels of the substance concerned. Item 32 inserts a note after subregulation 64(1) to highlight that, under subregulation 25(1), an analytical investigative body may also conduct a similar investigation into a positive test result.

Item 33 - Subregulation 64(2)

Subregulation 64(2) allows ASDMAC to give a competitor approval to use a scheduled drug or doping method for therapeutic purposes. Subregulation 64(2) requires ASDMAC to give approvals in accordance with the International Standard for Therapeutic Use Exemptions, as amended and in force from time to time. Such standards are developed by the World Anti-Doping Agency (WADA) in association with the Code. The purpose of the amendment is to ensure that all therapeutic approvals given by ASDMAC comply with the international standard agreed under the Code. Compliance with the international standard is important because if ASDMAC did not comply with the standard, then under the Code, WADA would be able to reverse ASDMAC's decisions.

Item 34 - After subregulation 64(2)

Item 34 inserts a new subregulation 64(2A). Subregulation 64(2A) is related to regulations 29 and 30 which require ASDA to make an entry on the relevant Register in the event of a positive test result. As a result of the amendments made to the Act, one of the relevant circumstances that needs to be considered by ASDA in making a decision to enter a competitor's name on the relevant Register is that the competitor has an approval for use of the relevant drug for therapeutic purposes from ASDMAC, a therapeutic approval body or as a result of a review, appeal or similar process relating to a decision of ASDMAC or a therapeutic approval body. If the competitor has a therapeutic use exemption what appears to be a positive test result may not be so. However, if the conditions of a therapeutic use exemption have not been complied with then, although the competitor has a therapeutic use exemption, their test result may be found to be positive. It is therefore necessary to enable ASDMAC to investigate a sample analysis result to determine whether a competitor who has a therapeutic use approval has complied with the conditions of the approval.

Item 35 - After subregulation 64(5)

Item 35 gives ASDMAC some additional functions.

Under subregulation 64(5A), if ASDA were to consult ADSMAC in relation to whether an approval for the use of a drug for therapeutic purposes counts (in determining whether a positive test result is valid and which is therefore required to be entered on the relevant register), ASDMAC would be able to investigate the approval and give its opinion to ASDA.

Subregulation 64(5B) allows ASDMAC to participate in a review or appeal that is related, directly or indirectly, to a decision it has made to approve, or to refuse to approve, the use of a schedule drug for therapeutic purposes. Under the Code, decisions made by ADSMAC in relation to approvals for the therapeutic use of a drug may be reviewed by WADA on its own initiative or at the request of a competitor.

Subregulations 64(5C) and (5D) are similar in nature to regulation 63B in that section 17BA of the Act, as of 30 July 2004, will allow a drug testing scheme to permit ASDMAC to disclose information in relation to the testing, or attempted testing, of competitors under drug testing schemes, relating to decision of ASDMAC to approve, or refuse to approve, the use of schedule drugs for therapeutic purposes, to one or more sporting administration bodies for the purposes of one or more drug testing programs.

Subregulation 64(5C) allows ASDMAC to disclose to a sporting administration body information that is related to a drug testing program and is related directly or indirectly to a decision made by ASDMAC to approve, or to refuse to approve, the use of a schedule drug for therapeutic purposes. As required by subsection 17BA(3), ASDMAC is not able to disclose the information unless it has taken reasonable steps to satisfy itself that the information disclosed will not be used or disclosed for other purposes (proposed subregulation 64(5D)).