10 Oct 2018
- Sports Law
After an eight-month review into Australia’s sports integrity arrangements, the resulting report and recommendations were presented to the Commonwealth Government in March 2018. They were then made public in August 2018. On the same day that the review (known as the ‘Wood Review’) was made public, a new strategic plan for sport in Australia, Sport 2030: National Sports Plan, was launched.
In this article, Catherine Ordway, Senior Consultant with SHG Sport at Snedden Hall & Gallop Lawyers, takes a brief look at the findings of the review and its recommendations, and the new strategic plan for sport. This article is based on her extensive discussion on this topic in her paper, ‘Sports integrity: Legislating into a position of strength’, which was recently published in World Sports Advocate.
Sport 2030: National Sports Plan
On 1 August 2018, Bridget McKenzie, Federal Minister for Sport, launched the new strategic plan for sport in Australia, Sport 2030: National Sports Plan, together with a name change for the Australian Sports Commission (now Sport Australia). A key priority area of the plan is ‘Safeguarding the integrity of sport — a fair, safe and strong sport sector free from corruption’.
Consistent with this, the government formed a Sports Integrity Review Taskforce to develop and implement its response to the Wood Review. The plan envisages that Sport Australia will support the taskforce in this role; continue to encourage sports organisations to implement best practice governance; and establish Sport Safe Australia (Wood Review, pp. 44–47).
National Sports Integrity Commission
The most comprehensive of the Wood Review’s 52 recommendations relates to the establishment of a new umbrella body, the National Sports Integrity Commission (NSIC), and a national platform for information sharing.
It is anticipated that the NSIC would need to be established as a statutory authority, or equivalent, as the Wood Review recommends that both ASADA and the NSIC be accorded ‘status as a law enforcement agency’. Others have previously noted that ASADA’s ability to fully function has been hampered by it not being designated as a law enforcement agency as it was not permitted to receive and share intelligence with domestic and international regulatory, sporting and law enforcement bodies.
It is intended that the NSIC should have three primary areas of focus :
1. Sports wagering regulation as part of a proposed Australian Sports Wagering Scheme
3. Policy and program delivery.
The Wood Review notes the arguments made around the importance of sport autonomy (pp. 56–57). However, Australian and international examples demonstrate that the criminal law is inadequate in penalising those responsible for corruption in sport. Without a national anti-corruption body, the NSIC needs self-initiating and responsive powers to investigate and regulate unwanted behaviour.
Examples of unwanted behaviour include:
• extortion and bribery
• fraud and misappropriation of membership organisation funds
• ticketing impropriety
• poor accountability and governance.
Therefore, I’d suggest that whistle-blower protections recommended for ASADA be expanded to include any sports corruption issues.
Recommendations to amend the anti-doping legislation
In compliance with its obligations under the Council of Europe and, later, the UNESCO anti-doping conventions, Australia has enacted legislation aimed at what has been coined as ‘cheating to win’. Australia is believed to be one of only two jurisdictions in the world that establishes its national anti-doping organisation, ASADA, through an Act of Parliament. However, Australia doesn’t consider it appropriate to criminalise doping in sport, and this isn’t addressed in the Wood Review. This is in line with the World Anti-Doping Agency’s (WADA) position.
The Wood Review recommends (Recommendation 19) extending this immunity, already applicable to ASADA, to the national sporting organisations ‘in their exercise of Anti-Doping Rule Violation functions’. A number of commentators have questioned whether provisions like this, which effectively make organisations less accountable in an environment where athletes already feel powerless, are necessary or proportionate.
A similar impost is sought by the Wood Review in recommending that the ASADA Act be amended to exclude the right held by other members of the community in policing investigations: ‘to claim privilege against self-incrimination when answering a question or providing information to ASADA’ (pp. 107, 129–130).
This exclusion was rejected by the Parliament in previous rounds of amendments, and the protections against ‘non-direct or derivative use’ are unlikely to satisfy the chorus of objections led by the Australian Athletes’ Alliance, lawyers and academics.
The self-incrimination exclusion currently applies to persons within ASADA’s jurisdiction in relation to the production of ‘documents and things’. The Wood Review argues that athletes and athlete-support personnel are already denied this right through the contractual arrangements with their national sporting organisations (p. 129). One possible scenario where this amendment could be of benefit to its detractors, however, is where third parties could be compelled to provide evidence that serves to support or exonerate another person.
Taking on board the mounting evidence that Australian sport, primarily in the men’s professional codes, was at risk of manipulation instigated by organised criminals, the Commonwealth Government took decisive action. Without authority to enact national legislation under the Constitutional external affairs power, the next best solution was to encourage the states and territories to enact harmonised legislation. In June 2011, the Australian Council of Sport and Recreation Ministers adopted the National Policy on Match-Fixing in Sport (the Policy).
Respondents to the Wood Review commended Australia’s ‘proactive approach’, describing its sports integrity system as a global ‘shining light’ (p. 67). As required by the Policy (s.3.4), by November 2011 the Attorneys General met to discuss appropriate sanctions. They agreed that the gambling-related match-fixing behaviour defined in the Policy would attract a maximum of 10 years imprisonment.
However, as the Wood Review and other commentators notes, standardised legislation throughout Australia hasn’t been enacted. For this reason, the Wood Review’s first recommendation is that Australia ratifies the Macolin Convention. Following the ratification of the Convention, national legislation can create consistency within Australia and in a coordinated global response. The Wood Review recommends that, in line with current legislation in NSW, ‘offences relating to the manipulation of sports competitions and related corruption be introduced by the Australian Government and inserted into the Criminal Code Act 1995 and that harmonisation of Commonwealth and state and territory offence provisions be encouraged’ (p. 9).
There seems no reason to delay signing the Convention once the government has completed its response to the Wood Review. In the meantime, Australia was represented at the recent Council of Europe’s third ‘International Conference on the fight against the manipulation of sports competitions – Promoting and Implementing the Macolin Convention’.
The Wood Review is certainly comprehensive, and its recommendations provide a range of solutions that will strengthen current legislative provisions. However, in order to be fully prepared to address the range of sports corruption issues that we see internationally, the Wood Review recommendations do not go far enough.
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Wood Review, pp. 15, 18, 107, 130, 172. At p. 178 the review refers to the ‘National Platform’ being designated as a ‘law enforcement agency’. This would only seem to be necessary if the platform doesn’t sit inside the NSIC.
See, e.g. ‘ACC report: why ASADA needs teeth’, v11(3) Mar 2013 in the World Sport Advocate.
Wood Review, pp. 11, 172–173, 176–185.
Wood Review pp.129–130. Noting concerns raised about the likely effectiveness of whistle-blower protections in an interview with Holmes, T (2018, Aug), The Ticket, https://itunes.apple.com/au/podcast/the-ticket-abc-news/id898138253?mt=2&i=1000417159773
I’ve frequently used the expressions ‘cheating to win’ and ‘cheating to lose’ in publications and in media interviews. I was pleased that the Wood Review also picked it up (p. 41).
For example, Legal academic Roger Pielke in Weinreb, M. (2018, 14 August), ‘Has WADA Helped or Hurt the Anti-Doping Movement?’, Global Sport Matters, https://globalsportmatters.com/science/2018/08/14/has-wada-helped-or-hurt-the-anti-doping-movement/
Standing Council on Law and Justice 18 November 2011 (written on 23 November 2011), Law Society NT, https://lawsocietynt.asn.au/about-lsnt/news/363-standing-council-on-law-and-justice-18-november-2011-.html
Wood Review pp. 103-115; Opie, H. & Lim, G., “The Australian legal framework for countering match-fixing” pp. 59-74 in Steele & Opie (eds) (2017) Match-Fixing in Sport: Comparative Studies from Australia, Japan, Korea and Beyond. Routledge.
Wood Review pp. 8, 13, 65, 70.
The author acknowledges and thanks World Sports Advocate.