Martin Kennedy and Anti-Doping Rule Violation Panel Chief Executive Officer, Australian Sports Anti-Doping Authority JOINED PARTY
[2014] AATA 967
•31 December 2014
[2014] AATA 967
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2014/3008
Re
Martin Kennedy
APPLICANT
And
Anti-Doping Rule Violation Panel
RESPONDENT
And
Chief Executive Officer, Australian Sports Anti-Doping Authority
JOINED PARTY
DECISION
Tribunal Deputy President S E Frost
Date 31 December 2014 Place Sydney The decisions under review are affirmed.
...........................[sgd].............................................
Deputy President S E Frost
CATCHWORDS
SPORT – anti-doping – decision to make entries into the Register of Findings – non-presence anti-doping rule violations – application of and relationship between Australia’s sports anti-doping laws – whether applicant committed possible non-presence anti-doping rule violations – whether ‘possible’ that applicant attempted to use, or possessed, prohibited substances – decision affirmed
PRACTICE AND PROCEDURE – whether Panel should have had regard to mobile phone download material obtained by Australian Customs and Border Protection Service officers – whether on review Tribunal should have regard to this material – whether material improperly obtained – whether material improperly disclosed – consideration of substantial justice – no illegality or unlawfulness present on material before Tribunal
LEGISLATION
Australian Sports Anti-Doping Authority Act 2006; Sch 1 cll 1.01, 1.03A, 1.05, 2.01, 3.26B, 4.07A, 4.09, 4.10, 4.11, 4.12; ss 41(3), 67
Australian Sports Anti-Doping Regulations 2006
Australian Crime Commission Act 2002; ss 4, 20, 59AA
Customs Act 1901; ss 20, 186A
Customs Administration Act 1985; s 16
Administrative Appeals Tribunal Act 1975; s 33(1)(c)Evidence Act 1995; s 138
CASES
Anti-Doping Rule Violation Panel v XZTT [2013] FCAFC 95
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228
Re Salters and Telstra Corporation Ltd [2000] AATA 734; (2000) 31 AAR 500Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
SECONDARY MATERIALS
National Rugby League Anti-Doping Rules
World Anti-Doping Code
REASONS FOR DECISION
Deputy President S E Frost
31 December 2014
NOTE: On 12 June 2015 the Tribunal is publishing this redacted version of its Decision and Reasons following a variation to a confidentiality order made under section 35 of the Administrative Appeals Tribunal Act 1975.
INTRODUCTION
The applicant is a professional rugby league player with the National Rugby League (“NRL”). As a consequence he is a “national-level athlete” for the purposes of Australia’s sports anti-doping laws.
The respondent Panel is a body established under those laws. Among other things it has the responsibility to establish and maintain a Register of Findings (“Register”) for the purpose of recording its findings in relation to anti-doping rule violations.
The joined party, the Chief Executive Officer of the Australian Sports Anti-Doping Authority (“ASADA”), is also invested with a range of functions under those laws.
The Panel, after considering information made available to it relating to the applicant, and after considering submissions made on the applicant’s behalf in relation to that information, decided to make multiple entries on the Register relating to the applicant. It did so because it found that there had been “possible non-presence anti-doping rule violations” by the applicant, specifically the attempted use, and the possession, of various banned substances in August and September 2012.
The Panel’s decisions to make the entries on the Register are reviewable in this Tribunal. Upon receiving notification that the entries had been made on the Register, the applicant applied to the Tribunal for review of the various decisions that had been made. He seeks to have those decisions set aside.
I have decided to affirm the Panel’s decisions. My reasons follow.
THE ISSUES FOR DETERMINATION BY THE TRIBUNAL
The fundamental issue before the Tribunal is whether each of the Panel’s decisions to make an entry on the Register (based on a finding that there had been “possible non-presence anti-doping rule violations” by the applicant) is the correct or preferable decision.
The Panel and the CEO submit that each decision should be affirmed. The applicant disagrees, attacking the Panel’s decisions on two broad bases.
The first is that the Panel, in coming to its decisions, should not have had regard – and similarly, the Tribunal should not have regard – to material that was obtained by officers of the Australian Customs and Border Protection Service (“Customs”) and disseminated to the Australian Crime Commission, and from there to the CEO of ASADA and eventually to the Panel.
The second is that, even if that material is taken into account, it does not disclose that there were “possible non-presence anti-doping rule violations” by him in any event.
AUSTRALIA’S SPORTS ANTI-DOPING LAWS
What I have referred to as “Australia’s sports anti-doping laws” are found in the Australian Sports Anti-Doping Authority Act 2006 (the “ASADA Act”) and in Schedule 1 to the Australian Sports Anti-Doping Authority Regulations 2006 (the “Regulations”). Schedule 1 to the Regulations is known as the National Anti-Doping Scheme or, more commonly, the “NAD scheme”.
Clause 1.01 of the Schedule explains that the NAD scheme is:
… a scheme about the following matters:
(1)the implementation of the General Anti-Doping Convention[1];
(2)the implementation of the UNESCO Anti-Doping Convention[2], in particular Article 3(a) which obliges States Parties to adopt appropriate measures consistent with the principles of the World Anti-Doping Code[3];
(3)ancillary or incidental matters.
[1] Defined in the ASADA Act as “the Anti-Doping Convention, done at Strasbourg on 16 November 1989 [1994] ATS 33”, as amended
[2] Defined in the ASADA Act as “the International Convention Against Doping in Sport, adopted by the UNESCO General Conference at Paris on 19 October 2005”, as amended
[3] Defined in the ASADA Act as “the World Anti-Doping Code adopted by the Foundation Board of WADA [the World Anti-Doping Agency] on 5 March 2003 at Copenhagen”, as amended. There is now a 2009 Code, which was taken into evidence in these proceedings as Exhibit 17
The NAD scheme concerns itself with two broad categories of anti-doping rule violations. The first is an “adverse analytical finding” (broadly, the presence of a prohibited substance in a person’s blood or urine sample); the second is a “possible non-presence anti-doping rule violation”, including use, attempted use, possession or trafficking of a prohibited substance. As already indicated, this case concerns the second category of violation, not the first.
The decision under review was made under clause 4.09(2) of the NAD scheme. Under that provision, the Panel (referred to in the NAD scheme as the “ADRVP”) must “decide whether or not to make an entry on the Register”. It must do that as the final step in a process that commences with the procedures outlined in clause 4.07A.
That process is triggered in any case where, as set out in subclause (1) of clause 4.07A:
(a)the CEO receives evidence or information showing a possible non-presence anti-doping rule violation; and
(b)following a review of the evidence or information, the CEO determines there is a possible non-presence anti-doping rule violation that warrants action by the CEO.
If those circumstances exist, then the CEO must, under subclause (2), “notify the participant [in this case, the applicant] in writing of the possible non-presence anti-doping rule violation”.
After allowing the participant the opportunity to make submissions, the Panel must, under clause 4.09(2), consider any such submissions made by the participant and decide whether or not to make an entry on the Register. As already mentioned, the Panel decided in favour of making multiple entries, and then it proceeded to make those entries under clause 4.10.
The next step is specified in clause 4.11, as follows:
4.11 Notice of entry on Register
(1)As soon as practicable after the ADRVP decides to make an entry on the Register, the CEO must give the participant to whom the finding relates a written notice stating:
(a) details of the finding relating to the adverse analytical finding or possible non-presence anti-doping rule violation; and
(b) that an entry has been made on the Register about the finding; and
(c) that the participant has the right to have the ADRVP’s decision to make the entry on the Register reviewed by the Administrative Appeals Tribunal by application made within 28 days of receipt of the notice; and
(d) the persons or organisations to whom the CEO must or may give written notification of the entry on the Register.
(2)A notice under this clause may also state:
(a) details of any recommendation that the CEO has made, or proposes to make, to relevant sporting organisations about the consequences of the adverse analytical finding or possible non-presence anti-doping rule violation subject to the finding; and
(b) any other details relevant to the finding.
Clause 4.12 completes the picture as far as the specific background to the current application is concerned:
Review by Administrative Appeals Tribunal
An athlete or support person to whom a (sic) entry on the Register relates may, within 28 days of receipt of the notice mentioned in clause 4.11, apply to the Administrative Appeals Tribunal for review of the ADRVP’s decision make (sic) the entry.
BACKGROUND TO THE MAKING OF THE ENTRIES
The applicant’s connection with [John Stevens]
A central figure in this case is a man named [John Stevens] (pseudonym used in accordance with confidentiality orders).
The applicant told ASADA investigators in October 2013 that he had known Mr [Stevens] since 2007[4]. At the time of the interviews the applicant and Mr [Stevens] [redacted][5].
[4] Exhibit 3, page 35
[5] Exhibit 3, page 17
Customs activates an alert in relation to Mr [Stevens]
On 18 April 2013 Customs activated an “Alert” in relation to Mr [Stevens][6]. [redacted]
[6] Exhibit 14, pages 18-22
Customs downloads information from Mr [Stevens]’s mobile phone
On [redacted] April 2013, [redacted], Mr [Stevens] arrived at Sydney International Airport on a flight [redacted].
Customs Officer Trent Robinson was on duty in the baggage examination area. Officer Robinson does not specifically recall examining Mr [Stevens]’s baggage but there are two reports that were created in the Customs document management system that confirm Officer Robinson’s involvement in the examination of Mr [Stevens]’s baggage. One is Information Report [redacted][7] and the other is BAGS report [redacted][8].
[7] Exhibit 14, pages 24-28
[8] Exhibit 5, pages 42-44
The Information Report notes “One Apple Iphone 4s was located and dropped into mobile phone drop point …”[9]. The BAGS report notes “MOBILE PHONE DOWNLOADED”[10].
[9] Exhibit 5, page 22
[10] Exhibit 5, page 44
Officer Robinson explained that he was not trained to examine mobile phones; the examination of Mr [Stevens]’s mobile phone was carried out by Officer Robinson’s colleague, Customs Officer Benjamin Croft.
Officer Croft provided a written statement to the Tribunal which included the following[11]:
[11] Exhibit 5, pages 36-37
[5] I saw that Robinson had removed a number of items from [Stevens]’s bags which were placed on the barrier.
[6] A short time later I had a conversation with Robinson. (Robinson said words to the effect of: “Can you have a look at this phone and see if there’s anything on it?”) As a result of that conversation I picked up from the barrier an Apple I-Phone 4S mobile phone with IMEI number […] belonging to [Stevens].
[7] I then entered a Customs and Border Protection office and connected the mobile phone to a computer which has XRY software enabled and which allow (sic) the contents of mobile phones to be displayed on the computer in a readable format.
[8] I have examined ACBPS records which show that at around 8:28am I commenced the extraction of the data from [Stevens]’s mobile phone onto the computer.
[9] While I have no specific recollection of the examination of [Stevens]’s mobile phone I have conducted numerous examinations of electronic devices in the role as an Electronic Examination Officer and can provide the following explanation of the process I followed when performing those examinations.
[10] The normal process when examining mobile phones is that after the phone has been connected to the computer the data is displayed on the screen in a readable format. The computer used is a stand-alone computer, which is not connected to the ACBPS network. I then conduct a review of the data to search for keywords (such as terms which refer to illicit drugs) or images (including child pornography) to see if the phone may contain information relating to: an importation or exportation of prohibited goods; or the commission of offences against the Customs Act 1901 and other prescribed Acts (which include the Criminal Code Act 1995); or issues of national security; in order to comply with Section 186A of the Customs Act 1901.
[11] If the examination satisfies me that the phone may contain information within those categories I then decide to copy and save the XRY and Excel case file as a temporary file on the computer. That is done by executing an XRY command “export to Excel”.
[12] I would then copy the relevant XRY and Excel case files onto a disk. In this particular case the XRY file was corrupted and so the only file that was effectively copied onto the disk was the Excel file, which has a suffix “.xls”. ACBPS records show that I saved the XRY report from [Stevens]’s phone under the filename […]. (I understand a disk with a copy of that file has been produced to the Tribunal under a summons in this matter.)
[13] The disk is then handed to the baggage officer at the completion of the examination.
Mr [Stevens]’s mobile phone contains text messages between him and the applicant
Stored on Mr [Stevens]’s mobile phone were a number of text messages between his mobile phone number and the applicant’s mobile phone number between July 2012 and February 2013. A list of 83 of those messages[12] was provided to the applicant during the ASADA interviews in October 2013. [redacted]
[12] Exhibit 3, pages 305-311
Information is disseminated to the Australian Crime Commission
On 29 April 2013 Customs Officer Adolfo De La Paz, apparently based in the NSW Intelligence Collection group, sent an email to David Lockley of the Australian Crime Commission (“ACC”)[13], attaching the following two documents:
·the Information Report [redacted][14], prepared by Officer Robinson in respect of the [Stevens] baggage examination conducted on [redacted] April 2013; and
·the Excel spreadsheet containing the information downloaded from Mr [Stevens]’s mobile phone on [redacted] April 2013.
[13] Exhibit 5, page 26
[14] Exhibit 14, pages 24-28
The ACC serves a formal notice on Customs
On 8 July 2013 the ACC issued a notice to Customs under s 20 of the Australian Crime Commission Act 2002 (the “ACC Act”)[15] requiring the production of, among other things, the “complete electronic download of the mobile phone of [John STEVENS]” obtained by Customs on [redacted] April 2013 (the “[Stevens] mobile phone download material”), and the Information Report [redacted] prepared by Customs Officer Robinson in respect of his examination of Mr [Stevens]’s baggage (“[redacted]”)[16]. Of course, the ACC was already in possession of those documents as a result of the email from Customs on 29 April 2013.
[15] See Schedule 3 to these reasons
[16] Exhibit 5, pages 27-28
Customs responded to that notice by supplying the documents to the ACC, for the second time, on 16 July 2013[17].
[17] Exhibit 5, page 29
The ACC provides the material to ASADA
On 26 July 2013 the ACC provided the [Stevens] mobile phone download material and IR [redacted][18] to ASADA pursuant to s 59AA(1) of the ACC Act. The letter accompanying the material noted:
This material has been obtained through the exercise of coercive powers under the ACC Act. …
The documents are ACC property and you may not copy or further disclose them outside your agency without the prior approval of the ACC.
(emphasis in the original)
[18] Exhibit 1, pages 691-692
On 31 July 2013 the ACC wrote to ASADA[19] to indicate:
The ACC has no objection to your using the material for the following purposes:
1. As direct evidence in interviews with persons suspected of committing ADRVs[20];
2. As direct evidence in interviews with persons assisting ASADA with its investigation;
3. As evidence of the possible commission of ADRVs in matters put before the ADRVP for its consideration; and
4. As evidence in hearings before the CAS[21] or other Sporting Tribunals.
[19] Exhibit 3, pages 238-239
[20] Anti-doping rule violations
[21] Court of Arbitration for Sport
ASADA interviews the applicant
As a registered NRL player, the applicant had agreed to be bound by, among other things, the NRL’s Anti-Doping Rules[22], also known as the Anti-Doping Policy or ADP. Clause 102 of the ADP provides that the NRL or ASADA may carry out investigations in relation to whether “Participants” (including players) have committed an ADRV; clause 103 requires Participants to cooperate with any such investigation.
[22] Exhibit 3, page 274
The first interview of the applicant took place on 9 October 2013. The applicant, accompanied by his solicitor, was interviewed by two ASADA officers. Also in attendance was the NRL’s Anti-Doping Coordinator. The applicant was also interviewed by the same ASADA officers on 23 October 2013, again in the presence of his solicitor and the representative of the NRL.
During both interviews the applicant was asked about the content of some of the text messages between him and Mr [Stevens]. [redacted][23]. He was invited to respond, and he said[24]:
You’ve got to understand that I’m sitting here absolutely spinning trying to give you an explanation for it. I’ve got no explanation for it. I don’t know how – I can’t – I can’t explain it to you.
[23] [redacted]
[24] Exhibit 3, page 75, lines 38-40
The applicant was then asked whether he was still using the same phone that he had during the period when the SMS messages were being sent. He said he had changed phones since then. The ASADA officer asked whether the applicant would be prepared to allow ASADA to take a download of his current phone to see “if there’s any sort of innocent explanation”[25]. He declined[26]. However, he readily consented to ASADA examining his bank account[27], and in fact he provided a printout of his financial records at the second interview[28].
[25] Exhibit 3, page 76, lines 33-38
[26] Exhibit 3, page 76, line 40
[27] Exhibit 3, page 77, line 15
[28] Exhibit 3, page 117, line 19
ASADA issues a Disclosure Notice to the applicant
On 6 December 2013 ASADA issued to the applicant a “disclosure notice”[29] under clause 3.26B of the NAD scheme, requiring the applicant to produce, among other things:
Any mobile phone device that you have used since 1 January 2012 to the date of this notice.
[29] Exhibit 3, page 318 and following
When he produced his mobile phone on 19 December 2013 and a forensic analyst attempted to access the information on it, the following conversation took place between the applicant and the ASADA investigator in attendance[30]:
[APPLICANT]: You won’t find anything on there. Not a text, not a photo, nothing. I installed completely new software. You won’t find a thing.
ASADA: So you have completely wiped your phone?
[APPLICANT]: Yep.
ASADA: Did you take any legal advice prior to doing that [name suppressed]?
[APPLICANT]: Yep.
ASADA: And your lawyer said it was ok?
[APPLICANT]: Yep. Its my phone, I can do what I like with it.
[30] Exhibit 3, page 334
ASADA provides notification under clause 4.07A of the NAD scheme
On 28 January 2014 the CEO of ASADA wrote to the applicant, informing him that it had been determined that his actions may constitute possible violations of paragraph (b) of clause 2.01(2) of the NAD scheme, and that his matter would now be referred to the Panel for its consideration[31].
[31] Exhibit 3, page 119
On 5 March 2014 the CEO sent a further notification to the applicant to inform him that it had been determined that his actions may constitute a possible violation of paragraph (f) of clause 2.01(2) of the NAD scheme, and that his matter would now be referred to the Panel for its consideration[32].
[32] Exhibit 3, page 147
Clause 2.01 of the NAD scheme, appearing in Division 2.1, provides relevantly as follows:
2.01 Anti-doping rules
(1)The purpose of this Division is to specify the circumstances and conduct that constitute breaches of the anti-doping rules, or anti-doping rule violations. Entries onto the Register of Findings will proceed based on the assertion that 1 or more of these specific rules has been violated.
(2)Athletes and support persons are responsible for knowing what constitutes an anti-doping rule violation and the substances and methods that have been included on the prohibited list. The following anti-doping rule violations constitute breaches of the anti-doping rules:
(a) …
(b) Use or attempted use by an athlete of a prohibited substance or a prohibited method.
(i)It is each athlete’s personal duty to ensure that no prohibited substance enters his or her body. Accordingly, it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping violation for use of a prohibited substance or a prohibited method.
(ii)The success or failure of the use or attempted use of a prohibited substance or prohibited method is not material. It is sufficient that the prohibited substance or prohibited method was used or attempted to be used for an anti-doping rule violation to be committed.
(c) …
(d) …
(e) …
(f) Possession of prohibited substances and prohibited methods.
(i)Possession by an athlete in competition of a prohibited method or a prohibited substance, or possession by an athlete out of competition of a prohibited method or any prohibited substance that is prohibited out of competition unless the athlete establishes that the possession is authorised by a therapeutic use exemption granted in accordance with the World Anti-Doping Code and the International Standard for Therapeutic Use Exemptions or other acceptable justification.
(ii)Possession by a support person in competition of a prohibited method or a prohibited substance, or possession by a support person out of competition of a prohibited method or a prohibited substance that is prohibited out of competition in connection with an athlete, competition or training, unless the support person establishes that the possession is authorised by a therapeutic use exemption granted to an athlete in accordance with the World Anti-Doping Code and the International Standard for Therapeutic Use Exemptions or other acceptable justification.
(g) …
(h) …
He was invited to provide written submissions in relation to each determination, which he did[33].
[33] Exhibit 3, page 137 and 151 respectively
The Panel considers the information and decides to make entries on the Register
The Panel met on 22 May 2014 to consider the information relating to the applicant. It decided to make five entries on the Register[34]. Each entry would be for a “possible non-presence ADRV”: attempted use of [redacted]; and possession of [redacted].
[34] Exhibit 3, page 364
The applicant was notified of the decision by the CEO of ASADA on 26 May 2014[35]. In the notification document the possible non-presence ADRVs were separately identified as:
·[redacted];
·[redacted];
·[redacted];
·[redacted];
·[redacted].
[35] Exhibit 3, page 368
It is convenient to refer to these as ADRVs 1, 2, 3, 4 and 5 respectively.
It is noted that ADRV 5, as notified to the applicant, differs from the content of the Panel’s decision as to the entry to be made on the Register, which was described as “[redacted]”. It was confirmed in the Panel’s statement of reasons provided to the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) that the Panel did not make an entry on the Register in respect of the possible ADRV [redacted].
There is no dispute that the substances identified were at the relevant times prohibited substances for the purposes of the NAD scheme.
WHAT DOES THE PANEL’S DECISION SIGNIFY?
It is appropriate to pause here and consider exactly what the Panel’s decision to make the entries on the Register signifies.
Although the Register is described as a “Register of Findings”, it is not the case that the Panel needs to make a positive finding that, for example, the applicant actually used a prohibited substance (ADRVs [redacted]) before it can make an entry on the Register. This is because, in the NAD scheme, a “finding” is a finding by the Panel that, relevantly, “it is possible that an athlete … has committed a non-presence anti-doping rule violation” (clause 1.05A(b): emphasis added). Whether the applicant actually committed a non-presence anti-doping rule violation is not a question for the Panel; that is a question, in an appropriate case, for the body set up by the relevant sporting organisation in compliance with Article 8 of the World Anti-Doping Code. Clause 1.03A(2) of the NAD scheme provides that the Panel “does not have the function of acting as a hearing panel of the kind mentioned in Article 8 of the World Anti-Doping Code”. That clause confirms what is said in s 41(3) of the ASADA Act, namely: “To avoid doubt, the ADRVP is not a hearing body within the meaning of Article 8 of the World Anti-Doping Code”. In the applicant’s case the relevant “hearing body” is the NRL’s Anti-Doping Tribunal.
The Full Federal Court considered the nature of the Panel’s “findings” in Anti-Doping Rule Violation Panel v XZTT [2013] FCAFC 95, in respect of an international cyclist whose “Article 8 hearing body” was the Court of Arbitration for Sport (CAS). The Court explained:
[80] Article 8 of the WADA Code entitled ‘Right to a Fair Hearing’ makes it clear that the hearing process [before the CAS] is for any person ‘who is asserted to have committed [a Violation]’ (emphasis added). It goes on to say that such hearing process shall ‘address whether [a Violation] was committed and, if so, the appropriate consequences’
…
[98] Despite the unfortunate definition of ‘finding’, the Panel conducts no final determination process and no ‘hearing’. Its administrative process to record an entry onto the Register is quite separate from the contractual steps that lead to a hearing in the CAS. The Panel is not involved in that hearing. It is the result of that hearing alone (unless an athlete accepts the sanction) which considers the case against and for an athlete.
[99] The Panel contends, and we accept, that, with respect, the error in the approach taken by the AAT is that it treated the Panel as if it was to make actual findings of violations and that it records such actual breaches on a Register. If this were so and the Panel were recording established, not asserted breaches, it would achieve a bypassing of all the appropriate contractual steps mandated by the WADA Code and a bypassing of any meaningful right by an athlete to be heard in relation to a possible sanction. It would involve the Panel usurping the proper function of the CAS. The Panel would be complicit in violating athletes’ rights to procedural fairness. It would produce results inconsistent with ‘the principles of the [WADA Code]’. Given the detailed provisions in the WADA Code concerning the right to a hearing dealing with the burden of proof and standard of proof, this internal process by the Panel would be completely at odds with the provisions under the WADA Code if, at this point, the entry was to be the hearing to which the WADA Code referred. If the Panel were recording a violation at this point, it would be denying the athlete all the processes set out in the WADA Code for a hearing. (emphasis added by the Full Court)
This explanation makes it plain that the Panel’s findings are that it is possible that the applicant attempted to use, or possessed, prohibited substances.
WHAT IS THE TRIBUNAL’S ROLE ON REVIEW?
The Tribunal’s role on review is by now well known. It was described in the following way by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
In the current case a critical question is whether the Panel should have had regard (and, on review, whether the Tribunal should have regard) to the [Stevens] mobile phone download material. The applicant submits that the material did not come lawfully to the CEO of ASADA or to the Panel. For that reason it should not be taken into account either by the Panel or by the Tribunal in deciding whether entries should be made on the Register in respect of the applicant.
SUMMARY OF THE APPLICANT’S SUBMISSIONS WITH RESPECT TO THE [STEVENS] MOBILE PHONE DOWNLOAD MATERIAL
The applicant accepts that Mr [Stevens]’s mobile phone answered the description “goods subject to the control of the Customs” for the purposes of the Customs Act 1901 when Mr [Stevens] arrived at Sydney airport on [redacted] April 2013. Accordingly, any Customs officer had the power to “examine” the phone[36], including by reading “documents” that it contained, and for the purposes of the Customs Act, the phone itself was also a “document”.
[36] s 186 of the Customs Act – see Schedule 1 to these reasons
However, the applicant submits that the power to copy the contents of the phone is relatively narrow. He submits that neither Officer Robinson nor Officer Croft had reached the requisite level of satisfaction under s 186A of the Customs Act[37] to authorise the copying of the information on Mr [Stevens]’s phone. Furthermore, the [Stevens] mobile phone download material did not meet the preconditions to the exercise of the power under s 186A(1) because it did not concern the importation or exportation of prohibited goods, the commission or attempted commission of an offence against the Customs Act or any of the prescribed Acts, and was not relevant to any ASIO or other intelligence function.
[37] See Schedule 1 to these reasons
Because the copying of the material was not authorised by the Customs Act, the product of the copying could not properly be disclosed to the ACC. It was therefore not “ACC information” within s 4 of the ACC Act[38] and could not properly be disseminated by the ACC to ASADA.
[38] See Schedule 3 to these reasons
Alternatively, should ASADA seek to rely on s 67 of the ASADA Act[39], the applicant submits that the material is not “protected information” for the purposes of s 16 of the Customs Administration Act 1985[40], and the limitation in s 67(1)(c) of the ASADA Act has not been complied with, since the material did not relate to “the importation into Australia, or the attempted importation into Australia, of a prohibited substance”.
[39] See Schedule 4 to these reasons
[40] See Schedule 2 to these reasons
Because of these shortcomings the applicant submits that the Tribunal should not have regard to the [Stevens] mobile phone download material because to do so would not deliver “substantial justice”: R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256, per Evatt J.
SUMMARY OF THE PANEL’S AND THE CEO’S SUBMISSIONS WITH RESPECT TO THE [STEVENS] MOBILE PHONE DOWNLOAD MATERIAL
The Panel and the CEO of ASADA submit that any complaint on the part of the applicant about the “unlawfulness” or “invalidity” of certain conduct, and in particular the conduct of the Customs officers, amounts to “an impermissible attempt to seek judicial review in a merits review tribunal”.
They submit that there is no basis for an applicant in the Tribunal to complain that a primary decision was invalid or affected by legal error. By commencing proceedings in the Tribunal, the applicant has necessarily elected to affirm the validity or lawfulness of the original decision. Furthermore, they submit that the applicant’s position is compounded by the fact that the complaints are not a direct attack on the validity of the Panel’s decision but an indirect attack, impugning as they do the conduct of the Customs officers, the ACC and the CEO of ASADA, despite the fact that the Tribunal has no jurisdiction to entertain a review of the decisions or conduct of any of those individuals or agencies.
In any event, the Panel and the CEO submit that the copying of the [Stevens] mobile phone download material was not unlawful or invalid. They also submit that the path taken by the material, from Customs to the ACC and then to the CEO, was at every stage in accordance with relevant statutory provisions, so that it was also obtained lawfully by the CEO. But even if the Tribunal should conclude otherwise, they submit that the Tribunal has no discretion to exclude relevant material on the basis that it was unlawfully or improperly obtained. The Tribunal’s function is to make the correct or preferable decision; accordingly, it should inform itself of all probative material going to the question whether the possible non-presence anti-doping rule violations have been established.
CONSIDERATION OF THE COMPETING SUBMISSIONS
I must first reject the Panel’s submission that the actions of the Customs officers are somehow “off limits” in this review proceeding.
The applicant has drawn to the Tribunal’s attention his perception that the requirements of the Customs legislation were not complied with when the [Stevens] mobile phone download material was copied. He says that, on the facts that should be found by the Tribunal, Customs should never have had a copy of the material; it could not have been in a position to share it with the ACC; the ACC could not have passed it to the CEO of ASADA; and it should never have been before the Panel. The obvious consequence of that path of reasoning is a submission that the correct or preferable decision was not made by the Panel because it took into account material that it should not have taken into account. The Tribunal should now come to the matter afresh, decline to take that material into account, and make its own decision on the merits. With respect, that is a long way from being “an impermissible attempt to seek judicial review in a merits review tribunal”.
Officer Croft said he had “no specific recollection of the examination of [STEVENS]’s mobile phone”[41], but he did explain the “normal process”[42] he undertook when examining mobile phones. He said that he would connect the phone to a stand-alone computer. Once the data from the phone was displayed on the computer’s screen he would “conduct a review of the data to search for keywords … to see if the phone may contain information relating to” any of the matters specified in s 186A(1)(b) of the Customs Act.
[41] Exhibit 5, page 37 at [9]
[42] Exhibit 5, page 37 at [10]
The applicant urges me to find that Officer Croft’s copying of the mobile phone material was not authorised by s 186A of the Customs Act. He submits that the evidence establishes that neither Customs officer, but Officer Croft in particular, was acting in accordance with the Customs legislation.
I do not agree. It is not enough for the applicant to assert that the legislation was not complied with; in this respect I agree with the Panel’s submission[43] as follows[44]:
While there is no legal onus of proof in these proceedings, the Applicant has put the legality of the actions taken by Customs into issue and it is for the Applicant to establish the facts required to make good that contention: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303 at 305; Re Holbrook and Australian Postal Commission (1983) 5 ALN 46 at [23]. This is no more than the application of the common-sense principle that “he who asserts must prove”: Commonwealth of Australia v Muratore (1978) 141 CLR 296 at 302 per Jacobs J and 303 per Murphy J, see also Re Australian Postal Commission v Burgazoff [1989] FCA 153 at [5]-[12].
[43] Respondent’s Outline of Submissions on Legal Issues, at [26]
[44] The submission was put in respect of the question whether there was a proper basis for Customs to disclose the information, but the submission is equally apt in respect of Customs’ copying of the material
Officer Croft’s evidence is of a “normal process” that complies with s 186A. In the absence of countervailing evidence, I would not lightly infer that the process he undertook in relation to Mr [Stevens]’s mobile phone deviated from that normal process.
Given that conclusion, there is no basis to doubt the propriety of the communication of the [Stevens] mobile phone download material from Customs to the ACC, or from the ACC to ASADA. Even if I were to assume, in favour of the applicant, that the initial disclosure by Customs to the ACC was not authorised by s 16 of the Customs Administration Act, the ACC was perfectly entitled to require Customs to produce the material to the ACC under s 20 of the ACC Act, and the ACC was entitled to disseminate it to ASADA under s 59AA of the ACC Act.
Finally, the applicant’s submission based on s 67 of the ASADA Act must be rejected. It proceeds on an assumption that information originally sourced by Customs can only find its way to the CEO of ASADA if the conditions in s 67 are satisfied. But that is not the purpose or effect of s 67. It is plainly designed to be read together with s 16 of the Customs Administration Act, and to establish that in considering whether s 16 authorises the disclosure of information by Customs, ASADA is one of the categories of “Commonwealth agency” to which, subject to specified conditions, disclosure is permitted. It has no role to play in a case where disclosure was made by Customs not to ASADA but to the ACC, and in accordance with s 20 of the ACC Act (whether or not s 16 also applied to the disclosure to the ACC).
In case I am wrong in my conclusion that Officer Croft’s copying of the material was in accordance with the requirements of s 186A of the Customs Act, it is appropriate that I record how I would deal with the material if the copying had not been authorised, and why.
HOW SHOULD THE MATERIAL BE DEALT WITH IF THE COPYING HAD NOT BEEN AUTHORISED BY THE CUSTOMS ACT?
Each of the parties acknowledges that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate: s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (AAT Act).
The applicant submits that this does not mean that the Tribunal should ignore the rules of evidence; instead it should “make every attempt to prevent error including declining to admit evidence illegally obtained, on the basis that to do so would defeat substantial justice”[45]. If material has been obtained by actions beyond statutory power or if access to it or use of it is unauthorised, then the Tribunal should not use the material. If it did use the material, the Tribunal would “involve itself in the illegitimacy and adopt the unauthorised actions”[46]. He submits that it is essentially a question of fairness; the Tribunal should be motivated by a desire to deliver substantial justice by weighing the public interest in permitting the use of the material against the “strong public interest in ensuring that Customs officers act in accordance with the statute and adhere to the statutory limitations provided by Parliament …”[47].
[45] Outline of Submissions for Applicant, at [85]; see also Ex parte Bott, referred to in [58] of these reasons
[46] Outline of Submissions for Applicant, at [86]
[47] Outline of Submissions for Applicant, at [88]
The applicant in his submissions cites earlier decisions of the Tribunal in which consideration has been given to the question whether material, obtained other than in accordance with statutory requirements, ought to be taken into account in review proceedings. Two of those cases are Re Salters and Telstra Corporation Ltd [2000] AATA 734; (2000) 31 AAR 500 and Re Griffiths and Migration Agents Registration Authority [2001] AATA 240.
The Panel characterises both Salters and Griffiths as decisions in which the Tribunal has applied a discretion equivalent to that found in s 138 of the Evidence Act 1995 (Cth). Section 138 provides (only, of course, in circumstances where the rules of evidence apply) that specified classes of evidence are “not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”. The specified classes are evidence that was obtained “improperly or in contravention of an Australian law” and evidence that was obtained “in consequence of an impropriety or of a contravention of an Australian law”.
Both Salters and Griffiths contain detailed commentary on s 138 of the Evidence Act and an analysis of several cases that have considered that provision. And it is also the case that in Salters, the ultimate conclusion not to admit the medical report in question was reached after, and seemingly as a consequence of, “[t]aking all of the matters specified in s 138(3) of the Evidence Act into account”[48]. But as the Deputy President also noted in Salters[49]:
When regard is had to the principles in these cases[50], it seems that the ultimate test is whether it is a “fair thing” that the evidence be admitted. In other words, what does substantial justice require?
[48] [2000] AATA 734 at [74]
[49] [2000] AATA 734 at [68]
[50] In some of the cases s 138 or its common law predecessor was directly relevant; in others, such as Ex parte Bott (see [58] of these reasons) and Re Pochi and The Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33, it was not
In Griffiths, the ultimate reasoning was expressed as follows[51]:
There is no doubt that the issues relating to the cancellation or suspension of a registered migration agent’s [registration] are serious. There is a public interest in ensuring that the body given responsibility for monitoring the conduct of registered migration agents is able to perform its functions and that the Tribunal can properly review its decision. At the same time, there is a public interest in ensuring that such bodies follow proper and appropriate procedures and that evidence is obtained without impropriety. In the context of a case such as this, the scales of public interest tip in favour of the latter rather than the former.
[51] [2001] AATA 240 at [29]
The process of deciding the question whether to make use of the material is informed by considerations of fairness, a desire to deliver substantial justice, and a weighing of the public interest considerations, some of which may point in favour of using the material and some of which may point against.
As far as the notions of fairness and substantial justice are concerned, one must guard against considering them only from the perspective of the applicant. It is not enough to ask whether using the material will deliver fairness and substantial justice to the applicant; one must also ask whether not using the material will deliver fairness and substantial justice to the other stakeholders.
A relevant factor in that particular enquiry is that, even on the assumption being used as the basis for the current discussion, neither the Panel nor the CEO of ASADA was responsible for any shortcoming in compliance with statutory requirements. Both the Panel and the CEO were mere passive recipients of the material in question. The communication to ASADA from the ACC[52] claimed that the material was provided pursuant to s 59AA of the ACC Act and there was no reason for the CEO or any ASADA staff member to suspect that all relevant statutory requirements (imposed on others) had not been complied with. ASADA officers carried out their own statutory obligations with meticulous care. These facts weigh in favour of taking the material into account in these proceedings.
[52] Exhibit 1, page 691
There is considerable public interest in ensuring that all government agencies follow proper procedures and comply with all statutory requirements, particularly those that are designed to protect the rights of citizens in relation to their private affairs. But there is also a considerable public interest in ensuring that the CEO of ASADA can fulfil his or her functions under the ASADA Act and the NAD scheme, including by acting on information of which he or she becomes aware and making recommendations to the Panel about that information. It seems to me that it would hardly be serving the public interest to require the CEO to divert ASADA’s finite resources away from its core functions and into examining whether other government agencies are complying with the law they are charged with administering.
I would take the [Stevens] mobile phone download material into account even if I had been satisfied on the material before me that Officer Croft had not complied with the statutory requirements in making a copy of the material.
CONSIDERATION OF THE INDIVIDUAL ANTI-DOPING RULE VIOLATIONS
It is now necessary to consider whether it is possible that the applicant has committed a non-presence anti-doping rule violation. My consideration of this question must be undertaken in the absence of any direct statement to the Tribunal, whether written or oral, from the applicant.
The word “possible” is not specifically defined in the ASADA Act or the NAD scheme. The Macquarie Dictionary defines it as “that may or can be, exist, happen, be done, be used, etc”; “that may be true or a fact, or may perhaps be the case, as something concerning which one has no knowledge to the contrary”.
Although in one sense almost anything is possible, the NAD scheme contemplates that a relevant finding would only be made if there were material available to the Panel (or the Tribunal on review) which, rationally analysed, could support a finding that it is possible that an athlete has committed a violation. For example, it would not be enough for an assertion to be made that an athlete may have used a prohibited substance on a particular day simply because there was no material that he or she did not do so. That would be a perverse way for the scheme to work.
The material does not need to satisfy the decision-maker to the civil standard of the balance of probabilities. The decision-maker can be satisfied that something is “possible” without being satisfied that it is “probable”, or that it is more likely than not.
Decisions should not be based on material that is tenuous: Anti-Doping Rule Violation Panel v XZTT at [97].
[redacted]
– 109 [redacted]
DECISION
I affirm the Panel’s decision to make the five specified entries on the Register.
ANCILLARY MATTERS
As a consequence of an order I made on 15 July 2014:
·the publication of the name and address of the Applicant and the names and addresses of any witnesses appearing before the Tribunal is restricted to members and staff of the Tribunal, the parties and their representatives, and staff of the Tribunal’s transcription service provider, Merrill Corporation; and
·the publication of any evidence given before the Tribunal, and of any matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, is restricted to members and staff of the Tribunal, the parties and their representatives, and staff of Merrill Corporation,
WITH THE EXCEPTION THAT the parties and their representatives are permitted to inform the NRL and the NRL Anti-Doping Tribunal of the result of the Tribunal’s final decision in these proceedings, including the reasons of the Tribunal and any orders made by the Tribunal.
It is now necessary to consider whether those restrictions should remain in place.
The Tribunal will convene a directions hearing for the purpose of addressing that issue.
89. I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost.
........................[sgd]................................................
Dated 31 December 2014
Dates of hearing Counsel for the Applicant Solicitors for the Applicant Counsel for the Respondent and Joined Party Solicitors for the Respondent and Joined Party SCHEDULE 1 – RELEVANT PROVISIONS OF THE CUSTOMS ACT 1901
186General powers of examination of goods subject to Customs control
(1)Any officer may, subject to subsections (2) and (3), examine any goods subject to the control of the Customs, and the expense of the examination including the cost of removal to the place of examination shall be borne by the owner.
(2)In the exercise of the power to examine goods, the officer of Customs may do, or arrange for another officer of Customs or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the goods concerned.
(3)Without limiting the generality of subsection (2), examples of what may be done in the examination of goods include the following:
(a)opening any package in which goods are or may be contained;
(b)using a device, such as an X-ray machine or ion scanning equipment, on the goods;
(c)testing or analysing the goods;
(d)measuring or counting the goods;
(e)if the goods are a document—reading the document either directly or with the use of an electronic device;
(f)using dogs to assist in examining the goods.
(4)Goods that are subject to the control of Customs under section 31 do not cease to be subject to the control of Customs merely because they are removed from a ship or aircraft in the course of an examination under this section.
186APower to make copies of, and take extracts from, documents in certain circumstances
(1)If:
(a)a document is examined under section 186; and
(b)as a result of that examination, an officer of Customs is satisfied that the document or part of the document may contain information relevant to:
(i)an importation or exportation, or to a proposed importation or exportation, of prohibited goods; or
(ii)the commission or attempted commission of any other offence against this Act or of any offence against a prescribed Act; or
(iii)the performance of functions under section 17 of the Australian Security Intelligence Organisation Act 1979; or
(iv)the performance of functions under section 6 of the Intelligence Services Act 2001; or
(v)security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);
the officer of Customs may make a copy of, or take an extract from, the document, or arrange for another officer of Customs or other person having the necessary experience, to make such a copy or take such an extract.
(2)Without limiting the generality of subsection (1), a copy may be made of, or an extract taken from, a document:
(a)by photocopying the document or a part of the document; or
(b)by photographing the document or a part of the document; or
(c)by electronically scanning the document or a part of the document; or
(d)by making an electronic copy of information contained in the document or a part of the document; or
(e)by making a written copy of information contained in the document or a part of the document.
SCHEDULE 2 – RELEVANT PROVISIONS OF THE
CUSTOMS ADMINISTRATION ACT 198516Prohibition of disclosure of certain information
Overview
(1)This section:
(a)prohibits the unauthorised recording and disclosure of certain information held by the Australian Customs and Border Protection Service; and
(b)provides for exceptions in relation to the prohibition; and
(c)makes particular provision in relation to the authorised disclosure of personal information.
Persons to whom section applies
(1AA)This section applies to:
(a)the CEO; and
(b)a person performing duties in the Australian Customs and Border Protection Service as a person employed or engaged by the Commonwealth, a Commonwealth agency, a State or a State agency; and
(c)any of the following persons:
(i)a person engaged to provide goods or services to the Commonwealth through the Australian Customs and Border Protection Service (whether or not under an agreement to which the Commonwealth is a party);
(ii)if the person mentioned in subparagraph (i) is a body corporate—a director, an employee or an agent of the body corporate;
(iii)if the person mentioned in subparagraph (i) is an individual—an employee or agent of the individual; and
(d)a person to whom the CEO has delegated a power or function of the CEO under a law of customs or any other law of the Commonwealth; and
(e)a person authorised by the CEO to exercise a power or function under a law of customs or any other law of the Commonwealth.
Definitions
(1A)In this section:
Commonwealth agency means any instrumentality or agency of the Crown in right of the Commonwealth and includes:
(a)a department of the public service of the Commonwealth; and
(b)any body corporate in which the Commonwealth holds a controlling interest;
but does not include a Minister of the Crown in right of the Commonwealth.
duties, in relation to a person, means the duties of the person in the capacity because of which he or she is a person to whom this section applies and only includes such duties that are performed in or in connection with the Australian Customs and Border Protection Service.
Example:In the case of a person who is employed by a State agency, the person’s duties, for the purposes of this section, include only those duties performed in or in connection with the Australian Customs and Border Protection Service as such an employee and does not include the person’s other duties as an employee of that State agency.
international organisation means:
(a)an international organisation within the meaning of the Diplomatic Privileges and Immunities Act 1967; and
(b)any other international organisation prescribed by the regulations for the purposes of this paragraph.
personal information has the same meaning as in the Privacy Act 1988.
principal officer, in relation to a Commonwealth agency or a State agency, means:
(a)if the agency is constituted by one person—that person; and
(b)if the agency is constituted by more than one person—the person who is entitled to preside at any meeting of the agency at which he or she is present; and
(c)in any other case—the person holding, or performing the duties of, the office of the head of that agency.
protected information means information that directly or indirectly comes to the knowledge of, or into the possession of, a person while he or she is performing his or her duties (whether the information is related to those duties or not).
State includes the Australian Capital Territory, the Northern Territory and Norfolk Island.
State agency means any instrumentality or agency of the Crown in right of a State, and includes a department of the public service of the State and any body corporate in which the State holds a controlling interest, but does not include a Minister of the Crown in right of the State, a municipal corporation or any other local government body.
Prohibition against disclosure etc. of protected information
(2)A person who is or has been a person to whom this section applies must not directly or indirectly:
(a)make a record of any protected information; or
(b)disclose to any person any protected information;
except:
(c)as authorised by this section; or
(ca)for the purposes of the Law Enforcement Integrity Commissioner Act 2006 or regulations under that Act; or
(d)as required or authorised by any other law; or
(e)in the course of performing the person’s duties.
Penalty:Imprisonment for 2 years.
Authorised disclosure under this section
(3)Subject to subsections (7), (8) and (10), a person is authorised by this section to carry out an act referred to in paragraph (2)(a) or (b) if it is carried out:
(a)in accordance with an authorisation by the CEO that is referred to in subsection (3A), (3B), (3C) or (3D); or
(b)as provided in subsection (3F), (3G) or (3H).
CEO’s authorisation—Commonwealth agency
(3A)Subject to subsections (3E), (7), (8) and (10), if the CEO is satisfied that:
(a)information or a class of information held by the Australian Customs and Border Protection Service will be used by a Commonwealth agency for the purposes of that agency’s functions; and
(b)the Commonwealth agency has undertaken not to use or further disclose such information or class of information except for the purpose referred to in paragraph (d) or otherwise as required or authorised by law;
the CEO may in writing:
(c)authorise the disclosure by a person of the information or the class of information to the principal officer of, or a person authorised to act on behalf of, that agency; and
(d)specify the purpose for which the disclosure is authorised to be made and the manner in which, or the conditions under which, the disclosure is to be made (including the form in which the information is to be presented and the mode of transmitting that information).
CEO’s authorisation—State agency for Commonwealth purposes
(3B)Subject to subsections (3E), (7), (8) and (10), if the CEO is satisfied that:
(a)information or a class of information held by the Australian Customs and Border Protection Service will be used by a State agency for purposes relating to the carrying out of a Commonwealth function by that agency; and
(b)the State agency has undertaken not to use or further disclose such information or class of information except for the purpose referred to in paragraph (d) or otherwise as required or authorised by law;
the CEO may in writing:
(c)authorise the disclosure by a person of the information or the class of information to the principal officer of, or a person authorised to act on behalf of, that agency; and
(d)specify the purpose for which the disclosure is authorised to be made and the manner in which, or the conditions under which, the disclosure is to be made (including the form in which the information is to be presented and the mode of transmitting that information).
CEO’s authorisation—State agency for State purposes
(3C)Subject to subsections (3E), (7), (8) and (10), if the CEO is satisfied that:
(a)information or a class of information held by the Australian Customs and Border Protection Service will be used by a State agency for the purposes of the performance of the functions of the State agency; and
(b)the State agency has undertaken not to use or further disclose such information or class of information except for the purpose referred to in paragraph (d) or otherwise as required or authorised by law;
the CEO may in writing:
(c)authorise the disclosure by a person of the information or the class of information to the principal officer of, or a person authorised to act on behalf of, that agency; and
(d)specify the purpose for which the disclosure is authorised to be made and the manner in which, or the conditions under which, the disclosure is to be made (including the form in which the information is to be presented and the mode of transmitting that information).
CEO’s authorisation—certain agreements
(3D)Subject to subsections (3E), (7), (8) and (10), if the CEO is satisfied that:
(a)information or a class of information held by the Australian Customs and Border Protection Service will be used in accordance with an agreement that has been entered into by the Commonwealth or a Commonwealth agency and one or more of any of the following:
(i)a foreign country;
(ii)an instrumentality or agency of a foreign country;
(iii)an international organisation; and
(b)the country, instrumentality, agency or organisation has undertaken not to use or further disclose that information except for the purpose referred to in paragraph (d) or otherwise as required or authorised by law;
the CEO may in writing:
(c)authorise the disclosure by a person of the information or the class of the information to a person authorised to act on behalf of that country, instrumentality, agency or organisation; and
(d)specify the purpose for which the disclosure is authorised to be made and the manner in which, or the conditions under which, the disclosure is to be made (including the form in which the information is to be presented and the mode of transmitting that information).
Specified purpose in an authorisation by the CEO
(3E)The CEO may only specify a purpose for the disclosure of information or a class of information in an authorisation under subsection (3A), (3B), (3C) or (3D) that:
(a)in the case of subsection (3A)—is related to the performance of the functions of the Commonwealth agency concerned; and
(b)in the case of subsection (3B)—is related to the performance of the Commonwealth function concerned; and
(c)in the case of subsection (3C)—is related to the performance of the functions of the State agency concerned; and
(d)in the case of subsection (3D)—is related to the purpose of the agreement concerned.
Note:The obligations under subsection (3E) is affected by paragraph (8)(b) if the information concerned contains personal information.
Authorised disclosure because of threat to health or life
(3F)A person may carry out an act referred to in paragraph (2)(a) or (b) if there are reasonable grounds for that person to believe that:
(a)a serious and imminent threat to the health or life of a person or persons exists or might exist; and
(b)it is necessary to carry out that act in order to avert or reduce that threat.
Body corporate may consent to disclosure
(3G)If the CEO is satisfied that the principal officer of, or a person authorised to act on behalf of, a body corporate has consented to the disclosure to a person of information or a class of information (not including personal information) about the body, the CEO may authorise, in writing, the disclosure of the information to the person.
Government agencies, foreign countries or international organisations may consent to disclosure
(3H)If the CEO is satisfied that a Commonwealth agency, State agency, a foreign country, an instrumentality or agency of a foreign country or an international organisation has consented to the disclosure to a person of information or a class of information (not including personal information) about the agency, country, instrumentality or organisation, the CEO may authorise, in writing, the disclosure of the information to the person.
Disclosure of personal information
(7)If:
(a)apart from this subsection, a person is authorised by this section to carry out an act referred to in paragraph (2)(b) because of the operation of subsection (3A), (3B), (3C) or (3D); and
(b)the act involves the disclosure by the person to someone else of information (including a class of information) that contains personal information;
then, despite the above provisions of this section, the person is not to be taken to be authorised by this section to carry out the act unless:
(c)the person to whom the information relates has consented to the disclosure; or
(d)the following apply:
(i)in the case of any disclosure of information—the disclosure complies with subsection (8);
(ii)in the case of a disclosure of a class of information—the disclosure also complies with subsection (10).
Requirements applicable to disclosure of personal information
(8)This subsection is complied with in relation to the disclosure of information as referred to in subparagraph (7)(d)(i) if:
(a)the CEO is satisfied that the disclosure is necessary for a permissible purpose referred to in a paragraph of subsection (9); and
(b)the purpose is specified as a purpose for which the disclosure is authorised to be made in an authorisation under subsection (3A), (3B), (3C) or (3D) that applies to the disclosure; and
(c)the disclosure is made for that purpose.
Permissible purposes
(9)A purpose specified in any of the following paragraphs is a permissible purpose for the purpose of subsection (8):
(a)the administration or enforcement of a law of the Commonwealth, of a Territory or of another country that relates to:
(i)criminal law; or
(ii)a law imposing a pecuniary penalty or providing for the forfeiture of property;
(b)in relation to a law referred to in paragraph (a), the prevention of crime, or the detection or analysis of criminal conduct, in respect of that law;
(c)the administration or enforcement of a law of a State that relates to:
(i)criminal law; or
(ii)a law imposing a pecuniary penalty or providing for the forfeiture of property;
(d)in relation to a law referred to in paragraph (c), the prevention of crime, or the detection or analysis of criminal conduct, in respect of that law;
(e)a purpose relating to the protection of public health, or the prevention or elimination of risks to the life or safety of an individual or a group of individuals;
(ea)the collection and verification of statistics for the purposes of the Census and Statistics Act 1905 and the performance of the functions of the Australian Bureau of Statistics as set out in section 6 of the Australian Bureau of Statistics Act 1975;
(f)the protection of the public revenue of the Commonwealth, a Territory or another country;
(g)the protection of the public revenue of a State;
(h)a purpose relating to a law of customs;
(i)a purpose relating to immigration, quarantine or border control between Australia and another country;
(ia)a purpose relating to the performance of functions under section 17 of the Australian Security Intelligence Organisation Act 1979;
(ib)a purpose relating to the performance of functions under section 6 of the Intelligence Services Act 2001;
(j)the administration or enforcement of laws with respect to commerce:
(i)between a State and another State; or
(ii)between a State and a Territory; or
(iii)between a Territory and another Territory; or
(iv)between Australia and another country;
(k)the administration or enforcement of laws with respect to commerce within a State.
Additional requirements concerning classes of information
(10)This subsection is complied with in relation to a disclosure of a class of information pursuant to an authorisation under subsection (3A), (3B), (3C) or (3D) as referred to in subsection (7) if:
(a)the disclosure is made to a Commonwealth agency, State agency, a foreign country, an instrumentality or agency of a foreign country or an international organisation, that is specified in the regulations; and
(b)the class of information specified by the CEO in the authorisation is specified in the regulations as a class of information that may be disclosed to the agency, country, instrumentality or organisation concerned.
SCHEDULE 3 – RELEVANT PROVISIONS OF THE
AUSTRALIAN CRIME COMMISSION ACT 20024Interpretation
(1)In this Act, unless the contrary intention appears:
ACC means the Australian Crime Commission established by section 7.
ACC information means information that is in the ACC’s possession.
ACC operation/investigation means:
(a)an intelligence operation that the ACC is undertaking; or
(b)an investigation into matters relating to federally relevant criminal activity that the ACC is conducting.
However, an ACC operation/investigation does not include an integrity operation.
20Examiner may require information from agencies in certain cases
(1)Subject to section 20A, an examiner may, by notice in writing served on the principal officer of an agency, or on a person who is, or has been, a member, officer or employee of an agency, require that principal officer, or that person, as the case may be, to furnish to the examiner, by writing signed by that principal officer, or by that person, within the time and in the manner specified in the notice, information so specified, being information that:
(a)was acquired by the first-mentioned agency in the ordinary course of performing its functions, or was acquired by that person in that person’s capacity as a member, officer or employee of the second-mentioned agency, as the case may be; and
(b)is relevant to an ACC operation/investigation.
(2)Subject to section 20A, an examiner may, by notice in writing served on the principal officer of an agency, require that principal officer:
(a)to attend, at a time and place specified in the notice, before a person specified in the notice, being the examiner or a member of the staff of the ACC; and
(b)to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that relates to the performance by the agency of its functions and is relevant to an ACC operation/investigation.
(4)Subject to a prescribed provision, but notwithstanding a secrecy provision other than a prescribed provision, a person shall not refuse or fail to comply with a notice served on the person under this section.
Note:If the information is protected information (within the meaning of section 355-30 in Schedule 1 to the Taxation Administration Act 1953), the officer or person may decline to disclose that information unless an exception in Division 355 in that Schedule covers the disclosure.
(5)In this section:
agency means a Commonwealth agency or a State agency.
Commonwealth agency means an agency within the meaning of the Freedom of Information Act 1982.
law of the Commonwealth includes a law of a Territory.
prescribed provision means:
(a)a taxation secrecy provision; or
(aa)a secrecy provision specified in an arrangement under section 20A; or
(b)a provision of a law of the Commonwealth that is specified in Schedule 1; or
(c)anything done under a provision of the kind referred to in paragraph (b).
principal officer means:
(a)in relation to a Commonwealth agency—the person who is the principal officer of the agency for the purposes of the Freedom of Information Act 1982; or
(b)in relation to a State agency—the person holding office or acting as head (however described) of the agency.
State agency means the following agencies:
(a)a Department of a State;
(b)an instrumentality of a State, including a body corporate established for a public purpose by or under a law of a State;
(c)a company in which a controlling interest is held by any one of the following persons, or by 2 or more of the following persons together:
(i)the Crown in right of a State;
(ii)a person or body covered by paragraph (b);
(iii)a person or body covered by either of the above subparagraphs.
(6)The regulations may amend Schedule 1 by inserting in Schedule 1, or by omitting from Schedule 1, a reference to a provision of a law of the Commonwealth.
Penalty:10 penalty units or imprisonment for 6 months.
59AADisclosing information to government bodies
Commonwealth, State, Territory and foreign agencies etc.
(1)The CEO may disclose ACC information to:
(a)a body of the Commonwealth, a State or a Territory; or
(b)a person who holds an office or appointment under a law of the Commonwealth, a State or a Territory; or
(c)an agency that has responsibility for:
(i)law enforcement in a foreign country; or
(ii)intelligence gathering for a foreign country; or
(iii)the security of a foreign country; or
(d)an international body that:
(i)has functions relating to law enforcement or gathering intelligence; and
(ii)is prescribed by the regulations for the purposes of this paragraph; or
(e)an international judicial body that is prescribed by the regulations for the purposes of this paragraph;
if:
(f)the CEO considers it appropriate to do so; and
(g)the CEO considers that the information is relevant to a permissible purpose; and
(h)disclosing the ACC information would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply.
Note 1:For the definition of body, see subsection (3).
Note 2:This section is subject to any relevant direction given under subsection 25A(9) (see section 59AC).
ASIO
(2)The CEO may disclose ACC information to the Australian Security Intelligence Organisation if:
(a)the CEO considers it appropriate to do so; and
(b)the information is relevant to security (as defined in section 4 of the Australian Security Intelligence Organisation Act 1979); and
(c)disclosing the ACC information would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply.
Definitions
(3)In this section:
body includes:
(a)a body however described; and
(b)a Department of State; and
(c)a body (whether incorporated or not) established for a public purpose by or under a law of the Commonwealth, a State or a Territory; and
(d)a law enforcement agency.
SCHEDULE 4 – RELEVANT PROVISIONS OF THE
AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY ACT 200667CEO’s access to, and use of, customs information
(1)For the purposes of section 16 of the Customs Administration Act 1985:
(a)the ASADA is taken to be a Commonwealth agency; and
(b)the CEO is taken to be the principal officer of that Commonwealth agency; and
(c)if protected information (within the meaning of that section) relates to the importation into Australia, or the attempted importation into Australia, of a prohibited substance (within the meaning of the NAD scheme), and any of the following conditions is satisfied:
(i)the importation or attempted importation contravenes a law of the Commonwealth;
(ii)there are reasonable grounds to suspect that an athlete subject to the NAD scheme, or a support person subject to the NAD scheme, is responsible for the importation or attempted importation;
(iii)there are reasonable grounds to suspect that the prohibited substance is for use by one or more athletes subject to the NAD scheme;
the information is taken to be information that will be used by the ASADA for the purposes of the ASADA’s functions; and
(d)the use or further disclosure of the information for the purpose of:
(i)the CEO’s administration of the NAD scheme; or
(ii)the performance by the CEO of his or her functions under section 68;
is taken to be authorised by law; and
(da)the use or further disclosure of the information for the purpose of the performance by the Advisory Group of its function, to the extent that the performance of the function relates to the CEO’s administration of the NAD scheme, is taken to be authorised by law; and
(db)the use or further disclosure of the information for the purpose of the performance by an advisory committee of its functions, to the extent that the performance of a function relates to the CEO’s administration of the NAD scheme, is taken to be authorised by law; and
(dc)the use or further disclosure of the information for the purpose of the performance by the ADRVP of its functions under the NAD scheme is taken to be authorised by law; and
(e)the purpose of the CEO’s administration of the NAD scheme is taken to be a permissible purpose referred to in a paragraph of subsection 16(9) of the Customs Administration Act 1985; and
(f)the purpose of the performance by the CEO of his or her functions under section 68 is taken to be a permissible purpose referred to in a paragraph of subsection 16(9) of the Customs Administration Act 1985; and
(fa)the purpose of the performance by the Advisory Group of its function, to the extent that the performance of the function relates to the CEO’s administration of the NAD scheme, is taken to be a permissible purpose referred to in a paragraph of subsection 16(9) of the Customs Administration Act 1985; and
(fb)the purpose of the performance by an advisory committee of its functions, to the extent that the performance of a function relates to the CEO’s administration of the NAD scheme, is taken to be a permissible purpose referred to in a paragraph of subsection 16(9) of the Customs Administration Act 1985; and
(fc)the purpose of the performance by the ADRVP of its functions under the NAD scheme is taken to be a permissible purpose referred to in a paragraph of subsection 16(9) of the Customs Administration Act 1985; and
(g)the disclosure of the information, under section 16 of the Customs Administration Act 1985, to the CEO, or to a person acting on the CEO’s behalf:
(i)is taken to be necessary for a permissible purpose mentioned in paragraph (e), (f), (fa), (fb) or (fc); and
(ii)is taken to comply with subsection 16(10) of the Customs Administration Act 1985.
Protected customs information
(2)For the purposes of this Act, protected customs information is information given to the CEO, or to a person acting on the CEO’s behalf, under section 16 of the Customs Administration Act 1985.
(3)The CEO, in administering the NAD scheme, may have regard to protected customs information.
(4)Subsection (3) does not limit the matters to which the CEO may have regard.
(5)The CEO may disclose protected customs information to the Advisory Group, an advisory committee or the ADRVP for the purpose of any of those bodies performing a function, to the extent that the performance of the function relates to the CEO’s administration of the NAD scheme.
(6)When performing a function, the Advisory Group, an advisory committee or the ADRVP may have regard to protected customs information.
(7)Subsection (6) does not limit the matters to which the Advisory Group, an advisory committee or the ADRVP may have regard.
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