Vaassen and Australian Sports Drug Agency

DECISION AND REASONS FOR DECISION [2002] AATA 167

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Henk Vaassen
  Applicant
           And    Australian Sports Drug Agency
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date14 March 2002
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
AUSTRALIAN SPORTS DRUG AGENCY – drug testing – urine sample collection procedure – illegal use of pseudoephedrine – positive test result

Australian Sports Drug Agency Act 1990 ss 11(1), 11(2), 14, 20, 29, 15(4), 16(1), 17(a)
Australian Sports Drug Agency Regulations 1999 reg 29
Australian Sports Drug Agency Drug Testing (Scheme A) Orders 1999

"VZZ" and Australian Sports Drug Agency [2001] AATA 776

REASONS FOR DECISION

14 March 2002 R P Handley

This is an application by Henk Vaassen ("the Applicant") for a review of the decision for the Australian Sports Drug Agency ("the Respondent") made on 13 December 2000, not to determine a positive test result made in relation to Mr Vaassen to be invalid and to enter his name on the Register of Notifiable Events.
At the hearing, Mr Vaassen was represented by his father, Leo Vaassen, and the Respondent was represented by John Marshall, of Counsel. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the exhibits tendered by the parties. The Applicant, Jodie Till, Graham Trout and Christopher Fouracre gave oral evidence at the hearing.
BACKGROUND
Henk Vaassen was born on 29 April 1974 and is aged 27. On 20 August 2000, he competed in the Australian Road Cycling Championships 2000, which were held in Victoria. This was a six to seven hour race. After the race, Mr Vaassen was selected for the collection of a urine sample for drug testing. He provided a urine sample in accordance with the normal sample collection procedure which included pouring his sample into containers marked A and B, sealing the containers, and placing them in polystyrene containers for transportation. The carrier bag containing the samples was dispatched by courier to the Australian Sports Drug Testing Laboratory (ASDTL) in Sydney, where it was received on 22 August 2000 at 10:15 am. ASDTL is a fully accredited laboratory for the purpose of testing for the use of drugs in sport.
The A sample of urine provided by Mr Vaassen was analyzed on 6 September 2000 at ASDTL's Sydney premises and revealed the presence of pseudoephedrine greater than 25 micrograms per millilitre. Pseudoephedrine is a scheduled drug under the Olympic Movement Anti-Doping Code (T29). ASDTL advised the Respondent of the positive test result by fax dated 6 September 2000 (T8).
On 27 September 2000, ASDA contacted Mr Vaassen by telephone to advise him of the positive test result for his A Sample and that he was entitled to attend to watch the unsealing of the B Sample and the testing of its contents at ASDTL's Sydney premises on Monday 8 October (T9). This was also confirmed by letter of 27 September 2000 (T10). In response to a query from Mr Vaassen's solicitor, ASDA later clarified that the unsealing and testing of the B Sample would take place on Monday 9 October (T11).
On Monday 9 October 2000, Mr Vaassen and his legal representative, Ms Till, attended ASDTL's premises in Sydney. The B Sample was opened in the presence of Dr Graham Trout of ASDTL, Mr Vaassen and Ms Till. The B Sample was then handed to Dr Christopher Fouracre of ASDTL to carry out the analysis. There is a dispute between the parties as to what was said to Mr Vaassen and Ms Till about their staying to watch the testing of the sample. Mr Vaassen and Ms Till subsequently left ASDTL's premises without observing the testing being performed.
On 9 October 2000, Dr Fouracre commenced testing the B Sample for the presence of pseudoephedrine and a review of the data generated was completed on the morning of 10 October 2000. On 11 October 2000, ASDTL advised the Respondent of a positive test result showing a concentration of pseudoephedrine in the B Sample of greater than 25 micrograms per millilitre (T15). By letter dated 2 November 2000 (T16), ASDA notified Mr Vaassen of the positive test result. Mr Vaassen was invited to make a written submission to the Respondent within 7 days of receiving the letter "if you have any information or evidence that may affect the validity of the results of the Part B Sample".
By fax dated 13 November 2000, Mr Vaassen's solicitor wrote to the Respondent alleging irregularities in the testing procedure followed on 9 October 2000 and alleging a breach of confidentiality in relation to the test result for the A Sample. This fax was considered by the Respondent on 15 November 2000, following which enquiries were made of ASDTL to establish what procedure was followed for the testing of the B Sample.
By email dated 20 November 2000 (T22), Dr Trout of ASDTL stated that the proper procedure had been followed in relation to the B Sample and, on 13 December 2000 (T25), the Respondent notified Mr Vaassen that it had decided that the positive result was valid and that his name should be entered on the Register of Notifiable Events. On 20 December 2000, Mr Vaassen lodged an application with the Tribunal for a review of this decision.
RELEVANT LAW
Section 11 (1) of the Australian Sports Drug Agency Act 1990 ("the Act") provides that regulations made under the Act "may formulate one or more drug testing schemes". A "Drug Testing Scheme" is defined in section 11 (2) as a scheme that sets out: a schedule of drugs and doping methods; authorises the Agency (the Respondent) to request competitors to provide a sample for the purpose of determining whether the person has used a scheduled drug; requires the Agency to establish and maintain a Register of Notifiable Events; and requires the Agency to enter the name of a competitor on that Register. If the competitor fails, without reasonable cause, to comply with a request to provide a sample, or returns a positive test result in relation to such a sample, such a scheme requires the Agency to give written notice of the entry on the Register to relevant national sporting organisations.
Section 14 of the Act provides that a "Positive Test Result" is a finding made by an accredited laboratory or by using specified analytical techniques and equipment, by means of testing of a sample provided by the competitor which reveals the presence of a drug in the sample or the use of a doping method by the competitor, being a drug or doping method included in the schedule of drugs and doping methods specified in the scheme. Where the schedule sets out a permitted level in relation to a drug or doping method and in relation to a particular field of sporting activity, the testing must reveal that the permitted level has been exceeded. Section 15 (4) provides that a competitor has a right to apply to the Tribunal for a review of a decision of the Agency to enter the competitor's name and particulars on the Register of Notifiable Events. Section 16 (1) provides that such a decision is a "reviewable decision".
Section 17 A states:
17A Procedures for dealing with a sample
(1) A drug testing scheme may set out procedures for dealing with a sample.
(2) A drug testing scheme may provide that strict compliance with those procedures is not required and substantial compliance is sufficient.
(3) Subsection (2) does not apply to procedures relating to the following matters:
(a) if samples are tested by accredited laboratories—the laboratories;
(b) if samples are tested using particular analytical techniques and
     equipment - the analytical techniques and equipment;
(c) ensuring that a sample is not tampered with;
(d) ensuring that a sample is securely contained and identified.
(4)       ….
(5)       …

The relevant Australian Sports Drug Agency Regulations 1999 ("the Regulations") are as follows:
REGULATION 20
20       Procedures for collecting and dealing with samples
The orders for a drug testing scheme may state the procedures for collecting and dealing with samples given in response to a request under the scheme.
REGULATION 29
29 Entries about results from tests arranged by Agency
(1)      This regulation applies if:
(a)      the Agency asks a competitor for a sample under regulation 17; and
(b)      the competitor gives the sample in response to the Agency's request; and
(c)      the result of the relevant test of the sample is positive; and
(d)      the relevant submission period has ended; and
(e) the Agency has considered any submission that the competitor has given to the Agency under paragraph 45 (2) (a) or 48 (1) (a); and
(f) the Agency is satisfied that the procedures for collecting and dealing with the sample mentioned in regulation 20 that the relevant orders require the Agency to comply with strictly have been strictly complied with; and
(g)      the Agency has considered any other relevant circumstances; and
(h) the Agency has decided that the test result is valid and must be entered on the relevant register.
(2)      As soon as practicable, the Agency must enter on the relevant register:
(a)      the name of the competitor; and
(b)      the details of the test result; and
(c) any information about the competitor that the relevant orders require the Agency to enter in the circumstances.
(3)      …
(4)      In this regulation:
relevant circumstances includes the following circumstances:
(a)      an investigation conducted by the ASDMAC under subregulation 64 (1), or an analytical investigative body under regulation 25, in relation to the sample, has revealed that the positive test result is not attributable to naturally occurring levels of the substance concerned;
(b)       the competitor had approval from the ASDMAC or a therapeutic approval body for the use of the drug concerned for therapeutic purposes;
(c)      any circumstances stated in the relevant orders for this subregulation.
REGULATION 46
46 What happens if competitor does not waive right to have Part B of sample tested
(1)      This regulation applies if:
(a) the Agency has arranged, under regulation 42, for Part B of the competitor's sample to be tested; and
(b) before the testing day mentioned in paragraph 43 (2) (b) in relation to Part B of the sample, the competitor does not give the Agency a written notice waiving the right to have Part B of the competitor's sample tested.
(2) The competitor is entitled to be present or represented at the testing of Part B of the sample (including the unsealing of the sample).
(3)…
(4)…
(5)…

Regulation 7 enables the Respondent to make drug testing orders for the drug testing scheme called Scheme A with respect to any matter for which Scheme A may or must provide. The Australian Sports Drug Agency Drug Testing (Scheme A) Orders 1999 ("the Orders"), s 8 states:
Except to the extent to which a provision of this Part sets out procedures relating to a matter set out in subsection 17A(3) of the Act, strict compliance with the procedures set out in this Division is not required and substantial compliance with the procedures is sufficient.

Section 57(2) of the Orders states:

The accredited laboratory must test part B of the sample in accordance with the Agency's instructions.

Section 59 sets out the details to be entered on the Register if testing reveals a positive result.

ORAL EVIDENCE
Henk Vaassen (the Applicant)

Mr Vaassen said he went to Victoria to compete in the national cycling championships, a six or seven hour race. At the end of the race, he felt very tired and sick but, when asked, went with the chaperone to be drug tested in the normal way. The procedure took about an hour because he could not give a sample straight away. After that, he went back to his car and changed before going to the medal presentation. He had been through the same drug testing procedure on five or six previous occasions.
It was cold in Victoria the night before the race and Mr Vaassen developed asthma about 8:30 pm. He said he has not had an asthma attack for years. Although he has had asthma since birth, following a healthy lifestyle and being involved in sport has enabled him to control his asthma. The only medication he has had in recent years is a herbal preparation involving garlic cloves marinated in honey, which his father prepares. Mr Vaassen said he has not used a puffer for five or six years and did not have one with him, and everyone was worried and they did not know where the nearest hospital was if he needed treatment.
That night Mr Vaassen was in bed by 8:15 pmbut developed a pain in his chest and felt he could not breathe. His father gave him two tablets of his own medication with a glass of water and, although this did not completely fix the problem, it eased the chest pain and reduced his wheezing. Mr Vaassen said his father suffers from sinus trouble and he assumed the tablets were Sinutab or Sudafed. Next morning, Mr Vaassen asked his father what the tablets were and his father told him that they were Sudafed. His father told him not to worry about it and to try and concentrate on the race because the medication was for a medical reason and should be out of his system before he started the race. In cross-examination, Mr Vaassen acknowledged that he knew Sudafed contained pseudoephedrine and that pseudoephedrine was a substance which could cause a positive test result. He said he was also aware that two tablets taken the night before was not going to be performance enhancing.
Mr Vaassen said on the morning of Monday 9 October 2000, he and Ms Till left early in order to be at ASDTL's laboratory at Pymble in good time. They arrived at about 9:30 am and the appointment was not until 10:00 am. Mr Vaassen said he went to the laboratory in order to verify that it was his sample and to see it being analysed. He had previously confirmed in writing his wish to attend.
Mr Vaassen and Ms Till, who was there as his legal representative, went into the building at about 9:55 am. Ms Till told the receptionist why they were there and five to ten minutes later Dr Graham Trout came out to meet them and explained that he would be handling their matter. He took them through a set of security doors into a conference room, where there was a woman standing at one end of the table with a B Sample container placed on the table. Mr Vaassen verified that it was his sample and then the woman broke the seal and used a special tool to uncork the bottle. At about this time, a man called Chris Fouracre came into the room and introduced himself. Dr Trout said that Chris was not the person who performed the analysis on Mr Vaassen's A Sample but would be handling the analysis of his B Sample. Then Ms Till asked when the testing procedure was to start and when they could witness the analysis of the sample:
Graham said to us, oh, it's not going to be done, it is not going to be done today, we are flat out. It's probably going to be done in the next couple of days, we don't know. We can't tell you. He also mentioned that it is not usual that someone stays and watches the analysis of the second sample because it is such a lengthy procedure.
Mr Vaassen said Ms Till felt that she could not make any further protest at that time but that the appropriate course was to put in a complaint later. Ms Till said that if the testing was not going to be done that day, if Dr Trout could give them a date and time, then they would come back. Ms Till said they had come to watch the analysis of the B Sample. Ms Till then asked what level of pseudoephedrine had been revealed by the analysis of Mr Vaassen's A Sample. Dr Trout said that it was 50 micrograms per millilitre and Mr Vaassen said he was aware that the permitted limit in cycling was 25 micrograms. Ms Till asked Dr Trout what level of pseudoephedrine would result from taking one tablet. Dr Trout said the reading would depend on the person and their metabolism - it could give a reading of between 20 and 100. Ms Till revealed that she had spent six months at the Institute of Forensic Medicine in 1995 doing her thesis on DNA testing and prior to that she had worked for five years for a pharaceutical manufacturing company while she was a student. Dr Trout said there was rarely any difference between results for the A and B Samples.
Shortly after this, Chris took the sample in order to leave the room. He said he would take care of it and would be putting it in the fridge since it was in a frozen state and the seal was broken and it was uncorked. After Chris left the room, the conversation came to an end. Mr Vaassen said he and Ms Till followed Dr Trout out into the foyer again where Dr Trout explained that the pallets left there were the aftermath of testing for the Olympics. The Laboratory was getting ready to do the testing for the Paralympics. Mr Vaassen and Ms Till then left.
With regard to the paperwork, Mr Vaassen said the written verification of the B Sample (T13) was not conducted at 10:00 am as stated on the form but between 10:15 and 10:20 am. The form also did not record that in the room at that time was the woman who broke the seal and uncorked the sample.
Mr Vaassen said shortly after he had been notified of the positive result for his A Sample, the result "leaked out in the cycling community". He said the head of the NSW Institute of Sport, Gary Sutton, telephoned him to ask if it was true that he had had a positive drug test result. Mr Vaassen confided in him that he had. Mr Sutton said that Phil Bates, the biggest cycling promoter, and Ray Godkin also knew. While Mr Vaassen said he denied a positive test result when he was asked by others, relying on advice from his father, his legal representative and his family, "rumours started going around". Mr Vaassen continued to deny the allegations but, after the end of the year he decided to quit cycling because there was no way he could go back to it having been classed as a doper or drug cheat.
Jodie Till
Ms Till said she first became aware that Mr Vaassen had a positive drug test result on 29 September 2000, when he received a letter from the Respondent. On that day, Ms Till phoned the Respondent to arrange an appointment to attend and witness the unsealing and testing of Mr Vaassen's B Sample. Ms Till noted the Respondent had included the wrong date on the letter, which she corrected. On 9 October 2000, she and Mr Vaassen attended ASDTL's laboratory at Pymble, arriving shortly before 10:00 am. After waiting at reception for a short while, they were taken through a security door to a room not far from reception where there was a woman already present who had the B Sample bottle. Dr Trout informed them that this person would be unsealing the bottle. This took place after they had checked that this was the correct sample. When the seal on the sample bottle was broken, she and Mr Vaassen were asked to sign some forms and around that time Chris (Dr Christopher Fouracre) came into the room.
They were informed that Chris would be performing the test and that he was not the person who undertook the test on the A Sample. Ms Till said she assumed that they would be taken to the laboratory to see the testing. A short while later, Chris left the room and Ms Till asked whether they would be going with him to see the test. Dr Trout told them that usually no one stays to see the test. Dr Trout was not sure when the test was going to be undertaken – it could be in a few days or so, and that it probably would not be done that day. Dr Trout seemed a bit surprised by this request to see the testing. Ms Till said she knows of athletes who have stayed to witness the test. Ms Till then asked whether they could arrange a date and time to come back to the laboratory to see the test done. Dr Trout's reply was basically that no one really stays to see the test – it takes too long, and he could not really give them a specific time and date. At this stage, he was virtually walking out of the room so the discussion ended there. Ms Till said that she and Mr Vaassen they could not really protest. In the foyer there was some discussion about some boxes there related to the Olympics and then she and Mr Vaassen left.

Ms Till said that while they were in the conference room, there had been some discussion of pseudoephedrine. She asked how much it would take to get a reading of 50 micrograms per millilitre. Dr Trout said one tablet would give a reading of about 100 micrograms per millilitre. Ms Till said she was curious to know what would give you a reading of 50 micrograms per millilitre and whether that was a high reading or not. Ms Till said she had also been racing at the same meeting in Victoria and had shared a bed and a room with Mr Vaassen the night before the race. They both went to bed early and she could not recall very much of what happened. She was aware that he was wheezing and having "a bit of trouble breathing". She knew he suffered from asthma but had never seen him have an attack. When Mr Vaassen's A Sample tested positive, she was very surprised because Mr Vaassen had done numerous drug tests in the past and had always got a negative result. She queried him about what had happened and he said he did not know. However, at that time, she and Mr Vaassen were having marital problems and he was not telling her a great deal. She assumed that he must have taken something for his asthma. When she asked him specifically whether he had taken Sudafed, he said "I could have".
Ms Till said she and Mr Vaassen would probably have entered ASDTL's conference room shortly after 10:00 am but that the uncorking and breaking of the seal would not have occurred until about 10:15 or 10:20 am. Ms Till recalled asking Dr Trout about the level of pseudoephedrine detected in the analysis of the A Sample. He looked in a manilla folder that he had with him, found a sheet of paper and said the reading was 50 micrograms per millilitre. When Ms Till asked what the test results would be if a person took one tablet, Dr Trout said that this could give a reading of up to 100 micrograms per millilitre.
In cross examination Ms Till said she was aware that for a cyclist to take Sudafed tablets could lead to a positive test result. She denied that Mr Vaassen had ever told her directly that he had taken a Sudafed tablet, although he did not deny this. Ms Till said Mr Vaassen never discussed with her in any detail what had happened. At that time, they were "fighting". However, she said that Mr Vaassen rarely confides in anybody or tells them his true feelings.
Dr Graham Trout
Dr Trout had provided a statement dated 22 August 2001 (R1). He said he had graduated with a BSc in 1965 and with a Phd in 1972. He had been involved in testing for drugs in sport since 1988 and had been Deputy Director of ASDTL since 1996. Dr Trout acknowledged that ASDTL had lost its full International Olympic Committee accreditation for a period of about six months in about 1990 with the effect that with only partial accreditation they could not test B Samples or conduct tests in relation to international events.
Dr Trout said that there are two stages to the A Sample test. The first stage is a full screen test looking for stimulants, narcotics, steroids and diuretics. If the stage one screening identifies a particular substance as being above the permitted level, then the second stage involves taking another sample from the original sample bottle and subjecting that sample to a full analysis with respect to the particular substance identified as being above the permitted level. In this case, pseudoephedrine would have been identified at the first stage as being above the permitted level and, at the second stage, the concentration of pseudoephedrine would have been identified. The B Sample test also involves two stages: Stage 1 is to confirm the substance identified in the A Sample test, in this instance pseudoephedrine, and Stage 2 involves confirming the concentration of the substance. With respect to cycling, Dr Trout said the permitted level of pseudoephedrine was raised from 10 micrograms per millilitre to 25 micrograms per millilitre about 3 or 4 years ago.
Dr Trout described what he recalled had happened on 9 October 2000 when Ms Till and Mr Vaassen attended the laboratory. He said Sue McGinity (ASDTL's Sample Manager) had the sample ready in the conference room when he took Mr Vaassen and Ms Till there. Dr Trout said he would have told them that they were going to test for pseudoephedrine and that this was not a simple procedure: it was not something you could watch for a few minutes and see the result and go home. The result would not be available until the next day. Dr Trout said he also remembered being asked a question about the reading that one or flu tablets might give, and what the concentration of pseudoephedrine was found in Mr Vaassen's A Sample. Dr Trout said the effects of such tablets depends on the person: how long it is since they took the tablets, on the particular person's metabolism, on what they were doing at the time and after, and on what they drank. Dr Trout said he told Mr Vaassen and Ms Till them that the A Sample reading was approximately 50 and that one or two tablets could give a range of 20 to 100 micrograms per millilitre. He denied saying that one tablet would give a reading of 100 micrograms per millilitre.
Dr Trout said Sue McGinity opened the bottle by breaking its top and then, probably, she went to fetch Dr Fouracre. Dr Trout said he handed the sample to Dr Fouracre and told Mr Vaassen and Ms Till that Dr Fouracre would be undertaking the analysis and the results would be available to the Respondent next day. On the way out, Dr Trout made some comment to Mr Vaassen and Ms Till about the boxes in the foyer which were being repacked from the Olympics, and then they left. Dr Trout said he was not aware that Mr Till and Mr Vaassen wanted to stay while Mr Vaasen's sample was analysed and they expressed no desire to do so. He said he had never known an athlete to stay to watch the analysis to the end. Dr Trout said in his mind it was a perfectly normal B Sample opening and that:
It is quite unusual for any athlete to want to do more than look at the sample and make sure it is his sample. It's quite unusual for any athlete to come into the laboratory, they are quite welcome to, but very few take up the opportunity.
Dr Trout said it was never his belief that the test would not be commenced that day and he never said anything to indicate this. He did however, say that the test would be a lengthy procedure and that the final result would not be available until the next day. Dr Trout said ASDTL's contract with the Respondent requires them to provide the results the next day. The tests performed by Dr Fouracre would probably have taken three to four hours, may be a little bit longer. Then he would have put the samples on an instrument (a gas chromatograph mass spectrometer) for further analysis overnight. Next morning, Dr Fouracre would have come in and analysed the data produced on the instrument from which he would have generated a report that would have been sent to the Respondent some time that afternoon.
Dr Trout said the only time of which he is aware when the testing was observed was when the technical representatives for the Chinese swimmers who tested positive at the World Swimming Championships watched. Even then, the samples were left for analysis overnight and the Chinese representatives returned in the morning to observe the final part of the process. Dr Trout said ASDTL do have a contingency plan in place if an athlete asks to observe the analysis of the sample. Dr Trout was asked whether he would wish to discourage a person from watching the actual analysis in the lab. He said he would never discourage them, but at the same time, he would never encourage them. He would explain to them that:
It is not a simple process and also the fact that frankly if an untrained person were to watch what was happening they would almost certainly not understand what was happening.

Dr Trout acknowledged that ASDTL has been advised that their form acknowledging the B Sample verification (T13) should also include a tick box for athletes and their representatives to acknowledge that they have been informed of their right to observe the analysis of the B Sample, but have resolved to waive this right and not stay for that analysis. Dr Trout acknowledged that a slightly different form had been used during the Olympics which provided a space for comments to be made.
Dr Trout was asked about what he had said about Dr Fouracre. He said he had assured Ms Till that Dr Fouracre did not undertake the A Sample test. However, Dr Trout acknowledged that an analyst, such as Dr Fouracre, might well know the actual reading from the A Sample test and not merely that there was a positive test result to that particular substance, for example in the case of pseudoephedrine, that the test result showed a reading greater than the permitted level of 25 micrograms per millilitre.
Dr Christopher Fouracre
Dr Fouracre had provided a statement dated 8 November 2001 (R2). He said he graduated with a BSc (Hons Class I) from Sydney University in 1993 and with a Phd, also from Sydney University, in Organic Chemistry in 1997. He was employed by ASDTL from April 1999 to November 2000.
Dr Fouracre recalled Mr Vaassen and Ms Till being in the conference room on 9 October 2000 with Dr Trout and Sue McGinity. Dr Fouracre said Dr Trout did not say in his presence that the analysis of the B Sample would not happen that day. He was also not aware from anything said, that either Ms Till or Mr Vaassen wanted to be present through the analysis of the B Sample. He said his role was purely to receive the sample and sign the form (T14) acknowledging that the sample had been handed to him. Having received the sample, he went directly to the laboratory and commenced the analysis, which took about four hours.
Dr Fouracre said that he was in the conference room with the parties for about 10 minutes. During that time, Dr Trout explained the procedure involved in the testing to Ms Till and Mr Vaassen and how long it would take. Dr Fouracre said he could not recall whether Dr Trout asked them whether they would like to observe the testing, but he said there was never any intention to exclude them from doing so.
SUBMISSIONS
Respondent
Mr Marshall, for the Respondent, drew the Tribunal's attention to an appeal to the Federal Court from a Tribunal decision in a similar case: Re "VZZ" and Australian Sports Drug Agency [2001] AATA 776. One of the grounds of appeal in that case is that the Tribunal made an error of law by not considering whether all the requirements of Regulation 29(1) had been satisfied. Mr Marshall submitted that in the present case those requirements were met. In particular, (a) there was a request for a sample (Tp25 -26), (b) Mr Vaassen gave evidence of his having given a sample in response to this request, (c) the relevant test was positive (T8), (d) the relevant submission period had ended (T9, notification) (e) Ms Till made a submission (T17) which the Agency considered (T19, T21), (f) the procedures are the focus of the present proceedings, (g) the Agency considered other "relevant circumstances", as defined in Regulation 29(4), including the confidentiality of the information and the fact that Mr Vaassen's father gave the drug to his son as treatment for the asthma he was experiencing, and (h) the Agency concluded that the test result was valid in so far as the test was conducted properly and correctly, and that it must be entered on the Register.
With regard to Regulation 29(1)(f), Mr Marshall noted that Regulation 46(2) entitles the competitor to be present or represented at the testing of the B Sample. The Respondent submits that only "substantial compliance" is required with paragraph (f), pursuant to s 17A(2) and (3) of the Act and s 8 of the Orders. Mr Marshall noted that Mr Vaassen gave evidence that the normal procedure was followed in relation to the collection of the sample and that he had checked the code on the B Sample bottle before the seal had been broken.
Mr Marshall said whether Mr Vaassen and Ms Till were excluded from observing analysis of the B Sample is a question of fact for the Tribunal to determine. Dr Trout gave evidence that competitors and/or their representatives could stay to observe the analysis but that this was unusual. There were facilities for observation of the analysis and it would have been open to Mr Vaassen and Ms Till to stay. Mr Marshall said the Respondent's Annual Report for 2000-2001 (R3) indicates that 6194 drug tests were performed in that year, of which 25 were positive.
Mr Marshall said if Mr Vaassen's and Ms Till's evidence is accepted, then Dr Trout must be taken to have lied to the Tribunal. Yet, he has no motive to do so – he is a professional, gentle and calm person. Dr Trout acknowledged that he neither encouraged nor discouraged observation of the analysis. He agreed that the form of acknowledgment in relation to the B Sample Verification (T13) requires amendment.
Mr Marshall submitted that some of Ms Till's evidence was inaccurate or evasive. He pointed to inconsistencies between her evidence and Mr Vaassen's evidence, for example with regard to concern about Mr Vaassen's condition on the night before the race, and noted that Ms Till appeared "to move" in her recollection of whether she asked Mr Vaassen about whether he had taken Sudafed tablets. Mr Marshall contended that these inconsistencies undermined the credibility of Ms Till as a witness, and where Ms Till's evidence as to what occurred at ASDTL's premises on 9 October 2000 differed from Dr Trout's, Dr Trout's evidence should be preferred.
Mr Marshall noted that Mr Vaassen did not disclose until the second day of the hearing that he had actually taken 2 Sudafed tablets on the evening before the race. His father had confirmed this the next morning. Mr Vaassen was aware that Sudafed contained pseudoephedrine, yet he only declared having taken vitamins on the Drug Testing Form completed after he had given a urine sample (T5, p.26). Having received a positive test result, Mr Vaassen is now seeking to take advantage of a technicality in order to escape the consequences.
Applicant
Mr Leo Vaassen, representing his son, said that if anybody is guilty, it is him for having administered the medication to his son at a time he was suffering from asthma. Mr Vaassen said at the time it happened, the relationship between his son and Ms Till was like "warfare" which made the situation more difficult. With regard to the Drug Testing Form (T5, p26) completed by his son, Mr Vaassen noted that the form specifically states "Details of medication not obliged to be given".
Mr Vaassen said his son had a right to stay to watch both the unsealing of the B Sample bottle and the subsequent analysis. He noted that the Respondent's letter to his son dated 27 September 2000 (T10) stated that if his son wished to waive the analysis of the B Sample, he had to notify the Respondent in writing. Mr Vaassen said the B Sample Verification form signed by his son and Ms Till on 9 October 2000 (T13) was inadequate – it failed to allow the athlete or his or her representative to make a comment, for example as to observation of the analysis. Mr Vaassen noted that Dr Trout acknowledged that the International Olympic Committee had used a modified form permitting a space for comments, and that ASDTL have been advised to include a tick box on the form which athletes would use to indicate they did not wish to stay to observe the analysis.
Mr Vaassen said both his son and Ms Till had given evidence contradicting Dr Trout's evidence that they had not asked to stay to observe the analysis. On the contrary, Ms Till had specifically asked to do so. Dr Trout had commented in giving evidence that others had asked to stay, but it was clear from his evidence that he sought to discourage Mr Vaassen's son and Ms Till from doing so.
Mr Vaasen said it is incredible that the person performing the analysis on the B Sample is permitted to look at the results of the A Sample test before conducting the analysis. Dr Trout said in evidence that it was "quite normal for the analyst" to do this. Mr. Vaasen said the consequence of this is a lack of any objectivity on the part of the B Sample analyst. He argued that it is only necessary for the analyst to know what to look for and nothing else. Mr Vaassen contended that such poor procedure leaves the result open to manipulation, especially if the analysis is not observed. He noted that the specific results of the A Sample analysis have never been provided to his son.
Consideration of the Law and Findings
The Applicant has sought to establish, first, that ASDTL failed to follow the required procedure for the unsealing and analysis of Mr Vaassen's B Sample and, second, that the consequence of such a failure is the invalidation of the positive test result made in respect of Mr Vaassen. The Respondent contends that ASDTL followed the required procedure and, even if there was not strict compliance, there was, nevertheless "substantial compliance" which is sufficient for this part of the drug testing regime.
There are therefore two issues for the Tribunal: first a question of fact as to whether the required procedures were followed; and, second, a question of law as to whether the regulatory regime requires strict or substantial compliance with this part of the prescribed procedure.
Dealing first with the question of fact, the Tribunal notes Mr Marshall's concern, following the appeal in Re "VZZ" (supra), that the Tribunal should consider whether each of the requirements of Regulation 29(1) have been satisfied. For the sake of completeness, the Tribunal will address each of the paragraphs of Regulations 29(1):
           (a)      the Agency asks a competitor for a sample under regulation 17;There is no dispute that on 20 August 2000 a request was made of Mr Vaassen for a sample following his participation in the Australasian Road Championships 2000 (T5).
           (b)      the competitor gives the sample in response to the Agency's request;
Mr Vaassen gave evidence of his having given a sample in response to this request (T5).
           (c)       the result of the relevant test is positive;
The A sample test result showed the presence of pseudoephedrine at a concentration of greater than 25 micrograms per millilitre (T8). The B Sample test confirmed this result (T15).
           (d)      the relevant submission period has ended;
ASDTL notified Mr Vaassen of the result of the B Sample test by letter dated 2 November 2000 (T16). Mr Vaassen was invited to make a written submission to the Respondent within 7 days of receiving the letter. Mr Vaassen's solicitor, Ms Till, faxed a submission to the Respondent on 13 November 2000 (T17).
(e)the Agency has considered any submission that the competitor has given to the Agency under paragraph 45(2)(a) or 48(1)(a);

The Respondent discussed the Applicant's submission at a meeting on 15 November 2000 (T21). Paragraph 48(1)(a), which applies in the case of a positive test result for a B Sample, provides for 7 days within which the competitor may make a written submission.

(f)the agency is satisfied that the procedures for collecting and dealing with the sample mentioned in regulation 20 that the relevant orders require the Agency to comply with strictly have been strictly complied with;

This is the focus of the factual issue, to which the Tribunal will return below.
(g) the Agency has considered any other relevant circumstances;
With the definition of "relevant circumstances" (Regulation 29(4), cited above) in mind, the Tribunal finds that Mr Vaassen did not have approval for the use of the therapeutic drugs. The Respondent also considered whether there had been a breach of confidentiality in relation to the A Sample result and concluded there had not been(T25).

(h)the Agency has decided that the test result is valid and must be entered on the relevant register.

The Tribunal finds the Respondent decided that the test result was valid and entered the result on the Register of Notifiable Events.

With regard to paragraph (f), Regulation 46(2) entitles the competitor to be present or represented at the testing of the B Sample. The Tribunal finds that Mr Vaassen was notified of the date on which the B Sample bottle was to be unsealed and the contents tested. He and Ms Till attended ASDTL's premises on 9 October 2000 for the purpose of observing this. They were present at the unsealing of the bottlebut, after some conversation with Dr Trout they left. Mr Vaassen's and Ms Till's evidence is that Ms Till asked to stay to observe the analysis of the B Sample. Dr Trout's evidence is that they expressed no desire to stay for this purpose. In cross-examination, Dr Trout acknowledged that while he would never discourage a competitor from watching the actual analysis in the laboratory, at the same time he would never encourage them. Rather, he would explain the process and that untrained observers "would almost certainly not understand what was happening".
In the Tribunal's opinion, what occurred was a breakdown in communication between Dr Trout and Mr Vaassen and Ms Till. It is not clear what happened, but the evidence suggests Dr Trout may have assumed that they would not wish to observe the analysis in the laboratory. He may not have "listened", in the sense of hearing, what Mr Vaassen and Ms Till sought to communicate. Probably they, in turn, were not as clear as they might have been. The accounts given by all three in oral evidence relating the events of that morning are in the Tribunal's opinion perfectly credible, and the Tribunal is unable to be more definitive in its finding.
No conclusive finding can be made as to whether the required procedure was followed with regard to the observation of the testing of the B Sample without the Tribunal making a determination on the second issue, namely whether the regulatory regime required strict or substantial compliance with this part of the prescribed procedure. In the Tribunal's opinion, only substantial compliance is required. Pursuant to s 17A(2) of the Act, section 8 of the Orders provides that substantial compliance with the procedures is sufficient other than in relation to the procedures relating to the matters set out in s 17A(3).
Section 17A(3) procedures relate to the accredited laboratories, the analytical techniques and equipment used, ensuring that a sample is not tampered with, and ensuring that a sample is secured, contained and identified. With reference to Regulation 46(2), while it can be argued that the procedure related to the presence of a competitor at the unsealing of the B Sample bottle requires strict compliance because this is one of the safeguards for ensuring a sample is properly identified and not tampered with, the continuing presence of the competitor during the lengthy process of laboratory analysis does not, in the Tribunal's view, appear to be a procedure related to the matters in s 17A(3) requiring strict compliance.
The process of laboratory analysis is, the Tribunal assumes, having regard to the evidence of Dr Trout and Dr Fouracre, one of following a series of scientific analytical steps using appropriate equipment where relevant. The consequent data is then further analysed using a computer. As Dr Trout said, such a process is unlikely to be understood by the layperson, and, in the Tribunal's view, the presence of an observer is probably not an effective safeguard against tampering.
Thus, the Tribunal considers that substantial compliance with the relevant requirement in Regulation 46(2) for the competitor to be present or represented at the testing of the B Sample, is sufficient.
Returning to the question of fact in relation to Regulation 29(1)(f), the Tribunal is satisfied that the procedures for collecting and dealing with the B Sample that require strict compliance have been strictly complied with. This means that Regulation 29(1) was satisfied in Mr Vaassen's case, and pursuant to Regulation 29(2), the Agency was required to enter his name and the positive test result on the relevant register.
Thus, the Tribunal affirms the decision under review. The Tribunal notes that a modified ASDTL B Sample Verification Form (T35) might, in the future, solve communication problems of the kind that arose in this matter. Ultimately, those problems do not however, appear to have prejudiced the validity of the test result in the Applicant's case although they have clearly been of significant concern to him and his family.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed: .....................................................................................
  Associate
Date/s of Hearing  29 August, 2001, 11 December 2001,
  1 February 2002
Date of Decision  14 March 2002
Representative for the Applicant   Mr Leo Vaassen
Solicitor for the Respondent    Mr John Marshall, Barrister

[2002] AATA 167

14 March 2002

Key Legal Topics

Areas of Law

Administrative Law

Sport Law

Legal Concepts

Administrative Appeals Tribunal

Statutory Interpretation

Drug Testing

Pseudoephedrine

Unconscionable Conduct