Almost Doc Martin · @MartinHardieUni
29th Oct 2014 from TwitLonger
Talking about ASADA and Privacy - still waiting for an answer
From: Martin Hardie <>
Date: Wednesday, 24 September 2014 10:33 am
To: "peter.dutton.>
Subject: Statements by Mr Ben McDevitt regarding the Register of Findings
Dear Minister
I am writing to you regarding recent comments by Ben McDevitt the CEO of ASADA in relation to Mr Steven Dank.
On August 24 this year, McDevitt gave an interview of the ABC where he stated that the Anti-Doping Rule Violation Panel had placed Mr Dank on the Register of Findings.
My concern is that in doing so Mr McDevitt has breached the privacy provisions of the ASADA Act and as such is liable to a penalty of two years jail.
Section 71 of the Act, Protection of NAD scheme personal information relevantly states:
(1) A person commits an offence if:
(a) the person is or was an entrusted person; and
(b) when the person was an entrusted person, the person obtained NAD scheme personal information; and
(c) the person discloses the information to someone else.
Penalty: Imprisonment for 2 years.
The only relevant exceptions to the offence are included in subsection (2):
(2) Each of the following is an exception to the prohibition in subsection (1):
(a) a disclosure for the purposes of this Act;
(b) a disclosure for the purposes of the NAD scheme;
(c) a disclosure with the consent of the individual to whom the NAD scheme personal information relates;
Mr Dank has informed me that he has not given his consent to the disclosure made by Mr McDevitt. The only possible relevant exception is that in clause 4.22 of the NAD Scheme.
The Full Federal Court considered the clause in the cases of XZTT No1 and No2. In XZTT No1 http://www.austlii.edu.au/au/cases/cth/FCAFC/2013/95.html they set out the clause and emphasised certain parts:
4.22 Making information publicly available
(1) For paragraph 13(1)(m) of the Act, [the CEO] is authorised to publish information on and related to the Register only if:
(a) [The CEO]:
(i) considers the publication to be in the public interest; or
(ii) has received the consent to the publication by the athlete or support person to whom the information relates; and
(b) any of the following apply:
(i) a decision has been handed down for a hearing process conducted in accordance with Article 8 of the [WADA Code], in relation to the finding concerning the information, by a sporting tribunal;
(ii) the athlete or support person has waived his or her right to a hearing;
(iii) the athlete or support person has refused to recognise the jurisdiction of a sporting tribunal to conduct a hearing process in relation to the finding concerning the information; or
(iv) no sporting tribunal has jurisdiction to conduct a hearing process in relation to the finding concerning the information; and
(c) if the athlete or support person applied to have the decision to make the entry reviewed by the [AAT]:
(i) for information for which the [AAT] has granted an order under subsection 35(2) of the Administrative Appeals Tribunal Act 1975 ‹ the review process has been finally determined; or
(ii) the [AAT] has not granted an order under subsection 35(2) of the Administrative Appeals Tribunal Act 1975; or
(iii) the athlete or support person has not applied to the [AAT] for a review of the decision within the applicable timeframe.
(2) For subclause (1), [the CEO] may determine:
(a) the way in which the information is to be made publicly available; and
(b) the times at which the information is to be made publicly available.
In that case the Full Federal Court decided that the ADRVP did not conduct a hearing hence the fact that Mr Dank has not made submissions to the ADRVP does not constitute a waiver of any hearing.
In XZTT No2 http://www.austlii.edu.au/au/cases/cth/FCAFC/2013/135.html the Full Federal Court said:
[9] As noted in ADRVP No 1, cl 4.22 of the NAD Scheme sets out the situations in which an entry on the Register might be published. Publication of any NAD Scheme personal information including the Athlete¹s name is only possible when one of the criteria in cl 4.22(1)(b) of the NAD Scheme has been satisfied. One of those criteria is the handing down of a decision following a hearing process conducted in accordance with Art 8 of the WADA Code in relation to the finding concerning information by a sporting tribunal or, alternatively, where an athlete has waived his or her right to a hearing.
In relation to the law as set out by the Full Federal Court it is clear that in respect of Mr Dank:
1. there has been no decision has been handed down for a hearing process conducted in accordance with Article 8 of the [WADA Code], in relation to the finding concerning the information, by a sporting tribunal;
2. There has been no AFL Tribunal Hearing in respect of the one show cause notice Dank has received (which relates to substances that they assert were supplied by Dank to EFC and Gold Coast Suns support personnel)
3. He has not waived any AFL (or for that matter NRL) hearing, as he not received any infraction notice from the AFL.
4. He has not refused to recognise the AFL¹s (or for that matter the NRL¹s) jurisdiction as he not received any infraction notice from the AFL.
Furthermore, ASADA have consistently said Dank is a support person within the meaning of the WADA Code therefore the AFL and the NRL have jurisdiction to conduct a hearing.
Given the decisions of the Full Federal Court this is not an area of law that appears to be in any doubt.
In these circumstances my question to you is whether or not the Commonwealth has or will investigate this apparent breach of the ASADA Act¹s privacy provisions by Mr McDevitt?
If there has been no investigation or there is no intention to instigate such an investigation would you please provide me with the Commonwealth¹s reasons for not doing so?
I look forward to your urgent and considered reply.
Yours faithfully
Martin Hardie