ALA expresses concern over new anti-doping body powers

11th Feb 2013

The Australian Lawyers Alliance today expressed concern over the federal government’s plan to remove privilege against self-incrimination and to compel witnesses in Australian Sports Anti-Doping Authority (ASADA) investigations.

The ALA said this dramatic increase in ASADA’s powers was both unfair to persons being investigated, and their associates, and clearly in breach of Australia’s obligations under the International Covenant on Civil and Political Rights (ICCPR).

Last week, Sports Minister, Kate Lundy, introduced an amendment to the ASADA Act that provides;

A person is not excused from:
(a) answering a question; or
(b) giving information; or
(c) producing a document or thing;

as required by a disclosure notice given to the person on the ground that the answer, information, document or thing might tend to incriminate the person or expose the person to a penalty.

While the answers or evidence given cannot be used in criminal proceedings, failure to comply with a request for evidence will, under the amendment, result in a civil penalty of $1020.

ALA Criminal Law Spokesman, Greg Barns, said the privilege against self-incrimination was a bedrock of the criminal justice system and it ensured that prosecutors and investigators could not use evidence obtained from individuals under duress or through coercion.

“In our criminal justice system it is the investigating agency, an arm of the state, which has to prove its case against an individual and that’s why the right to remain silent is so important. These criminal justice principles apply equally to bodies like ASADA,” he said.

“There is an inherent unfairness and imbalance of power at play when a person is forced to appear before a body like ASADA. As former US Chief Justice, Warren Burger, said in 1966; ‘It is obvious that such an environment of interrogation is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity’,” Mr Barns quoted.

It is because of this that individuals must have the right to remain silent and not disclose evidence that might incriminate them.

ASADA can make or break sporting careers and the consequences from adverse findings for sports people can be devastating both personally and professionally. Such findings should not be allowed to be made by forcing individuals to give up fundamental human rights.

The ALA is also disturbed at the federal government’s flouting of the ICCPR. Article 14 (3) of the ICCPR provides for the right against self-incrimination.

An Australian government is once again turning its back on the human rights commitments to which this nation is a signatory, Mr Barns said.

"It looks like doing so again for political gain, supported, it seems, by the Opposition.”

Tags: Human rights Access to justice