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Legal Requirements to Conduct Blood Testing in Doping Control Oceania Region

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See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/340261035 Legal Requirements to Conduct Blood Testing in Doping Control Oceania Region Article · December 2001 CITATIONS READS 0 49 1 author: Catherine Ordway University of Canberra 32 PUBLICATIONS 29 CITATIONS SEE PROFILE Some of the authors of this publication are also working on these related projects: PhD candidature:“Protecting Sports Integrity: Sport corruption risk management strategies” View project All content following this page was uploaded by Catherine Ordway on 29 March 2020. The user has requested enhancement of the downloaded file. Legal Requirements to Conduct Blood Testing in Doping Control Oceania Region Author: Catherine Ordway1 Attention: Mr Olivier Niggli Dalejordet 10 Avenue Du Tribunal 3014 Drammen Fédéral 34 Norway 1005 Lausanne Tel : +47 21 02 90 87 Switzerland Mob : +47 41 90 03 06 Email : [email protected] Date: 31 December 2001 1 The author currently works as a WADA Consultant with the Drug Free Sports Consortium and is based at the Norwegian Olympic Committee and Confederation of Sports (NIF) in Oslo. Until August 2001, Catherine was employed as a Senior Associate with Browne & Co, who are the solicitors to the Australian Olympic Committee and several national sport federations, including Athletics Australia and the Australian Football League. Catherine acted on behalf of the AOC to prosecute more than 30 athletes in the National Sports Dispute Centre and Court of Arbitration for Sport whilst working with Browne & Co. Table of Contents INTRODUCTION ............................................................................................................. 4 PARAMETERS ............................................................................................................... 4 OCEANIA GENERAL ..................................................................................................... 5 Oceania Federations ............................................................................................................................... 6 BLOOD TESTING IN SPORT IN CONTEXT ................................................................... 7 GENERAL LEGAL FRAMEWORK ............................................................................... 10 Oceania Event - Example: Arafura Games ......................................................................................... 12 'Genuine' Consent ................................................................................................................................ 13 SUMMARY BY INDIVIDUAL NATION .......................................................................... 15 Territory of American Samoa (American Samoa) .............................................................................. 15 Commonwealth of Australia (Australia) ............................................................................................. 16 Cultural and Religious Groups in Australia ....................................................................................................... 16 National Approach: Development of AOC and ASC Anti-Doping Policies ........................................................ 18 ASDA and ASDTL ............................................................................................................................................... 19 Australia's Part in International Coordination ................................................................................................... 20 National Framework in Australia ....................................................................................................................... 21 Cook Islands .......................................................................................................................................... 23 Federated States of Micronesia (FSM) ................................................................................................ 25 Republic of the Fiji Islands (Fiji) .......................................................................................................... 26 Territory of Guam (Guam) .................................................................................................................... 28 Republic of Nauru (Nauru) ................................................................................................................... 30 New Zealand (NZ) .................................................................................................................................. 31 Republic of Palau (local short form 'Belau') ...................................................................................... 33 Independent State of Papua New Guinea (PNG) ............................................................................... 36 Independent State of Samoa (formerly Western Samoa) ................................................................. 39 Solomon Islands ................................................................................................................................... 41 Kingdom of Tonga (Tonga) .................................................................................................................. 42 Republic of Vanuatu (Vanuatu) ........................................................................................................... 44 CONCLUSION AND RECOMMENDATIONS ............................................................... 46 Education ............................................................................................................................................... 47 Authority ................................................................................................................................................ 48 4 INTRODUCTION [As] sport is now practiced on a worldwide basis, the fight against doping is an international problem and the solution to it must necessarily be international or the level playing field, which is fundamental to sport, cannot exist. There must be national building blocks in arriving at the solution, but, unless there is an international and coordinated approach to the question of doping in sport, however well-intentioned the disparate efforts may be, they will inevitably end in failure.2 In determining the 'legal requirements to conduct blood testing in doping control', it must be determined whether there are any local impediments to the universal requirement that an athlete participating in elite international competition must provide a blood sample or be sanctioned for a 'refusal'. The Council of Europe Working Party on Legal Issues noted that; "in some countries, in particular Austria, blood sampling for any purpose other than a duly prescribed medical reason or legal-alcohol measurement was against the law."3 Athletes in other jurisdictions have also apparently convinced the courts that the provision of blood samples infringes their human dignity.4 The legal framework in the Oceania countries then must be carefully analysed to ensure that the fight against anti-doping in this region can be legally supported.5 PARAMETERS In responding to the question posed, the following limitations have been set: - 1. the reference to 'Oceania' means the countries recognised by the International Olympic Committee (IOC) namely; American Samoa, Australia, Cook Islands, Federated States of Micronesia, Fiji, Guam, Nauru, New Zealand, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga and Vanuatu; 2 R W Pound, “Written Testimony before the US Senate Committee on Commerce, Science and Transportation”, 20 October, 1999, p1 (current Chairman of WADA's Foundation Board) 3 Council of Europe, Anti-Doping Convention, Monitoring Group, Working Party on Legal Issues, "Report of the Third Meeting: Strasbourg, 6-7 April, 1995", T-DO (95) 8, 2(d), p2 4 C Petibos, G Deleris and G Cazorla, "Perspectives in the Utilisation of Fourier-Transform Infrared Spectroscopy of Serum in Sports Medicine: Health Monitoring of Athletes and Prevention of Doping", Sports Med 2000 Jun; 29(6), p387-396 at p389. They also claim that; "Most athletes, because of the metabolic and psychological stresses caused, legitimately refuse blood testing." (p387) 5 Such an examination is also important to answer any criticism that the blood testing requirement is an imposition on individual cultures and societies. See S Boyes, "The International Olympic Committee, Transnational Doping Policy and Globalisation", in J O'Leary, Drugs and Doping in Sport: Socio-Legal Perspectives, Cavendish Publishing Co, London, 2001, p173 and 178. 5 2. the examination of the 'legal requirements' does not include the 'legal risks' associated with conducting blood testing in doping controls;6 3. requirements applying to all anti-doping procedures, such as; natural justice, privacy, impact of the criminal law (including self-incrimination) and confidentiality, will not be examined in detail;7 and 4. it is assumed that blood samples will only be used for anti-doping purposes.8 OCEANIA GENERAL The Oceania region has a number of peculiarities that make a definitive summary difficult. As pointed out by Xavier Sturbois in 1999; “Oceania’s ten million square kilometres are currently home to 11 NOCs [now 14]. The travel times (over 20 hours by plane from east to west and almost 13 hours from north to south) and the resulting problems represent a considerable difficulty for planning and conducting sports medicine courses. Significantly, sports medicine was practically
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