Nikki Dryden, a New York attorney and Canadian Olympic swimmer, writes why ASADA’s removal of Australian Athletes’ right to silence is arguably unlawful: A push to expand ASADA's legislative powers to investigate doping resulted in the 2013 ASADA Amendment Bill being drawn up. The draft bill initially included a clause removing athletes’ right to silence and privilege against self-incrimination. This proved highly controversial. During debate, there were Australian legal organizations voicing concerns over the issue, including the Institute for Public Affairs, which noted: “The privilege against self-incrimination is a basic legal right.” “There is no justification for removing it in these circumstances... the power to compel athletes to answer questions and produce documents that may assist ASADA in its investigations... are exercised without the need for warrants to be issued by the courts.” As a result, the Australian Parliament passed the Bill without the clause, reaffirming the right to silence for Australia’s athletes. CIRCUMVENTION BY CONTRACTUAL WAIVER: THE NEW ASADA TEMPLATE FOR NATIONAL SPORTS ORGANISATIONS By January 1, 2015, most of Australia's national sporting organizations (NSOs) had updated their Anti-Doping Policies (ADPs) using a template provided by ASADA that removed these rights, this time by contract. ASADA’s template could remove these rights, notwithstanding the lack of legislative authority, by implementing a “contractual arrangement between the sport and members of the sport.” The AOC also updated a By-Law in its Anti-Doping Code obliging Australian athletes to cooperate and assist ASADA even if to do so would incriminate them, or they risked losing their spot on the Australian Olympic team. Several sports, including Australian Football and Rowing, that had not previously followed the ASADA ADP template on this issue, now had to remove these common rights rather than risk disqualification from the Olympic Games. THE RIGHT TO SILENCE AND PRIVILEGE AGAINST SELF-INCRIMINATION An individual’s right to silence and privilege against self-incrimination are protected in law at a number of levels. Under customary international law, the International Covenant on Civil and Political Rights (ICCPR) affirmatively protects an individual’s rights against self incrimination, stating that no person shall “be compelled to testify against himself or to confess guilt.” In compliance with international law, the WADA Code (2015) at no point forces athletes to cooperate, nor does it force athletes to give up their right to silence or the privilege against self-incrimination. CAS PRECEDENT REGARDING SUBSTANTIVE CHANGES TO THE CODE There is precedent from CAS on the rule against national organisations making substantive changes to the Code. In United States Olympic Committee (USOC) v IOC, the panel outlined the purpose of Article 23.22: “to ensure that Signatories do not introduce provisions that negate, contradict, or otherwise change the WADA Code articles that are mandatory...” “The panel finds that “through unilateral action by the IOC...” the rule in question changed the effect of the WADA Code anti-doping regulations.” CAS ruled against the British Olympic Association (BOA) on a similar issue. SUBVERSION OF THE RULE OF LAW In addition to violating the WADA Code, ASADA and the AOC have also arguably subverted the rule of law by abrogating athletes’ rights to silence and privilege against self incrimination. If key rights are to be abrogated, it must be by way of due legal process – namely legislative backing - rather than by backdoor contractual waiver backed by coercive punishment. THE ATHLETE’S VIEW Australia's athletes have not been given a choice about giving up their common law rights, and in some cases, are unknowingly contracting them away. They are required to sign the ADPs for their sport, and as Australian attorney Barry Crocker argued, the preambles to the ADPs are “simply false and misleading.” The Australian Athletes' Alliance (AAA), a union representing the top 8 professional (and notably non-Olympic) sports, said that: “while athletes are committed to clean sport, they believe in retaining fundamental rights others in society take for granted in the purported aim of achieving that objective.” “The right against self incrimination is an important fundamental right that must be protected for athletes, which Parliament has made clear.” What started as an attempt to fight doping in Australian sport has risen to the level of arguably violating not just common law, but also the WADA Code and international sports law, and undermining the rights of the athletes they are trying to protect. Please support this petition which requests a Senate Inquiry to sort this mess out. Kindly read, consider, and sign this petition. If you have already signed, please ‘share’ and then ‘like’ this petition using any of the links below and/or your own social media platform. Thank you sincerely for your support.