38.4 The Australian Sports Commission (ASC) administers and funds sport in Australia on behalf of the Federal Government. The ASC supports a wide range of programs to develop elite sport, as well as increase community participation in sport. The ASC includes two units with responsibility for delivering these outcomes. The Australian Institute of Sport (AIS) is responsible for training and developing elite athletes and teams, and the Sport Development Group is responsible for developing the community base of Australian sport through the Active Australia initiative. The ultimate aim of this initiative is to increase the number of Australians involved in sport and physical activity in the long term.
38.5 The AIS offers scholarships annually to about 700 athletes in 35 separate programs covering 26 sports. Scholarship benefits may include:
- access to world class facilities;
- high performance coaching;
- personal training and competition equipment;
- sports medicine and sport science services;
- travel, accommodation and living allowances for events chosen by the Institute;
- full board at the Institute’s residences, or living out allowances, as appropriate;
- reimbursement of education expenses to limits that depend on the type of study undertaken; and
- assistance through the national Athlete Career and Education program.
38.6 In relation to track and field athletics, the AIS website states that:
Performance is an important criterion for assessing athletes, with clear performance goals designed to prepare the athlete for the highest level of international competition. Results at major national and international competitions are critical to athlete selection …
The AIS Track and Field program provides scholarships to both senior and develop-ing athletes with the potential to reach the top eight in the world in their event.
38.7 The scholarship program entails a significant investment of resources for those who meet the assessment criteria, namely, those who demonstrate proven ability as well as the potential to perform at a very high level. Genetic information may be relevant to the selection process and to the assessment of the future potential of an athlete.
38.8 The National Talent Identification and Development program, or Talent Search, is a program developed by the AIS, in cooperation with state and territory institutes and academies of sport, and national and state sporting organisations. The program is designed to help identify talented athletes between the ages of 11 and 20 and to prepare them for participation in local, national and international competition. The program utilises information across all disciplines of the sports sciences to identify young athletes with characteristics associated with elite performance. The testing currently involves measuring physiological attributes such as height, body mass, strength, speed, flexibility and aerobic capacity, with additional specific testing in relation to particular sports.
38.9 Other organisations in Australia are also involved in selecting elite athletes for national teams and competitions, for example, the Australian Olympic Committee, the National Australian Football League, the Australian Cricket Board and Netball Australia.
38.10 Talent Search, AIS scholarships and other elite athlete selection processes involve decisions with some predictive element in relation to the potential performance of particular individuals. There is persuasive evidence that genes contribute to athletic performance. AIS Assistant Director, Peter Fricker, has commented that Australia will fall behind as a sporting nation if it fails to embrace genetic screening of athletes, and that this is likely to become as common as measuring height and weight. As genetic testing technology and understanding progress, it is likely that the selection of elite athletes will include some genetic tests. In the future, an athlete’s genetic profile may be one of a range of factors considered in assessing whether that athlete gains access to the resources provided by institutions like the AIS, or is accepted to participate in elite or professional competitions.
38.11 Researchers from the AIS and the Department of Molecular and Clinical Genetics at Royal Prince Alfred Hospital, Sydney, are currently working to identify genes that may be helpful in predicting natural sporting ability. The research is aimed at identifying which genes are involved in elite athletic performance, what contribution those genes make, and how that contribution compares to that made by environmental factors such as training. In consultations with the Inquiry, Professor Ron Trent, Chair of the Department of Molecular and Clinical Genetics, indicated that the contribution of genes might range from 5% to 90%, although he was of the view that it is likely to be toward the lower end of the range.
38.12 Participation in elite sport requires a range of physical and physiological attributes, as well as psychological and decision making abilities. The AIS notes on its website that ‘the key to undertaking successful talent identification is trying to determine how much of the performance you can measure’. Physical and physiological attributes are generally easier to measure than other elements such as psychological and decision making abilities. Research into performance genes is currently aimed at identifying genes associated with physical and physiological attributes, such as supernormal cardiovascular function.
38.13 Because different sports require a different mix of attributes, the usefulness of genetic information as a predictor of likely performance will vary between sports. Genetic information will be more useful in predicting potential talent in sports such as rowing and athletics, which rely more on physical and physiological characteristics. It will be less useful in relation to team sports, which rely to a significant extent on skills like being able to ‘read the play’ and interact with team members. Genetic information may also be less useful in sports such as archery and table tennis, which rely more on skill and decision making ability and less on physical and physiological attributes.
Submissions and consultations
38.14 As noted above, the Inquiry received few submissions dealing with the use of genetic information in sport. One submission, from an applied ethicist and teaching fellow at the University of Abertay Dundee in the United Kingdom, raised a number of concerns in relation to the use of genetic information to identify potentially elite athletes. These concerns included:
- the ethics of using limited medical resources for non therapeutic research, such as identifying performance genes in athletes;
- the potential to limit the life choices of individuals identified as potentially elite athletes at a very young age and the potential to discourage others from even trying; and
- the potential for discrimination by sporting organisations against athletes on the basis of their genetic information.
38.15 In his submission, Mr Miah expressed the view that these issues required further consideration with a view to developing ethical and legal policy on the use of genetic information in sport. While the first point listed is a resource allocation issue for government, and the second point is a policy issue for sporting bodies, the third point falls within the Terms of Reference of this Inquiry and is considered in detail below.
38.16 In consultation, Professor Ron Trent indicated that the joint research project being conducted by the AIS and Department of Molecular and Clinical Genetics, discussed above, had received approval from three human research ethics committees at the AIS, Royal Prince Alfred Hospital and the University of Sydney. He noted that the project had a strong therapeutic element because the examination of heart function in AIS rowers is likely to assist with the treatment of heart disease.
38.17 Professor Trent noted that it would be many years before the project produced results that might be of practical use to the AIS. He also noted that no single gene, or combination of genes, would ensure a gold medal or the development of an elite athlete. He was of the view that coaches were unlikely to risk their careers by relying on genetic profiles alone to select athletes. While genetic makeup may make some contribution to sports performance, an individual’s application, response to training and desire to win were also key factors necessary for success. As the AIS notes on its website:
In the future, blood testing will never replace traditional methods of talent identification, but might provide an extra piece of the predictive jigsaw.
38.18 Professor Trent also noted that genetic information might be used in the future to develop individualised training programs for elite athletes.
Existing legal framework
38.19 Access to programs run by the AIS and other sporting organisations in Australia is regulated by anti-discrimination legislation, including the Disability Discrimination Act 1992 (Cth) (DDA). Three provisions of the DDA are potentially relevant here. The first is s 28 which provides:
(1) It is unlawful for a person to discriminate against another person on the ground of the other person’s disability or a disability of any of the other person’s associates by excluding that other person from a sporting activity.
(2) In subsection (1), a reference to a sporting activity includes a reference to an administrative or coaching activity in relation to any sport.
(3) Subsection (1) does not render unlawful discrimination against a person:
- if the person is not reasonably capable of performing the actions reasonably required in relation to the sporting activity; or
- if the persons who participate or are to participate in the sporting activities are selected by a method which is reasonable on the basis of their skills and abilities relevant to the sporting activity and relative to each other; or
- if a sporting activity is conducted only for persons who have a particular disability and the first-mentioned person does not have that disability.
38.20 This provision recognises that participation in sporting activity is frequently graded on the basis of skill and ability. Where such discrimination is reasonable, it is not unlawful. Selection of athletes for participation in sporting activities, including the Talent Search program and the AIS scholarship program, is unlikely to contravene this provision so long as the method used to select athletes is reasonable. If the AIS, or other sporting organisation, were to introduce genetic testing as part of the selection process it would be important to ensure that the testing was a reasonable method of selection. Organisations would have to consider issues such as whether the test results were sufficiently reliable and relevant to the skills and abilities required. If not, it would be open to an athlete who was ‘reasonably capable of performing the actions reasonably required in relation to the sporting activity’ to challenge the decision of the selectors under s 28.
38.21 Section 29 of the DDA is also relevant to AIS programs and provides:
It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person’s disability, or a disability of any of the other person’s associates in the performance of that function, the exercise of that power or the fulfilment of that responsibility.
38.22 Under the Australian Sports Commission Act 1989 (Cth), the ASC is given a range of functions including ‘to develop and implement programs for the recognition and development of persons who excel, or who have the potential to excel, in sport’. It is also given the power to ‘provide scholarships or like benefits’. In fulfilling these functions the ASC and the AIS regularly make decisions that draw a distinction, or discriminate, between individuals on the basis of their skills and abilities, including on the basis of their physical and physiological attributes. Where such discrimination is reasonable for the purpose of implementing a Commonwealth program for the development of elite or potentially elite athletes, it is unlikely to amount to unlawful discrimination under the DDA.
38.23 Once again, however, if the AIS were to use genetic information to select athletes, it would be necessary to ensure that the information was reasonably reliable and relevant. If not, it would be possible to argue that the information was being used to discriminate unlawfully against individuals rather than to genuinely administer a Commonwealth program aimed at identifying and developing elite athletes.
38.24 Finally ss 15–21 of the DDA, which prohibit discrimination in employment, are also relevant where the sporting position is a professional one. These provisions are discussed in detail in Part H of this Report.
38.25 The potential collection of genetic information from athletes also gives rise to privacy considerations. As noted in Chapter 7, privacy protection for personal health information is not comprehensive in Australia. While the ASC, the AIS and many private sector sports organisations are covered by the Privacy Act 1988 (Cth) (Privacy Act), the Act does not extend to state and local government organisations except in the Australian Capital Territory. Privacy legislation in other States and Territories is either absent, incomplete or non-uniform. It is also likely that a range of sports organisations will fall within the small business exemption in the Privacy Act. Although small business sports organisations may hold health information about athletes, they are unlikely to fall within the coverage of the Act as ‘health service providers’ or ‘traders in personal information’. In addition, in relation to professional athletes, genetic information will be held in ‘employee records’, which also fall outside the protection of the Privacy Act.
38.26 Genetic information is not currently widely used in sport. However, it is likely that financial and other pressures, which operate at the elite end of the sporting spectrum, will mean that genetic testing and genetic information will come to play a role in the early identification and selection of athletes for participation in elite competition, training and scholarship programs. It is less likely that this will become an issue in relation to non-elite sports where there is less competition for places and the financial and other incentives are not as great.
38.27 The issues raised by the use of genetic information to select or identify potentially elite athletes underline the importance of the recommendations made in Chapters 7–9 and Part H of this Report. Many of the recommended changes in these chapters will help to ensure that, in the future, athletes’ genetic information is dealt with in an appropriate manner.
38.28 The Inquiry is of the view that the ASC should keep this issue under review. It would be valuable for the ASC, in consultation with the Human Genetics Commission of Australia (HGCA), the Human Rights and Equal Opportunity Commission (HREOC), the Office of the Federal Privacy Commissioner (OFPC) and other stakeholders such as Sports Medicine Australia and the Australia and New Zealand Sports Law Association, to develop policies and guidelines on the use of genetic testing and genetic information to identify or select elite athletes, for the guidance of athletes and sporting bodies.
Recommendation 38–1 The Australian Sports Commission (ASC) should monitor the use of genetic testing and genetic information for identifying or selecting athletes with a view to developing policies and guidelines for sports organisations and athletes. The policies and guidelines should be developed in consultation with the Human Genetics Commission of Australia (HGCA), the Human Rights and Equal Opportunity Commission (HREOC), the Office of the Federal Privacy Commissioner (OFPC), and other stakeholders.
 Australian Sports Commission, Australian Sports Commission Website, Australian Sports Commission, <www.ausport.gov.au/>, 13 January 2003.
 Australian Institute of Sport, Talent Search: About the National Talent Search Program, Australian Institute of Sport, <www.ais.org.au/talent/>, 20 February 2003, emphasis added.
 T Rankinen and others, ‘The human gene map for performance and health-related fitness phenotypes: the 2001 update’ (2002) 34(8) Medicine & Science in Sports & Exercise 1219.
 Australian Associated Press, ‘Genetic Profiling of Athletes Predicted’, The Age (Melbourne), 1 February 2003, 7.
 R Trent, Consultation, Sydney, 1 November 2002.
 Australian Institute of Sport, Talent Search: About the National Talent Search Program, Australian Institute of Sport, <www.ais.org.au/talent/>, 20 February 2003.
 A Miah, Submission G139, 15 March 2002.
 Australian Institute of Sport, Australian Institute of Sport Website, <www.ais.org.au/>, 13 January 2003.
 This discussion proceeds on the basis that the recommendations made by this Inquiry in Ch 9 are implemented. As discussed in that chapter, state and territory legislation may also be relevant. See, for example, Anti-Discrimination Act 1977 (NSW) s 49R; Equal Opportunity Act 1995 (Vic) ss 65–66; Anti-Discrimination Act 1991 (Qld) s 111; Equal Opportunity Act 1984 (SA) s 81; Equal Opportunity Act 1984 (WA) s 66N; Anti-Discrimination Act 1998 (Tas) s 43; Anti-Discrimination Act 1992 (NT) s 56 and Discrimination Act 1991 (ACT) s 57.
 Australian Sports Commission Act 1989 (Cth) s 7(1)(d).
 Ibid s 8(1)(d).