Bazzi v Combat Sports Authority of New South Wales - [2024] NSWCATAD 109 - NSWCATAD 2024 case summary — Zoe

NSWNSWCATAD

Bazzi v Combat Sports Authority of New South Wales

[2024] NSWCATAD 109

NCAT Administrative and Equal Opportunity|2024-04-12

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2024-04-12

Catchwords

Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387
Demirel v Combat Sports Authority of New South Wales and Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 47

Source

Original judgment source is linked above.

Catchwords

Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387Demirel v Combat Sports Authority of New South Wales and Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 47Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127Grenfell v Director-General, Department of Finance and Services [2013] NSWADT 57McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 35Murray v Combat Sports Authority of New South Wales and Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 18Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10Re T and Department of Youth and Community Services (1980) 1 NSWLR 392Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184Sterjovski v Director-General, Department of Transport [2002] NSWADT 10

Judgment (15 paragraphs)

[1]

[3]

Applicable legislation

The CS Act regulates the conduct of professional and amateur combat sports in New South Wales. Its objects are set out in s 3 as follows: (a) to promote the health and safety of combat sport contestants, (b) to promote the integrity of combat sport contests, (c) to regulate combat sport contests on a harm minimization basis, (d) to promote the development of the combat sport industry.
A "combat sport" is any sport, martial art or activity (other than one excluded by the regulations) in which the primary object of each contestant in a contest, display or exhibition of that sport, art or activity is to strike, kick, hit, grapple with, throw or punch one or more of the contestants: s 4(1). Section 9 prohibits a person from engaging in a combat sport contest as a combatant unless registered as a combatant of the registration class applicable to that contest.
Section 10(1) provides that the authority may determine the registration classes of competence for the purposes of registration as a combatant under the Act. The authority is also required, however, to determine separate registration classes for combatants for combat sport contests, for different styles of combat sport, and professional combat sport contests and amateur sport contests for each style: s 10(3).
Section 11 permits a person to make an application to be registered as a "combatant" of a specified registration class. "Combatant" is defined in s 4(1) to mean a person who engages or proposes to engage as a contestant in a combat sports contest. The determination of such applications is covered by s 13. Section 13(1) stipulates that the authority may register an applicant if satisfied of the five criteria set out in (a) to (e). The second criterion is s 13(1)(b), "that the applicant is a fit and proper person to be registered as a combatant of that class".
This section also provides that the authority must refuse to register an applicant as a combatant in a specified registration class if it is of the opinion that it is not in the interests of the health or safety of the person to grant the registration or in any other circumstances prescribed by the regulations for the purposes of that section (s 13(2)(c), (d)).
Section 23(1) of the act provides that an individual may apply to CSA to be registered as an industry participant, as that term is defined in s 6(1). The authority must, however, refuse to register an applicant as an industry participant of a specified registration class (s 25(2)(a)) if it is not satisfied of the matters specified in subsection (1), which include "(b) that the applicant is a fit and proper person to be registered as an industry participant or promoter of that class". Consequently, the combined effect of ss 25(1) and 25(2) is that CSA, and on review this tribunal, must be positively satisfied that an applicant is a fit and proper person to be registered as an industry participant of that class before the power to register an industry participant can be exercised.
The issues in this review application are thus: 1. whether the applicant is a fit and proper person to be registered as an industry participant of the relevant classes, 2. whether the discretionary power in s 25(3) should be exercised.

[4]

The evidence

The respondents did not adduce oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), and on cross-examination of the applicant.
The applicant had not lodged a witness statement, although directed to do so by Ransome SM and having been granted an extension of time to comply by Simon PM on 12 March 2024. This made it difficult for the respondents to prepare a proper cross-examination of the applicant, but nevertheless they consented to his giving oral evidence at the hearing.
The applicant's evidence in chief consisted largely of reading his written submissions dated 25 March 2024 (exhibit A1) in which he noted that within the CSA Fit and Proper Persons Policy the "role risk level" applicable to the type of certification the applicant seeks was in the "low" risk level. The standard check for his categories of application was limited to a declaration made on application, but it is implied that a National Criminal History Record Check and its contained information would be considered enough to make a fitness and propriety determination.
The policy also outlines relevant offences which will be taken into account, listing "illegal drug supply/distribution", but takes measures to provide separation from "those found with small amounts for personal use". The policy considers offences of "serious violence" to include assaults causing injuries that are grave, life-threatening or cause the loss of body parts.
The applicant's criminal history did not align with any seriously unacceptable offences as listed by the authority. His single conviction related to violence could not be categorized as "serious violence" in light of the sentence of a $600 fine in 2016, 8 years before the current application. The fact sheet showed that the applicant was in the process of de-escalating an altercation with security guards at a licensed venue. The applicant openly admitted pushing a security guard. No other violent charges or events are held against him.
The respondent's evidence to support OMCG claims was insufficient and mainly depended on his openly stated relationship to Mr Mahmoud Hawi, a relative of his father. Mr Hawi died in 2018. Mr Bazzi denied any criminal involvement with Mr Hawi. Ms Comina's open affidavit (exhibit R1, p 13) disclosed that on 25 April 2016 the applicant had been performing the duties of a responsible designated driver and cooperated with RBT police. At the time of the interaction with police, Mr Hawi was no longer a member of an OMCG. The respondent had provided video evidence of interactions with police on 11 April 2020, in which the applicant was questioned about his relationship with Mr Hawi. He was open and honest regarding his relationship to Mr Hawi as a deceased relative but confirmed to the police clearly that he was not affiliated with any motorcycle clubs, active members, or specifically the Comancheros. Cst Middleby had completely falsified a statement that the applicant had told police that "he knows all the boys" in reference to OMCGs, when in fact during the interaction that claim was denied repeatedly.
The applicant has been subject to a documented searches multiple times with no evidence of any OMCG related materials. "There is no evidence to provide that shows beyond reasonable doubt that the applicant is in any way involved within OMCG", he said. The police had also made multiple enquiries with the applicant between May 2020 and October 2022. His mother spoke to police twice about his current lifestyle, and he once spoke to police in relation to the above in May 2022 when Cst. Ricketts determined that "PN is not an active member. NFPA" (exhibit R2, p 14).
The FPO and WPO served on him in August 2023 (exhibit R1, pp 114 - 118) were based on conviction of crimes involving violence. His single conviction related to violence could not be treated as "serious violence" in light of the sentence handed down, a $600 fine in 2016, 8 years previously. As the fact sheet for the assault indicated (id., 106 - 110), he was de-escalating an altercation with security guards at a licensed venue. He openly admits pushing a security guard. He was 22 years old at the time and now understands how important it is to choose one's friends wisely, and takes full responsibility for his inappropriate actions. He showed remorse and since has never been involved in any altercations nor charged or convicted of any violence -related crimes. Importantly, he has never been charged with any offence relating to firearms that would warrant the issuance of an FPO.
While the CSA briefing paper states that "it appears that the Applicant has taken part in the supply of illicit substances over an extended period" (id., 19), that matter has been brought before a court on multiple occasions with no progress to conviction. The police have pursued that conviction and withdrawn their charges several times, with no means to support this accusation.
His most recent offence of possession was on 4 April 2022 when he was in possession of a strip of suboxone (buprenorphine/naloxone), which is a pharmaceutical drug generally prescribed to treat opioid dependence. During the sentencing for the above case in July 2023, the presiding magistrate treated the matter leniently and twice spoke of the minor nature of the offence, commending the applicant on the steps he had taken towards rehabilitation. Her Honour further instructed him to "keep giving back to the community including through your training and supporting vulnerable youth because vulnerable youth need to see someone like you as a role model, and you are the role model and you can continue to do that role moving forward". This interaction with her Honour occurred 6 months into the applicant's voluntary treatment for addiction.
The applicant has a history of depression and childhood trauma and sought treatment for addiction in January 2023 - see the referral letter from Dr Patricia Giles (exhibit R4, p 103). Ms Ackerman, a nurse with the Sutherland Drug and Alcohol Clinic (exhibit R4, p 99) attested to his punctuality, healthy demeanour and success with treatment, acknowledging his positive involvement in martial arts (id., 107).
He has provided references from three individuals who can further affirm his standing as a fit and proper person. All three are highly esteemed members of the combat sports industry.
The respondents had overstepped their bounds in the matter. The image portrayed of the applicant from that perspective and the information included in the analysis should have been separated by an impartial standard to allow for unbiased decision. The applicant has had a positive trajectory that had been documented by multiple sources including positive character references from a magistrate, highly respected members of the combat sports industry and New South Wales public health professionals. They are a testament to the applicant's hard work and dedication to become a positive role model in society. He has also provided evidence of rehabilitation through the appropriate means, which are seen to be successful through clinical records and reports. That evidence mitigates the risk factors in question and any danger to the integrity of CSA and its reputation within the community. The applicant has shown a high level of understanding of his responsibility to uphold the respectability of CSA and combat sports in public.
He would be more than happy to adhere to any special conditions imposed to be given a chance to prove himself, such as being granted limited registration within one class instead of the multiple classes originally applied for. He also suggests, instead of the standard 3-year renewal period that he be subject to yearly review.
In oral evidence the applicant said there had been a witchhunt conducted against him and that information reports were liable to error. It was unfair to him to have confidentiality for evidence, as police information reports can carry considerable weight. The International Convention on Civil and Political Rights requires an open trial, but confidential material would not withstand a criminal trial and is not subject to the rules of natural justice.
Asked by Ms Meikle in cross-examination on behalf of the respondents whether he had any other criminal conduct on his record in addition to his criminal history, he said he had one or two driving offences but had never associated with OMCG in the past. There were also some things on his record that were spent, and a DUI. His only connexion with OMCG was his relationship with a distant family member. He had been aged nine when Mr Hawi was involved with an OMCG. He denied the claim in the Keverkis statement about the Leagues Club assault and affray (exhibit R2, p 174) that he had admitted membership of the Comancheros.
At the conclusion of the open hearing, a confidential hearing was conducted, the tenor of which is outlined below. Wherever possible, the applicant was supplied with redacted copies of any information reports.

[5]

Approach

Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the authority's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act 2013 (CAT Act) (s 30) and the CS Act, which provides that a person may apply to the tribunal for an administrative review of "a decision under section 25 to refuse to register the person as an industry participant or promoter of a specified registration class": s 77(1)(d). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the act is to be administered generally is provided in the underlying objects of the legislation set out in s 3(1) of the Act, which are: (a) to promote the health and safety of combat sports contestants, (b) to promote the integrity of combat sport contests, (c) to regulate combat sport contests on a harm minimisation basis, (d) to promote the development of the combat sport industry.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.

[6]

Fit and proper person

The first ground on which the respondent contends that the registration refusal should be affirmed is that the applicant is not a fit and proper person to be registered as a combatant of that class within the meaning of s 13(1)(b) of the CS Act and must be refused registration pursuant to s 13(2)(a).
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies: The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
The Appeal Panel explained the relevance of the CS Act's objects to the "fit and proper person" test in Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387, [116] - [117]: 116. [I]n the context of the CS Act, we must be satisfied on the material before the Tribunal, that the applicant has the requisite knowledge of the duties and responsibilities of a registered participant (combatant) in amateur combat sports contests, but that he also is possessed with sufficient moral integrity and rectitude of character as to permit him to be safely registered to the public as a person to be entrusted as a participant (combatant) in such contests (see Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 per Walters J). 117. Without being exhaustive, where there is accepted 'improper conduct' or, as in this case, serious criminal conduct, in order to be satisfied that the applicant is a 'fit and proper person' regard should be had to what that conduct indicates as to: (1) The ability of the applicant to engage in combat sports in accordance with its rules which involve issues of: (a) Harm minimisation in regulating the use of physical force in the combat sport in question; (b) The health and safety of combat sport contestants more broadly; and (c) Honesty and integrity in following the relevant laws and rules of the combat sport in question. (2) Whether the general community or public can have confidence that the above will occur; and (3) Whether registration of the applicant will bring the industry as a whole into disrepute or is otherwise incompatible with the general objects of the CS Act as expressed in s 3(d) to promote combat sports in New South Wales.
The Appeal Panel also pointed out that the fit and proper person test does not involve the weighing or consideration of private interests, it being irrelevant to consider any benefits that might accrue to an applicant, or hardship that might be occasioned, as a result of a decision to register or not register: [66], [80] - [81].

[7]

Current CRO

The first matter on which the respondents rely as showing that the applicant is not a fit and proper person for registration as an industry participant is the fact that he is currently subject to a CRO for a drug offence imposed on 17 July 2023 that remains in force until 16 July 2024, subject to the conditions of good behaviour and treatment for drug rehabilitation.
On 4 April 2022, the applicant was stopped in his vehicle outside an apartment block in Riverwood that police were aware was used for the sale and purchase of prohibited drugs. He told police that he was delivering meat as he was a butcher. On searching him and his vehicle, police found a folding knife on his person and a Suboxone strip containing buprenorphine (a prohibited drug) and nalaxone. He could not give a reason for possessing the knife, although he later said he needed in connexion with his work as a butcher. He was charged with possessing a prohibited drug and custody of a knife in a public place.
He was sentenced by the Local Court on 17 July 2023 to a CRO without conviction for 12 months for the charge of possessing a prohibited drug in relation to having the Suboxone strip. The knife charge was withdrawn, apparently as a result of a plea deal in which the applicant pleaded guilty to the drug offence. The applicant remains subject to the CRO until 16 July 2024, subject to the conditions of good behaviour and treatment for drug rehabilitation. He points out that he has never violated any of his CRO conditions. The respondents stress that he sought registration with CSA on 7 August 2023, less than a month after the CRO referred to was imposed on him. The respondent submits that the mere fact that the applicant is currently subject to a CRO for possessing a prohibited drug demonstrates that he is not of the proper character and integrity to be registered under the CS Act, especially as one of the express purposes of the CS Act is to "promote the integrity of combat sports".
The respondents relied on my comments in Demirel v Combat Sports Authority of New South Wales and Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 47, [51], [57] in which I said that the fact that Demirel was still serving the sentence imposed under the CRO was a relevant consideration in deciding that the tribunal was not satisfied that he was a fit and proper person to be registered under the CS Act, especially as the nature of the offending was relevant to the aims of the regulatory regime, citing Murray v Combat Sports Authority and Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 18, [125].
It may be noted that the applicant has previously been subject to two other CROs, one imposed on 21 August 2024 12 months, and another on 26 April 2021 for 2 years.
I accept the respondents' submission that the fact that the applicant is currently subject to a CRO for a drug-related offence contrary to the aims of the CS Act conflicts with the objects of the CS Act and, although unlike Demirel, he has no conviction for drug supply, his being currently subject to a CRO for a drug offence shows that he is not of proper character and integrity to be registered under the CS Act.

[8]

Current FPO and WPO

On 5 August 2023, an FPO and a WPO were served on the applicant (although they were issued on 10 November 2022). Those orders remain in force and were made on the basis of his having been convicted of an offence of violence (noting also that police maintain "other relevant adverse holdings").
The conviction of an offence of violence arose because on 26 March 2016, the applicant was involved in an altercation at a Leagues Club. He was a patron of the club and pushed a security guard several times. He was charged with common assault and affray in respect of the pushing and received fines of $600 and $1000 for those offences. In Tukel v Combat Sports Authority [2023] NSWCATAD 180, [106] Simon PM considered that a current FPO was a factor in the conclusion that the applicant was not fit and proper, saying that were he granted registration, the fact that he was presently subject to an FPO "would have reputational consequences for combat sports".
The fact sheet for the incident at the St George Leagues Club on 26 March 2016 (exhibit R1, pp 106 - 110) notes that the applicant was trying to calm down a rowdy patron, but as the dispute continued, he walked towards a security guard and used his left hand to push him on the shoulder. A physical altercation ensued as both groups appeared initially to be restraining each other. The applicant ran towards the security guard and pushed him for a second time. It was those two pushes that police relied on for the charge of assault. The applicant continued to intervene in the altercation and was subsequently seized by the security guard and another guard by his arms. He made a slinging action to free his arm, which resulted in the security guard falling to the ground.
The applicant maintains that he was involved solely in order to de-escalate a dispute, although it seems to have been a little more than that and there appears to be no legitimate reason for his assaulting the security guard. Nevertheless, the assault caused no injury to any person and did not involve the use of firearms or any other weapon. It occurred when the applicant was aged 22 and he emphasizes that he has now learned to choose his friends more carefully. The offences occurred eight years ago and there have been no further charges for offences of violence on the applicant's part. While the Leagues Club incident is relevant to fitness and propriety, it does not in itself appear to merit decisive weight.
[Not for publication]

[9]

History of drug use

The applicant's personal illicit drug use is relevant to fitness and propriety. He was found guilty of possessing a prescribed restricted substance at Kogarah Local Court on 20 November 2012 and placed on an 8-month bond. At an RBT traffic stop he had been found in possession of a bottle of Masteron Drostanlone Proprionate and another bottle of trenbolic acetate (exhibit R1, p 111).
On 15 April 2020 during a roadside check of the applicant and his vehicle, police located a bottle which he said was Gamma-Butyrolactone (GHB), and that he was addicted to it, consuming over 30 ml of it daily. GHB is used as a performance and recreational drug. The applicant was charged with possessing a prohibited drug and on 21 August 2020 was sentenced to a CRO for 12 months (exhibit R1, p 81).
On 26th May 2020, he was stopped in his vehicle by police following calls from the public reporting his erratic driving. Police observed him to be affected by drugs and he said it was because he had not had his anxiety and depression medication. On searching his vehicle police found three types of prohibited drugs and the applicant later retrieved two further types of prohibited drugs from his underwear. Police also found a plunger commonly used in the use and sale of gamma-butyrolactone. They also noted a strong smell of cannabis emanating from the vehicle (id., 100 - 101). His blood was found on analysis to indicate that he was under the influence of methylamphetamine and cocaine.
In January 2023, following the imposition of his CRO, he commenced treatment for opioid addiction at the Sutherland Drug Alcohol Service. A referral letter from Dr Patricia Giles dated 16 January 2023 states that he had been smoking heroin daily for the previous two years and had used drugs since he was aged 15 (exhibit R4, p 103).
Clinical notes prepared by Dr Lucy Dodds dated 21 February 2023 report him as saying he was using heroin, smoking $300 worth daily, and having smoked up to $1500 in the past for two years (id., 139). Clinical notes by Jessica Ackerman RN dated 7 February 2023 likewise reports him as saying he was smoking approximately $300 of heroin per day (id., 122). Dr Dodds recorded, perhaps significantly, on 31 January 2023 that he had been to rehabilitation overseas in July 2022, but had relapsed as soon as he returned to Australia (id., 131).
Clause 21(d) of the CS Regulation 2014 provides that CSA may take disciplinary action against (inter alia) an industry participant where "the registered person has been convicted of an offence relating to using, trafficking or supplying drugs during the period of the person's registration", underlining the relevance of unlawful drug use by industry participants. In Murray, a combatant unsuccessfully sought renewal of his registration as he had been convicted for supply of cannabis and other drugs during the previous period in which he was registered. Rogers SM found it notable that his convictions could have given rise to disciplinary action by CSA (at [136]). The tribunal took the view that registration of an applicant with that significant recent criminal history would undermine the regulatory scheme, noting that the disciplinary regime targets drug supply (at [138]).
Although the present applicant, unlike Murray, was not registered at the time of his offending, cl 21 is relevant to the issues in this case as it shows the concern with which the Legislature views illicit drug use, trafficking or supply in the combat sports context. The applicant is currently only 12 months into his rehabilitation for a serious addiction that has lasted, by one account, for approximately 15 years. There has been insufficient time for him to show his rehabilitation from his illicit drug use, especially in light of his recent relapse following his time in rehabilitation overseas.
[Not for publication]
The CSA Code of Conduct for industry participants requires members to comply with the laws and regulations governing the combat sport and martial arts, including alcohol, drugs and anti-doping laws and regulations (exhibit R1, p 119), as prescribed in the World Anti-Doping Code 2012 (id., 318 - 341). In Murray it was held that with the applicant's recent criminal history involving drugs would undermine the regulatory regime, noting that the disciplinary regime targets drug supply and it would constitute a violation of the Code. While Mr Bazzi has no conviction for drug supply, his drug use, had it occurred while he was registered would hypothetically constitute significant breaches of the Code of Conduct and the Anti-Doping Policy. The respondent submits that the long pattern of the applicant's serious drug use casts doubt on his ability to comply with anti-drug policies were he to be registered and therefore subject to them.
The applicant has, however, been undertaking serious drug rehabilitation, commencing with Dr Patricia Giles's referral letter to Sutherland Drug and Alcohol Service dated 16 January 2023. (He also undertook rehabilitation overseas in 2022, but relapsed on his return to Australia.) By 22 January 2024, the Service's Jessica Ackerman RN reported that he had stabilized well into treatment and attends appointments as required. When he presents to the Service he is always on time, never intoxicated and is always well-mannered and polite. During conversations, he demonstrates that he is very motivated to live a peaceful life and that he is very keen to find employment. Unfortunately, because of his criminal past, that has proven to be a challenge, and he often talks about how his involvement in martial arts provides him with a meaningful activity surrounded by good people.
The body of evidence demonstrating the applicant's recent and long-term involvement with illicit drugs, however, is material on which significant weight should be placed when assessing his fitness and propriety. In my view it is a major consideration supporting the conclusion that the applicant is not at present a fit and proper person to be registered as an industry participant.

[10]

Criminal and traffic records

The altercation at St George Leagues Club took place on 26 March 2016 and resulted in fines for assault and affray totalling $1600. For the reasons set out above, however, I do not regard that episode as still meriting substantial weight.
But there are other matters in his criminal history that are relevant to CS Act registration. On 31 October 2012, he was charged with possession of a prescribed restricted substance and on 20 November 2021 received an 8-month s 10 bond (exhibit R1, p 81). On 15 April 2020 he was charged with drug possession when police performing a traffic stop during a COVID lockdown found GHB in his vehicle. He told police he was addicted to the drug and consumed upwards of 30 ml daily. He had been issued with a public health warning on 11 April 2020 in regard to non-essential travel during lockdown but was unable to provide specific details of the destination to which he was travelling. On 21 August 2020 he was sentenced to a CRO for 12 months (exhibit R1, p 82).
On 26 May 2020 he was stopped in his vehicle following public reports of his erratic driving. Police observed him to be affected by drugs, which he said was because he had not taken his anxiety and depression medication. Police searched his vehicle and found 3 types of prohibited drugs. An analysis of his blood indicated that he was under the influence of methylamphetamine and cocaine (id., 82). On 26 April 2021, he was fined $300 for the drug offence and sentenced to a CRO for 2 years for driving a vehicle under the influence of drugs (id., 83). A drug supply charge on 28 May 2020 was withdrawn. Another drug supply and proceeds charge on 18 June 2020 was also withdrawn, but the applicant was fined in $660 on a drug possession charge.
On 17 August 2022 the applicant was charged with possessing a prohibited drug and custody of a knife in a public place on the occasion at Riverwood when he told police he was delivering meat. Police noted that his vehicle was not registered to him, but to his partner. Police are aware that individuals use the vehicles of associates in order to avoid detection by automatic number plate recognition and to avoid coming under notice of patrolling police while purchasing or transporting drugs (id., 90 - 91). He was sentenced to a 12-month CRO and the knife charge was withdrawn (id., 84).
The applicant's most recent charge was on 17 August 2022 (the matter involving custody of a knife in a public place) approximately 12 months before he sought registration with CSA. His record over a 10-year period reflects a pattern of offending which raises a concern that he may commit further offences in the future, which is inconsistent with possession of sufficient moral rectitude to be registered under the CS Act. Some police holdings relating to him suggest that he may be involved in the commercial supply of drugs (id., 91, 92, 82; exhibit R4, p 93). He has never been convicted of drug trafficking, however.
As Murray pointed out, a significant and recent criminal history involving drugs is an important matter, and the effect registration of such a person would have on the industry is also relevant. Murray had been convicted of drug trafficking, unlike the applicant in this case, but the applicant has recent findings of guilt for drug-related offences. His criminal history is significant and reflects a substantial period of time during which he has offended. As was held in Fisher, serious criminal conduct "can be suggestive of a lack of good character" as it may lead to a tribunal not being satisfied that an applicant is fit and proper and can be relied on to follow applicable laws: Combat Sports Authority of New South Wales v Fisher [2002] NSWCATAP 387, [16] - [17], [97].
The Appeal Panel also declared that the fit and proper test does not involve the weighing or consideration of private interests, on the basis that they are irrelevant to fitness and propriety and any benefits accruing to an applicant or hardship that may result are also of no relevance: at [66], [80] - [81]. Past criminal conduct, however, is relevant to fitness and propriety, and involves consideration of the surrounding circumstances (Grenfell v Director-General, Department of Finance and Services [2013] NSWADT 57, [5]).

[11]

Links with OMCGs

On 25 May 2022, police attended the applicant's home as part of an operation seeking information from current and former OMCG members. The applicant spoke with the officers and told them that he had not been associated with OMCGs for a number of years and was not an active member. The officer preparing the report wrote that the applicant "is not an active member. NFPA" (exhibit R2, p 14).
On 16 August 2022, police again attended his home to enquire about his association with members of the Comancheros. As he was not at home, the officer spoke to his mother, who said that he had not been an "active member" of the Comancheros for a number of years (id., 12). On 15 October 2022 police again attended the applicant's home to enquire about any connexion with OMCG members. He was again not at home but his mother told them that he was no longer associated with the Comancheros as of a year ago and had "cleaned his life up" (id., 10 - 11). Nevertheless, her comments are evidence that he was sufficiently associated with the Comancheros OMCG for his mother to be aware of the connexion.
The applicant previously associated with Mahmoud "Mick" Hawi who until his death was president of the Comancheros. The link can be seen from the fact that on 25 April 2016 at a traffic stop Mr Hawi was a passenger in his vehicle and said the applicant had collected him from a bar. The applicant submitted that he had been simply fulfilling the responsible role of a designated driver, but at the same time, he was not displaying P plates as required by the conditions of his licence and was also currently subject to a fine default suspension (exhibit R3, p 13). Again, on 11 April 2020 it was recorded that the background on the applicant's telephone was a picture of Mr Hawi. He admitted that he had known Mick Hawi before his death as a cousin of his father's, but said he had "no affiliation" with OMCGs. Exhibit R2 states that the source for that information is the USB drive annexed to that exhibit, but for technical reasons, when it was played at the hearing, the applicant's statements were distorted to the point of unintelligibility. The evidence relating to the 11 April 2020 encounter thus does not merit significant weight.
The applicant submitted that the evidence adduced by the respondent on the OMCG point fell short of that required for proof beyond reasonable doubt. In this tribunal, however, the standard of proof is the civil standard, that is, proof on the balance (preponderance) of probabilities. By that standard the evidence provided to police by the applicant's mother clearly indicates that he had been associated with OMCG members. His explanation for his association, that it was purely a familial connexion with a distant relative seems improbable given his significant criminal history and his involvement in drug possession, if not supply.
Although the applicant was probably never a member but rather an associate of OMCG members, his link with them is incompatible with fitness and propriety under the CS Act. As was held in Tukel that "the potential involvement of persons associated with organized crime undermines the object of the Combat Sports Act. The prevention of the involvement of criminal elements in the combat sports industry is a key focus of the Combat Sports Act" (at [108]).

[12]

Character references

In support of his application in the applicant placed considerable stress on a number of positive character references he has received, starting with the favourable comments of Magistrate Kemp at his sentencing hearing at Sutherland Local Court on 17 July 2023 resulting in his current CRO (part exhibit A2), in which her Honour declared, after referring to his drug problem, that "I can also see that you are taking real significant steps towards your rehabilitation I am proud of you for doing that, I want you to stay on that path. You have taken excellent leaps and bounds in terms of your rehabilitation…. Your employment is something to be really proud of. Keep busy, keep giving back to the community including through your training and supporting vulnerable youth because vulnerable youth need to see someone like you as a role model, and you are a role model and you can continue to do that role moving forward".
Also tendered was a reference from Mr Francis McArdle, general secretary of WAKO Australia Ltd, a national sporting organization for kickboxing, dated 24 January 2024, which pointed out that the applicant is currently registered and certified as a coach with his organization and has acted in the role of coach and volunteer at multiple events over the last few years. He had always exemplified great character, friendly mannerism and good sportsmanship. WAKO was "happy to give a very positive character reference for him" and it was hoped that his registration application would be supported. He had shown great leadership with the martial arts kids he coaches and helps support through WAKO's kids light contact events, and was always a positive and well-behaved coach.
Mr Ryan McMahon, associate director at Commercial Property Group, wrote on 13 January 2024 that he has known the applicant for over two years. He states that as an Australian kickboxing champion, he owes a great deal of his success to the applicant's guidance and mentorship. Besides expressing the greatest admiration for the applicant's expertise, he writes that "Michael is a person of great character. His kindness, patience and conscientious approach are evidence not only in his interactions with me but also in the broader contributions to our sporting community. He is respected and admired by his peers and trainees alike, and I have no doubt that he will continue to make a positive impact in his professional pursuits".
In a reference dated 23 January 2023, Mr Robert Szczygiel expresses wholehearted support for the applicant's pursuit of registration. He has known the applicant for the past year, as they had trained together multiple times a week and became good friends. Michael was dedicated to honing his own skills, but was also passionately committed to assisting and guiding young students in the gym. His eagerness to share knowledge, coupled with a friendly and approachable demeanour, had made a significant positive impact on the gym community. He was always willing to help others, creating a supportive and inclusive atmosphere within the gym and had consistently displayed respect, patience and genuine concern for the well-being of fellow practitioners. He would be a valuable asset as an accredited trainer under CSA. He would approach that responsibility with the same dedication and integrity he demonstrates in their training sessions.
Impressive though these industry references are, none of them displays any awareness of the applicant's criminal history and his long-term problems with drug abuse. Magistrate Kemp was, however, fully aware of his background but nevertheless expressed the fullest support for the progress he was making in his efforts to rehabilitate himself and strongly encouraged him to pursue the work he was doing and thereby continue to be a role model for vulnerable youth. None of the referees was required for cross-examination. Taken together, the character references carry weight in the evaluation of the applicant's fitness and propriety to be registered.

[13]

Evaluation

As expressed in s 3(1), the objects of the CS Act include promoting the health and safety of combat sports contestants and the integrity and development of the industry. The inclusion of law-breaking elements in the industry, including persons involved in drug or violence offences, would run athwart those purposes. Fisher (at [55]) made it clear that, as combat sports necessarily involve physical force, the industry promotes a culture that abjures unacceptable or criminal violence both inside and outside the ring.
The Legislature intended the CS Act to keep criminal activity out of the combat sports industry (Tukel at [107]). The registration of persons with links to organized crime "would create a perception that organised crime is involved in combat sports, and the combat sports industry is linked to violence and crime. That perception undermines the statutory objective of developing the combat sports industry" (at [108]).
Similarly, Murray supports the view that registering an applicant with a significant and recent criminal history involving drugs would undermine public confidence in the industry, the importance of anti-doping programs and promoting a culture that is committed to clean sport and compliance with applicable laws, rules and codes, and would impact the industry's reputation and whether new competitors or spectators would be attracted to the industry (at [143]).
Until 18 July 2024 the applicant remains subject to a CRO for a drug offence that was imposed on 17 July 2023 and is thus recent. That offending is contrary to the aims of the CS Act and accordingly the existence of the CRO is a factor preventing the tribunal from being satisfied that the applicant is at present a fit and proper person for the purposes of the CS Act.
The applicant is also currently subject to an FPO and WPO served on the applicant on 5 August 2023. They were based mainly on his conviction of an offence involving violence, the assault and affray charges arising from the St George Leagues Club incident on 26 March 2016. For the reasons given earlier, I do not think that conviction or the FPO and WPO resulting from it merits substantial weight in the assessment of fitness and propriety today. Nevertheless, as was said in Tukel, a current FPO is a factor to be considered on the question of fitness and propriety as its mere existence in respect of an industry participant could have adverse reputational consequences (at [106]).
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The applicant's long-term drug problem weighs against fitness and propriety and has reputational repercussions for combat sports. He told Dr Patricia Giles in January 2023 that he had been smoking heroin daily for the previous two years and had used drugs since he was 15. Dr Lucy Dodds recorded him on 21 February 2023 as saying that he was smoking $300 worth of heroin daily, and as having smoked up to $1500 in the past two years. Ms Jessica Ackerman RN likewise on 7 February 2023 reports him as saying he was smoking approximately $300 of heroin per day.
He has been found guilty of drug possession on six occasions, starting on 20 November 2012. There is a gap in adverse entries (apart from the Leagues Club incident on 26 March 2016), while he was living in Lebanon between 2016 and 2020, but the record resumes with several possession counts leading to the 12-month CRO on 21 August 2020. There are no offences in 2023 or 2024.
He voluntarily sought rehabilitation in January 2023, which is to his credit, and by 22 January 2024 Ms Ackerman was able to write that he had stabilized well into treatment, attends appointments as required is punctual, always well-mannered and is polite (exhibit R4, p 107). His character references contain no hint of any substance abuse problem and speak highly of his general demeanour, character and sense of responsibility.
But at the same time, it must be borne in mind that his is a long-standing drug problem extending over approximately half his life and that he is only a little over a year into his current, and apparently successful, rehabilitation program. Significantly, after receiving some (also apparently successful) rehabilitation overseas in 2022, he relapsed on returning to Australia.
The applicant stressed that he has never been convicted of drug supply, although he has been charged with it several times. There are some circumstances revealed in the evidence that do, however, suggest the possibility that he has been engaged in trafficking. When he was stopped for erratic driving on 26 May 2020, police found in his vehicle multiple plungers of a type commonly used in the use and sale of a prohibited drug (exhibit R1, pp 100 - 101).
On 11 April 2020 he was stopped while driving a rental car. Police noted that rental cars are known for their use in drug trafficking incidents as they are registered to the company rather than a person possibly known to police (id., 93 - 94). He had in his possession $2790 in cash and a bottle of GHB (exhibit R2, 48 - 49). On 4 April 2022 when he was again found in possession of drugs he was driving a car registered not to himself but to his partner. "Police are aware that individuals utilise the vehicles of associates in order to avoid detection by automatic number plate recognition and to avoid coming under notice of patrolling police whilst purchasing or transporting prohibited drugs" (id., 90).
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His pattern of offending over a 10-year period raises a concern that he may commit further offences in the future. The anti-doping regime is central to the entire CSA regulatory scheme and his significant and recent history involving drugs, as was pointed out in Fisher "can be suggestive of a lack of good character", as well as having adverse reputational effects on the industry. It would be necessary to see a longer period of stable abstention from narcotics before it would be possible to conclude that he is a fit and proper person to be an industry participant.
Any association with an OMCG is incompatible with being a fit and proper person under the CS Act. As was held in Tukel, "the potential involvement of persons associated with organised crime undermines the objects of the Combat Sports Act. The prevention of the involvement of criminal elements in the combat sports industry is a key focus of the Combat Sports Act" (at [108]).
The reference in the security guard Lance Keverkis's statement about one of the participants in the Leagues Club fracas being a member of the Comancheros OMCG (exhibit R2, p 174) merits little weight as it is double hearsay and does not clearly identify the person referred to. On 25 May 2022 the applicant told police that he had not been associated with OMCGs for a number of years and was not an active member. The reporting officer also wrote that he was not an active member (id., 14). But the exchange does suggest some kind of association in the past.
Again, on two separate occasions in 2022 his mother told police that he had not been an active member for a number of years. He no longer associated with the Comancheros as of a year previously and had "cleaned his life up" (id., 10 - 11). Other evidence shows that his association with the late Mahmoud Hawi, a former Comancheros president, had been closer than merely as a cousin of his father, as he maintained. While the evidence leaves little doubt that he was associating with Comancheros members, and former connections are relevant, it no longer appears that he has any contact with OMCGs.
In my view the decisive factors in this application are the applicant's still being subject to a CRO for a drug offence, his long-standing drug problem and the relatively short duration of his present rehabilitation program. For a person in that position to be registered as an industry participant would reflect adversely on the industry and on CSA's anti-doping program. While the CRO will, subject to good behaviour, expire on 17 July 2024, it would be necessary for him to show a longer period of stable rehabilitation before he could be found to be a fit and proper person for registration as an industry participant. The decision under review must be affirmed.

Bazzi v Combat Sports Authority of New South Wales

At a glance

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Catchwords

Judgment (15 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (18)