Combat Sports Authority of New South Wales v Fisher

Materials

1. In deciding the appeal, we have had regard to the following: 1. Notice of Appeal dated 12 August 2022; 2. Amended Notice of Appeal dated 23 September 2022; 3. Respondent's reply to appeal dated 23 August 2022; 4. Agreed Appeal Bundle, which apart from the above documents and the written submissions of the parties included the following: 1. Decision of the Tribunal below dated 15 July 2022; 2. Transcript of Hearing below dated 31 May 2022; 3. Application to Tribunal for administrative review dated 10 November 2021; 4. Submissions of Combat Sports Authority dated 8 March 2022; 5. Submissions of Leroy Fisher dated 14 March 2022; 6. Material filed by the Combat Sports Authority pursuant to s. 58 of the Administrative Decisions Review Act 1997 dated 8 December 2021; 7. Tender bundle filed by the Combat Sports Authority dated 24 February 2022 8. "Combatants' Code of Conduct" tendered by the Combat Sports Authority at Hearing below dated 31 May 2022; 9. Character Reference of Tim Flint dated 29 November 2021; 10. Psychology Letter of Dr Roger Blake dated 29 November 2021; 11. Character Reference of Joshua Nosworthy dated 29 November 2021; 12. Character Reference of Daniel Khan dated 29 November 2021; 13. Character Reference of Lynda Tubuna dated 29 November 2021; 14. Letter to Tribunal from Leroy Fisher dated 14 February 2022; 15. Letter to Tribunal from Gavin Comtesse (CCO) dated 14 February 2022 1. Appellant's written submissions on appeal dated 23 September 2022; 2. Respondent's written submissions in response dated 7 November 2022; 3. Appellant's written submissions in reply dated 14 November 2022; and 4. Oral submissions made on behalf of the parties at the hearing.

Factual background

1. The circumstances of each of the offences for which the respondent on 17 March 2017 was sentenced were set out in R v Fisher [2017] NSWDC 56 at [4]-[11], included in the s 58 Bundle tendered at the hearing below.
2. The sentencing judge observed at [21] and [22] that 'each offence was a serious example of its type'; and at [24] that: The offences had different and discrete elements but many of the aspects that aggravate each are part of a common theme - humiliation and degradation of his victim. Each offence involved anger, jealousy, rage and the desire to dominate and demonstrate his dominance.
3. It should be noted the victim at the time was 20 years of age.
4. The Authority summarised the remarks of the sentencing judge, correctly in our view, as follows: 1. the offences were "overt act[s] of dominance and violent control, characteristic of crimes involving domestic violence": at [15]-[16]. 2. the Applicant "demonstrated his physical dominance in a particularly degrading manner" by a forced act of oral intercourse, involving the victim gagging and vomiting: at [19], [9]. 3. there was a "considerable degree of physical violence" in the crime of detention with intent to intimidate: at [21]. 4. each of the acts of sexual intercourse without consent were very serious, carried with them elements that were degrading and humiliating, and involved the Applicant's use of his physical strength to humiliate and attempt to degrade his victim: at [22].
5. Of particular relevance to the questions before us, is the fact that the conduct of the respondent for which he was convicted demonstrated at least three elements as follows: 1. The use of serious violence, including sexual assault, on a young female; 2. Such violence involved the respondent using his physical strength in a manner which was particularly cruel, degrading and humiliating towards the young woman; and 3. Viewed objectively it was an extremely severe case of misogyny.
6. The respondent's sentence commenced on 21 July 2015. The non-parole period expired on 20 July 2020 and the respondent was released on parole on 1 October 2020. The sentence will not expire until 20 December 2023.
7. The balance of the facts were summarised by the Tribunal below at [15]-[21] of the Decision, which is not in dispute between the parties: 15 Prior to this, the Applicant had a negligible criminal record involving one conviction for low range PCA (being driving a motor vehicle on a public road with a blood alcohol concentration from 0.05 to 0.079). 16 Since being released from custody, after being granted parole, he has exhibited good behaviour. He has: (1) Actively participated in a domestic violence course which consisted of ten sessions with Dr Roger Blake, a psychologist with the Australian Psychology Board and member of the Forensic College of the Australian Psychological Society ("Dr Blake"); (2) Sought and undergone treatment from Dr Roger Blake, a psychologist to support him in his mental health; (3) Obtained full-time employment with a fencing contractor with whom he has been employed for over a year; (4) Saved sufficient finances to purchase a vehicle and to seek shared rental accommodation with friends; (5) Joined a bible study group which meets weekly as described by Senior Pastor Tim Flint of the Wagga Evangelical Church ("Senior Pastor Flint"); (6) Made a contribution to his local community by his membership of: (a) Wagga Evangelical Church; (b) Wagga Touch Association; (c) The Club Lime Gym; (d) Adapt Muay Thai Mixed Martial Arts Academy; and (e) Muay Thai. 17 Additionally, despite his inability to compete given the Reviewable Decision, the Applicant has continued training with his focus being that he may be able to compete in the future. 18 Dr Walker, who was formerly the Senior Forensic Psychologist at Junee Correctional Centre and experienced in sex offender assessment describes the Applicant as follows: "I have seen many people as part of their post release from prison. In my opinion, Mr Fisher is one of the few people who seem truly committed to being a positive citizen in Wagga in terms of rehabilitation. He is not a risk of further violence and his progress since release shows me that he is able to be a part of society in a pro-social way. It is my hope that he can re-join a sport he loves and be given a chance in a sport that has helped so many people who have been in trouble with the law in the past or come from disadvantage. I am entirely confident that he would be a great ambassador for local boxing." 19 Mr Gavin Comtesse, who is the Applicant's Community Corrections Officer and undertake supervision of the Applicant during his parole period. Mr Comtesse states: "From the outset I have found the [Applicant] to be nothing short of compliant and engaged seamlessly in all interventions he has been referred to. [The Applicant] has completed the required sessions allocated addressing his offending behaviour. [The Applicant] has also complied with no resistance to scheduling and subsequently has had this removed from his order. [The Applicant] is currently employed full-time. This is a notable achievement as it is very difficult for offenders to achieve such a goal. [The Applicant] since gaining employment has engaged in other pro social activities such as regular contact with his church group and training with a local boxing gym. [The Applicant] has made comment that he is looking to compete on the boxing circuit again and as his community corrections officer this is supported. [The Applicant] immersing himself in pro social environments and activities will increase his likelihood of successfully completing his order and not returning to the justice system. I support [the Applicant's] application to register as a competitive boxing athlete and I hope this letter of support assists you in making this determination. [The Applicant] since commencing his order has displayed a pro social lifestyle and has folded back into the normal lawful living expectations of society well." 20 Senior Pastor Flint describes the Applicant's articulating "genuine remorse and repentance for the past actions" and further described the Applicant's character in the following terms - "gentle nature", "selflessness" and "disciplined work ethic". 21 Similar character assessments were provided by: (1) Ms Lynda Tubana being the mother of a friend of the Applicant, (2) Mr Joshua Nosworthy, being one of the Applicant's closest friends; and (3) Mr Daniel Khan, being the Applicant's martial arts and boxing coach.

The legislative scheme

1. The CS Act regulates the conduct of professional and amateur combat sports in NSW. Its objects, as set out in s 3, are: 1. to promote the health and safety of combat sport contestants, 2. to promote the integrity of combat sport contests, 3. to regulate combat sport contests on a harm minimisation basis, 4. to promote the development of the combat sport industry.
2. 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 other contestants: s 4(1).
3. 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. The term 'combat sport contest' is defined in s 4(1) to mean: … [a contest], display or exhibition of combat sport: (a) to which the public are admitted on payment of a fee, or (b) arranged or held on a for profit basis, or (c) that is held on premises licensed under the Liquor Act 2007 or the Casino Control Act 1992, or (d) where at least one of the combatants is competing for a monetary prize or other valuable reward, or (e) that is prescribed by the regulations for the purposes of this definition, but does not include a contest, display or exhibition excluded from this definition by the regulations.
4. Section 10(1) provides that the Authority may determine the registration classes of combatants for the purposes of registration as a combatant under the Act. However, the Authority is also required 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 (CS Act s 10(3)).
5. Section 11 permits a person to make an application to be registered as a 'combatant' of a specified registration class. The word '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.
6. Section 13 provides for the determination of such applications. Section 13(1) provides that the Authority may register an applicant if satisfied of the five criteria set out at (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."
7. Section 13(2)(a) provides that the Authority must refuse to register an applicant as a combatant of a specified registration class if it is not satisfied of the matters specified in s 13(1).
8. Together, ss 13(1)(b)and 13(2) operate such that the Authority (and the Tribunal, when standing in the shoes of the Authority in an administrative review) must be positively satisfied that an applicant is a fit and proper person to be registered as a combatant of that class before the power to register a combatant can be exercised.

Scope and nature of appeals

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Limited [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the Appellant must demonstrate either an error on a question of law, which may be argued as of right; or that permission (that is, 'leave') to appeal should be granted to bring the appeal: see s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. On an appeal that involves the exercise of a statutory discretion, such as, whether to register an applicant as a combatant under s 13(1) of the CS Act, the decision can only be overturned in limited circumstances: House v The King (1936) 55 CLR 499 at 505-506.
3. In Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297, the Court of Appeal summarised the House v The King at [14] (Tobias AJA) and held that an attack on a discretionary decision must fail: … unless it can be demonstrated that the decision maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning."

Ground 1: failure to understand and properly address the Authority's case concerning the interpretation of the term 'fit and proper person'

Grounds 2(a) and (b): error in failing to have regard to the promotion of the development of the combat sports industry, and to the importance of public confidence in the combat sports industry

1. These grounds of appeal are best dealt with together.
2. We accept that these grounds do raise questions of law: see Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited [2020] NSWCATAP 182 at [170]-[175]; Secretary, NSW Department of Education v Gabriel's Family Day Care Pty Ltd [2021] NSWCATAP 263 at [108]-[111].
3. A central plank of the Authority's submissions below was that the concept of a 'fit and proper person' in s 13(1)(b) of the CS Act is informed by, and to be interpreted in light of, the express objectives of the CS Act, and in particular, the promotion of the development of the combat sport industry: s 3(1)(d).
4. This submission was developed in the following way in the Authority's written submissions below: see [28], [33] and [35]: The Authority submits that consideration of the expression "fit and proper person" must have regard to the nature of combat sports and the objects of the [CS Act] in regulating combat sports and promoting the combat sport industry. A further relevant consideration is that the registration of the applicant as a combatant would bring the combat sports industry into disrepute. An express goal of the [CS Act] is to promote the development of the combat sport industry: s 3(d). This object is furthered by attracting new competitors and spectators to the industry and maintaining a positive reputation for the industry. To achieve that goal, combat sports should promote a culture that is aligned with the values of the broader community, particularly in relation to the condemnation of violence against women. There is particular work to be done in countering public perceptions of combat sports as promoting or encouraging violence in all forms. Allowing the applicant to register as a combatant, before he has even completed his period of parole or adequately demonstrated his rehabilitation, may be seen as a failure to adequately condemn his offences by the Authority or that such offences would not be seen as a bar to registration. It would create a perception of combat sports as one with a culture of violence both in and out of the contest area. The Authority submits that this would undermine the statutory objective of developing the combat sport industry.
5. The Authority then referred to the way in which the Tribunal summarised this submission in the Decision at [29]: In this respect, the First Respondent contended that in order to give "fit and proper person" meaning, one must have regard to the nature of combat sports and the objects of the [CS Act] in regulating combat sports and promoting the combat sports industry. As such, as contended by the First Respondent: … (2) The registration of the Applicant would have a detrimental impact on public relations for the First Respondent in that it would bring the First Respondent "into disrepute" as others may perceive the industry as condoning the crimes committed by the Applicant. Additionally, it would be contrary to the express goal of the [CS Act] in s 3(d) which is to promote the development of the combat sports industry;
6. The Authority submitted that this mischaracterised the Authority's submissions because the Authority did not submit that a 'detrimental impact on public relations for the First Respondent' was relevant to the assessment of whether the respondent was a fit and proper person. Nor did the Authority submit that bringing the Authority into disrepute was relevant.
7. The contention made by the Authority was that its arguments below were not concerned with the effect that granting registration to the respondent will have on the Authority or impact on the 'public relations for the First respondent'. Rather, the central contention of the Authority was that granting the respondent registration would put the whole industry into disrepute and undermine public confidence in the industry as a whole which would be contrary to the express goals of the CS Act.
8. We note that at [29] the Tribunal did refer to the Authority being brought into disrepute 'as others may perceive the industry as condoning crimes committed by the applicant'. However, the Authority pointed out that when the Tribunal came to dealing with the Authority's submissions on this issue in the Decision, it only did so in the following sentence at [36]: I do not accept, as contended by the Respondent that the interpretation of what is "fit and proper" is be determined with reference to public relations considerations.
9. The Authority submitted that the above sentence picked up the erroneous summary of the Authority's submissions at D [29(2)], and then dismissed it, with the epithet 'public relations considerations'. The Authority accepted that if the issue was merely a question of 'public relations considerations' relevant to the Authority, this may not be relevant to the 'fit and proper' person test.
10. However, the Authority contended that its submissions were directed to the effect on the promotion of the development of the combat sports industry and public confidence in the industry as a whole as contemplated by s 3(1)(d) and that the Tribunal did not engage with this argument or wrongly rejected it.
11. The Authority submitted that the Tribunal erred in rejecting considerations of the public perception and culture of the industry as impermissible or incapable of being relevant to the proper application of the term 'fit and proper person' within the meaning of s 13(1)(b).
12. The submission was that s 3(d) of the CS Act provides an express statutory basis for taking into account the promotion of the development of combat sports industry. By s 33 of the Interpretation Act 1987 (NSW) (the Interpretation Act), the 'construction that would promote the purpose or object underlying the [statute] … shall be preferred to a construction that would not promote that purpose or object'.
13. The Authority submitted that in this context, the development of the combat sports industry is promoted by considering a person's fitness and proprietary including with regard to the importance of public confidence in the combat sports industry, and the promotion of an appropriate culture in the combat sports industry.
14. The respondent, in reply, did not directly engage with the contention that the Tribunal had failed to engage with the central plank of the Authority's submissions below. Rather, the respondent contended that the question of whether the applicant is a 'fit and proper person' is purely a question of fact and relied upon the observations of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 (Bond).
15. As stated by us already above, in our view, a failure on the part of the Tribunal to engage with the Authority's case does amount to an error of law. The observations of Toohey and Gaudron JJ, in our view, demonstrate that the meaning of the term 'fit and proper person' does involve a question of statutory construction and that regard must be had to the particular legislation.
16. Accordingly, the failure to have regard to the particular statutory construction being urged by one of the parties will amount to an error of law.
17. Similarly, the respondent in reply when dealing with grounds 2(a) and (b), did not seek to defend the Tribunal's construction of s 13(1)(b). In particular, the respondent did not deal with the Authority's contention that the Tribunal wrongly failed to take into account the object in s 3(d) of the CS Act 'to promote the development of the combat sports industry' and wrongly rejected as irrelevant the importance of public confidence in the combat sports industry, and the importance of the promotion of an appropriate culture in the combat sports industry.
18. Rather than dealing with the specific criticism of the Tribunal's reasons raised by these appeal grounds, the respondent dealt with the evidence to justify the overall conclusion that the respondent is a 'fit and proper person'.
19. The ultimate conclusion as to whether or not the respondent is a 'fit and proper person' based on the evidence filed is not directly relevant to the errors of law identified by the Authority. We take it to be that these submissions are to be relied upon if the Appeal Panel accepts the mutual submissions of the parties that in the event an error of law has been identified, that the Appeal Panel should reconsider the matter for itself and either affirm or set aside the decision to refuse the respondent registration under the CS Act.
20. The respondent appears to submit that the Tribunal found that allowing the respondent to register as a combatant would not undermine public confidence in the combat sports industry and would not be contrary to the promotion of an appropriate culture in the combat sports industry. No specific reference was made to any paragraph of the Tribunal's reasons.
21. We accept the Authority's submission that to the extent the Tribunal did consider these issues, it dismissed them by its statement that they were irrelevant 'public relations considerations'.
22. In general, we accept the Authority's submissions and uphold these grounds of appeal.
23. In our view, the objective of maintaining public confidence in the combat sports industry is a relevant factor in deciding whether or not an applicant is a 'fit and proper person': see, for example, Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; New South Wales Bar Association v Cummins [2001] 52 NSWLR 279 at [20].
24. While care needs to be taken in drawing analogies from different statutory contexts, there is no reason why the maintenance of public confidence in a particular sphere of endeavour should be considered completely irrelevant in the assessment of fitness and proprietary in the context of the combat sports industry legislation. As noted by the President of the former Administrative Decisions Tribunal, at [41], in Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6: Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.
25. Accordingly, the submission of the Authority raised before the Tribunal that allowing the respondent to be registered under the CS Act would undermine public confidence in the combat sports industry as a whole, should not have been dismissed as 'irrelevant'.
26. The Authority's submission below was that the fit and proper person test should be construed so as to take into account the values of the broader community, particularly in relation to the condemnation of violence against women.
27. In this regard, we agree with the Authority's submission that public confidence in a person's fitness and proprietary can and should take into account the way in which the public expects a regulated industry, such as the combat sports industry, to take seriously the question of domestic and family violence in Australia and the need for action to prevent such violence: see, for example, Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [87].
28. As combat sports necessarily involves physical force (albeit in a regulated in consensual context), the combat sports industry has a particular interest in the promotion of a culture that abjures unacceptable or criminal violence outside and inside the ring, and especially domestic violence against women.
29. In our view, this is a relevant consideration in the matter of assessing the respondent's fitness and proprietary to hold a registration under the CS Act.
30. For the reasons we have given above, in our view, the Tribunal either did not engage properly with this submission or, alternatively, erred in its construction of the term 'fit and proper' within the meaning of s 13(1)(b) of the CS Act, in that the Tribunal failed to take into account the object in s 3(d) of the CS Act 'to promote the development of the combat sports industry' and, in particular fell into error when it rejected as irrelevant the importance of maintaining public confidence in the combat sports industry; and the importance of promoting an appropriate culture that abjures or takes seriously acts of severe violence against women.

Ground 2(c): Error in stating the applicable principles concerning the meaning of 'fit and proper person', including by wrongly equating the concept of a 'fit and proper person' with the assessment of the 'public interest

Ground 2(d): Error in taking into account the asserted personal benefits to the Applicant in being registered as a combatant

1. Again, in our view, it is best to discuss these grounds together.
2. The submission of the Authority was, first, that the Tribunal stated at [32] that: '… public interest considerations play a role in the assessment of fitness and proprietary: Director-General Transport New South Wales v A/C (GD) [2011] NSWADTAP 65 at [37]. The test for whether a person is fit and proper is guided by similar considerations to those applying to the 'public interest': Green v Commissioner of Police, New South Wales Police Force (2014] NSWCATAD 59 at [72]­ [79].
3. Second, the Tribunal's alleged error of principle in reducing the 'fit and proper person' test to a consideration of what is in the 'public interest' manifested itself in the Tribunal's reasoning at [34]: ... the ends to be served by [the precise activities that the Applicant would be engaged in] to both the Applicant and the public at large are relevant to a consideration of the meaning of that phrase [i.e. "fit and proper person"]. A service that is served by those activities is, inter alia, allowing an individual a safe and regulated place to express physical force. This is not only in the interests of the public at large but with specific respect to the Applicant, the evidence supports that it assists his mental health and continued rehabilitation. [emphasis added]
4. The Authority submitted that the Tribunal attempted to apply the 'public interest' test by seeking to ascertain what was in the interest of the public at large. In doing so, the Tribunal took to be relevant the evidence that the respondent's mental health and rehabilitation would be assisted by allowing the respondent to engage in combat sports. The Authority submitted that this was not a relevant consideration as to whether or not the respondent was a fit and proper person. It submitted that the Tribunal wrongly conflated the concept of a 'fit and proper person' within the broader concept of the 'public interest'.
5. The respondent in his submissions in reply did not directly engage with the Authority's argument that the Tribunal had erred in its summary of the applicable principles at [32]. Instead, the respondent relied upon evidence that the respondent would be a 'great ambassador' for boxing. It should be noted that the Tribunal did not make any finding concerning that evidence as such.
6. Similarly, in respect of ground 2(d) the respondent's submissions did not contest the Authority's contention that the Tribunal took into account the asserted benefits to the respondent in the application of the 'fit and proper person' test. Also, the respondent's submissions did not directly challenge the Authority's contention that it is an error to take into account whether or not the respondent would receive benefits to his mental health and rehabilitation from competing in amateur boxing in assessing whether or not the respondent is a 'fit and proper person'.
7. Rather, the respondent submitted that there would be further benefits to the community as a whole and the combat sports industry in particular arising from his registration as a combatant.
8. For the reasons which follow, we agree with the Authority's submissions in respect of these two grounds. In essence the Tribunal erred in taking into account an irrelevant consideration by considering the personal benefits to the respondent's mental health and rehabilitation from competing in amateur boxing as relevant to the question whether the respondent is a 'fit and proper person'.
9. The assessment of whether a person is a 'fit and proper person' is an assessment of that person's fitness and proprietary. It is an assessment of the individual's suitability to participate in the relevant profession, industry, or field of endeavour. That does not mean that the test of whether a person is 'fit and proper' collapses into a test of what is in the 'public interest', as the Tribunal appears to have done at [32]. Whether or not the respondent would receive a personal benefit from being registered is an irrelevant consideration as to whether or not he is 'fit and proper person'.
10. The Tribunal cited Green at [72] - [79] in support of the proposition that 'the test for whether a person is fit and proper is guided by similar considerations to those applying to the 'public interest'. Green concerned a review of a refusal to issue a firearms licence under the Firearms Act 1996 (NSW) (the Firearms Act). As recorded in Green at [6], under the Firearms Act, a licence could only be issued if 'the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace': s 11(3)(a).
11. Further, the Commissioner was empowered to refuse an application for a license if the Commissioner considered that issue of the license would be contrary to the public interest, s 11(7). It should be noted that the objects of the Firearms Act includes an overriding need to ensure public safety: s 3(a) and (b).
12. Senior Member Walker considered the 'fit and proper person' test under the Firearms Act in Green at [72] - [79]. Nowhere in that passage is the term 'public interest' specifically used. The term 'public safety' is used, which, as noted above, has relevance to the 'fit and proper person' test in s 11(3)(a) of the Firearms Act and it also appears in the objects of that Act.
13. Senior Member Walker in Green at [84] - [89] separately dealt with the application of the 'public interest' test under s 11(7). The Senior Member at [87] expressly noted that, as the possibility for refusing an application on the ground of character (i.e. the 'fit and proper person' test) was dealt with elsewhere in the same section of the Firearms Act, it would be reasonable to infer that the Parliament intended that the public interest discretion operate in areas in which the character ground was not relevant, or possibly, in certain circumstances where an objection on character grounds would not be sufficient in its own right to warrant a refusal.
14. Accordingly, Green does not support the proposition for which the Tribunal cited it at [32], namely that the test for whether a person is fit and proper is guided by similar considerations to those applying to the 'public interest'.
15. We agree with the Authority's submission in this regard. If anything Green emphasises that the 'fit and proper person' test is distinct from a generalised 'public interest test'.
16. Nextly, the Tribunal cited A/C at [37] in support of the proposition that public interest considerations play a role in the assessment of fitness and proprietary. The reasons of the Appeal Panel at [37] in A/C were as follows: The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed (sic) or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond (1990) HCA 33; (1990) 170 CLR 321 (26 July 1990) [(Bond)] at [64] per Mason CJ.
17. In understanding the remarks of Mason CJ in Bond regard must be had to the statutory context, being s 88(2) of the Broadcasting Act 1947 (Cth), which relevantly provided: The Tribunal may suspend or revoke a commercial licence if it appears to the Tribunal that it is advisable in the public interest to do so, having regard only to the following matters or circumstances: the Tribunal is satisfied that the licensee: is no longer a fit and proper person to hold the licence;
18. The full passage of the reasons of Mason CJ in Bond was: ... though fitness and propriety are necessarily related to the holding of the licensee's commercial licence and to the provision of a broadcasting service pursuant to that licence (see Re New Broadcasting Ltd. (44)), the concept should not be narrowly construed or confined. It must extend to any aspect of fitness and propriety that is relevant to the public interest, because the Tribunal's power to suspend or revoke commercial licences is only exercisable "if it appears to the Tribunal that it is advisable in the public interest to do so, having regard only to the ... matters or circumstances"' set out in pars (a), (b) and' (c) of s. 88(2). [emphasis added]
19. Accordingly, it can be seen that Mason CJ referred in Bond to the public interest as informing an aspect of the fit and proper person test because the statutory scheme under consideration in Bond specifically required that.
20. In contrast, public interest is not an aspect of the fit and proper person test described in s 13(1)(b) of the CS Act.
21. Accordingly, the Tribunal's proposition in the second sentence of [32] is stated too broadly to the extent that the Tribunal intended the fit and proper person test to be able to come within a generalised principle concerning 'public interest considerations' of whether or not to grant a person registration as a boxer.
22. In our view it is wrong to collapse the fit and proper person test into a test of what is in the public interest.
23. It does appear to us that this error of principle led the Tribunal erroneously to consider or take into account the fact that the evidence supported the proposition that granting the respondent registration to engage in combat sports activities under the CS Act would assist his mental health and continued rehabilitation. It is well established that any hardship that would be occasioned by a decision not to grant a licence is not relevant to the assessment of a person's fitness and proprietary: see Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [73]; Lal v Director-General, Department of Transport [2001] NSWADT 74 at [47].
24. In our view, the converse also follows, namely, that when an individual has applied for a licence or for registration that is necessary for participation in a certain field, any personal advantage that would be occasioned by the decision cannot be relevant to the assessment of the person's fitness and proprietary.
25. The fit and proper person test is, fundamentally, directed to the character and reputation of the applicant. Whether or not the applicant would receive benefits to his mental health and rehabilitation from competing in amateur boxing cannot be relevant to that test. However, it does appear that the Tribunal, erroneously, did consider such personal benefits to be relevant.
26. In our view, it is erroneous to contemplate personal benefits the applicant may receive by obtaining registration and then on 'public interest' grounds allow this factor to outweigh what otherwise may be the applicant's lack of fitness or proprietary to ultimately come to a conclusion as to whether the applicant is a 'fit and proper person' to be registered as a combatant for the purposes of s 13(1)(b) of the CS Act.
27. As stated, whether or not the applicant would receive benefits to his mental health and rehabilitation by competing in amateur boxing cannot be relevant. Accordingly, in our view, the Tribunal erred in its application of the term 'fit and proper' within the meaning of this s 13(1)(b) of the CS Act and we uphold these grounds of appeal.

Ground 2(e): Error in adopting an unduly narrow approach directed towards whether previous violence occurred in the context of boxing

1. The Authority submitted that the Tribunal erred in adopting an unduly narrow approach to the construction of the term 'fit and proper'. The way it did so was by focusing disproportionally on whether a previous act of violence occurred in the specific context of competitive boxing.
2. The Authority referred to the way in which the Tribunal at [31], firstly extracted a passage from the observations of Toohey and Gaudron JJ in Bond at 380 that the expression 'fit and proper person' takes its meaning 'from the activities into which the person is or will be engaged and the ends to be served by those activities'. The Tribunal then returned to this observation at [33], as follows: As quoted above, (the meaning of the term 'fit and proper') must be guided from the precise activities in which the person is or will be engaged and the ends to be served by those activities. (emphasis added)
3. The Authority pointed out that the qualifier 'precise' was important and added into the words of Toohey and Gaudron JJ. The Authority pointed out that the Tribunal then repeated this mis-formulation in the final sentences of [33] and [36]. The ultimate conclusion reached at [38] was as follows: Considering the precise activities that the Applicant would be engaged with if registered and able to compete as an amateur boxing [sic], and prior to considering the more contemporaneous evidence, I find that the events occurring in June 2015 and leading to his conviction have at their highest, an indirect connection to the sport of boxing. Conduct which is violent and displays a disrespect for the safety and sanctity of others may, in appropriate circumstances, led [sic] to a finding that in the context of boxing, that an individual might disregard the harm minimisation rules and processes and, as such, is a risk to fellow competitors or others in the boxing context. The assaults were an overt act of dominance and violent control, albeit in a domestic context and not in the context of competitive boxing. [emphasis added]
4. The Authority submitted that the Tribunal's repeated emphasis on the supposed requirement to consider the 'precise' activities in which the respondent would be engaged led the Tribunal, in this passage, to adopt an unduly narrow approach to the importance of violence if it occurred outside the context of competitive boxing.
5. The respondent in reply submitted that the Tribunal did not focus disproportionally on whether the previous acts of violence occurred in this specific context of competitive boxing. In this regard, the respondent pointed out that the acts of violence in question did not involve employing 'boxing strategies or actions' so as to bring a relevant connection between those acts of violence and his desire to be registered as an amateur boxer.
6. We agree with the submission of the Authority that the conclusion and expression of reasoning at [38] appears to be an unduly narrow construction of the term 'fit and proper person'. The Tribunal unduly concentrated on the proposition that the respondent, having violently sexually assaulted a former girlfriend, only had at its 'highest' an 'indirect connection' to the sport and boxing industry, because the act of violence did not occur during a boxing match. The Tribunal appears to have considered that an act of violence on the part of the respondent will only have a direct connection with the respondent's fitness and proprietary if it occurred in the context of a competitive boxing match so as to suggest that the individual might disregard the harm minimisation rules and processes.
7. We notice that the Tribunal acknowledged that violent conduct may lead to a finding of risk to fellow competitors in the boxing context but qualified this with 'in appropriate circumstances': at [38]. Thereby the Tribunal appears to have the view that the respondent's acts of violence were not the 'appropriate' circumstances for such a finding because they occurred in a domestic context and not in the context of competitive boxing.
8. In Commissioner of Police v EMB [2021] NSWCATAP 63, the Appeal Panel considered an appeal from a decision of the Tribunal to grant a firearms licence to the applicant. The Tribunal considered two sets of allegations of child sexual abuse against the applicant. The Tribunal concluded that, as the conduct did not involve firearms, the conduct did not lead to a conclusion that the applicant was not a fit and proper person to hold a firearms licence. The Appeal Panel held that this approach involved an error of law, including observing at [48] and [53]: ... the Tribunal's application of the principle stated by the High Court in Bond was too narrowly based. The term "fit and proper" itself carries no precise meaning, and takes its meaning from its context, the activities in which the person is or will be engaged, and the ends to be served by those activities. That the consideration is not limited to the specific functions or activities enabled by the holding of a licence appears in the High Court's reference to character and reputation... The Appeal Panel agrees with the Commissioner that in focussing on conduct associated with possession or use of a firearm, and discounting the child sexual assault conduct found to be true because it did not have such an association, the Tribunal adopted an unduly narrow approach to the construction of the term "fit and proper" in its statutory context. That conduct was potentially relevant for the same reasons as was the applicant's traffic history, as evidence going to the applicant's attitude towards, and social expectations with regard to, public safety.
9. We agree with the Authority that the above reasoning is apt to apply in the present case. The Tribunal adopted an unduly narrow approach to the construction of the term "fit and proper" in its statutory context. It appears to have wrongly limited its consideration by focusing on the 'precise activities' to be undertaken, and therefore discounted the respondent's acts of violence in the application of what should be a broad 'fit and proper person' test.
10. For example, in Cummins the Court of Appeal considered the case of a barrister who for decades had failed to lodge tax returns. The Court made clear that lack of fitness to practice in the legal profession can be demonstrated by conduct which occurs outside professional practice where such conduct brings the entire legal profession into disrepute: at [20]-[21],[30].
11. The respondent's acts of violence were serious acts of sexual violence undertaken in a cruel, intimidating manner towards a 20 year female of less physical strength. However, because they did not occur during a boxing match, the Tribunal appears to have discounted their importance to an 'indirect connection' to the question at hand at [38].
12. In our view, such an approach denotes error. The features of the respondent's crimes which are particularly deplorable are features which could only occur outside the regulated, supervised context of a boxing match. However, this makes them all the more deplorable.
13. Such serious criminal conduct, of and by itself, can be suggestive of a lack of good character on the part of the respondent generally, such that a Tribunal may not be satisfied that the respondent is a 'fit and proper' person to lawfully and properly follow the laws of boxing in all of its manifestations including that of harm minimisation as well as minimum standards of honestly and integrity and further, may bring the whole industry into disrepute.
14. Accordingly, we uphold this ground of appeal.

Ground 2(f): Error in applying passage from Second Reading Speech

1. The Authority submitted that the Tribunal adopted an unduly narrow approach to the construction of the term 'fit and proper' by construing that provision by regard to a passage from a Second Reading Speech which concerned an entirely differently provision.
2. The Authority's submission focussed on the Tribunal's reasons as expressed at [35]: Additionally, the purpose for which the "fit and proper" test seeks to serve with specific reference to the Act is also relevant. According to the Second Reading Speech dated 23 October 2013, the introduction of a stronger "fit and proper'' test was primarily for roles that can significantly influence the outcome of boxing contests with a particular concern with respect to promoters, managers and match-makers and any connections they may have with organised crime. The Second Reading Speech included: "The reforms of the bill were developed in response to a review of the current Combat Sports Act, which found that ... a stronger fit and proper person assessment process is needed, particularly for roles that can significantly influence the outcome of contests, the industry and the safety of combatants; and that promotors should be accountable for the contests they arrange and hold ... There is no room for organised crime in the combat sports industry or in the gyms where combatants train. Police are being given new powers to work with the Combat Sports Authority to keep criminals out of the sport ... The commissioner may determine that a person cannot be registered in those roles on fit and proper person or public interest grounds, and the Combat Sports Authority must, under clause 25(2), enforce that determination." [Emphasis added by the Tribunal)
3. The Authority also referred to the remarks of the Tribunal at [36] as follows: This correlates with the First Respondent's Policy in classifying the level of risk associated with promotors, managers, and match-makers "high" (i.e. they were in positions of power with the capacity to unfairly influence boxing matches and more likely to do so if such individuals had connections to organised crime). Conversely, the risk associated with a combatant in respect of these affairs as recorded in the Policy is "low" (i.e. they were not in positions of power to influence boxing matches in the same manner as promotors, managers, and match-makers). This does not otherwise negate from the discretion of the First Respondent in considering whether an individual is "fit and proper", but I do not accept, as contended by the Respondent that the interpretation of what is "fit and proper" is be determined with reference to public relations considerations. Rather, and to repeat the words of the High Court, it is to be determined by the precise activities in which the person is or will be engaged and the ends to be served by those activities as supported by an analysis of the Second Reading Speech.
4. The Authority contended that at [36] the Tribunal appeared to place special weight on the importance of maintaining integrity of contests and excluding people who might unfairly influence boxing matches, inter alia, by reference to connections with organised crime.
5. The Authority contended that the Tribunal held at the conclusion of [36] that the assessment of fitness and propriety 'is to be determined by the precise activities in which the person is or will be engaged and the ends to be served by those activities as supported by an analysis of the Second Reading Speech'. The Authority placed particular reliance upon the last words of that quotation that is 'as supported by an analysis of the Second Reading Speech'.
6. The Authority's submission was that it did not make sense to single out the matters addressed in the Second Reading Speech in the case before it. The matters the subject of the passage which the Tribunal extracted and emphasised at [35] concerned 'a stronger fit and proper person assessment process'. The Tribunal, the Authority contended, wrongly confused this to 'a stronger 'fit and proper' test'. The difference is significant, according to the Authority because the Second Reading Speech was addressed to the process by which applicants were assessed as being fit and proper, not the standard of fitness and proprietary that was being expected.
7. The balance of the Authority's written submissions in this regard were as follows: Further, the stronger "assessment process" addressed in the Second Reading Speech was the assessment process for the determination of applications for registration as industry participants or promoters. So much is clear from the final sentence of the extracted passage. Specifically, the passage appears to be an explanation for the inclusion of ss 25(2)(b) and (c) and 26 in the CS Act, which establish a mechanism whereby the Authority is required to refer applications to the Commissioner of Police for a "security determination" which, if adverse to the applicant, binds the Authority (a similar mechanism as employed in other legislation such as the Explosives Act 2003 (NSW) and the Tattoo Parlours Act 2012 (NSW)). This case did not involve an application for registration as an industry participant or promoter (which occurs under Part 2, Division 3 of the CS Act), but rather an application for registration as a combatant (which occurs under Part 2, Division 1 of the CS Act). Where the application is for registration as a combatant, there is no mechanism, let alone a requirement, for referral to the Commissioner of Police for a "security determination". That is, the matters which the Tribunal extracted and emphasised from the Second Reading Speech concerned a separate Division of the Act, and were entirely irrelevant to the provision which was the subject of the present proceedings. There was, in any event, no assistance to be gained from the Second Reading Speech in the present case. The Second Reading Speech did not address the requirement in ss 13(1)(b) and 13(2) that the Authority must be satisfied that an applicant for registration as a combatant is a "fit and proper person" as a precondition to registration. That is because that provision was not relevantly different to the provision under the predecessor legislation: see ss 9(1)(a)(ii) and 9(1)(b) of the Combat Sports Act 2008 (NSW), and so did not require further explanation in the Second Reading Speech to the Combat Sports Bill 2013. In any event, even if the passage of the Second Reading Speech cited had concerned the relevant provision to the present case (which, again, it did not), the Tribunal would have erred in reasoning as it did. At 0[35], the Tribunal held that "the introduction of a stronger 'fit and proper' test was primarily for roles that can significantly influence the outcome of boxing contests with a particular concern with respect to pr9motors, managers and match-makers and any connections they may have with organised crime." Yet this case had nothing to do with connections with organised crime. To state a particular perceived purpose of a provision, and then to construe the provision by reference to that purpose at the risk of overlooking other purposes, is an error which the High Court has stressed in a number of cases: see, eg, Minister for Employment v Gribbles Radiology (2005) 222 CLR 194 at [21]; Pa/go Holdings v Gowans (2005) 221 CLR 249 at [28]; Stevens v Kabushiki Kaisha Sony (2005) 224 CLR 193 at [34]. The circumstances in which consideration may be given to a Second Reading Speech in statutory construction are set out in s 34 of the Interpretation Act, and do not extend to limiting the application of a "fit and proper person" test in the manner which the Tribunal did in the final sentence of 0[36].
8. The respondent's submissions did not engage with the Authority's argument that the matters which the Tribunal extracted from the Second Reading Speech concerned a separate division of the CS Act. The respondent attempted to explain the Tribunal's reasoning by stating that the Tribunal was simply endeavouring to provide the basis for the differing levels of 'tests' for different roles within the combat sports industry.
9. The Authority in reply submitted that even if the above was accepted it does not assist on the question at hand. That is because, the Authority contended, it is an error of law to state a particular perceived purpose of a provision, and then to construe a different provision by reference to that purpose.
10. We agree with the submissions of the Authority. The Tribunal appears to have considered an irrelevant matter being that of the Secondary Reading Speech which concerned a separate division of the CS Act. That Secondary Reading Speech was irrelevant because it did not address the requirement in s 13(1)(b) and s 13(2) of the CS Act. This does involve an error of law.
11. Accordingly, we uphold this ground of appeal.

Conclusion

1. For the forgoing reasons the Appeal Panel has decided to uphold the appeal and set aside the Tribunal's Decision.
2. In such circumstances the parties before us agreed that the appropriate course is for the Appeal Panel to reconsider the matter for itself and to decide whether or not the respondent's application to be registered as a combatant in the amateur boxing registration class under the CS Act should be granted.
3. It was pointed out that there was no cross-examination or oral evidence below and none sought to be raised on a reconsideration by the Appeal Panel and the material both parties rely upon remains the materials below which have been reproduced on appeal. We note, we also have the parties' written submissions below and transcript of the oral addresses below.
4. Accordingly, consistent with the guiding principle under s 38 of the NCAT Act, we have decided to reconsider the matter for ourselves.

Reconsideration

1. We accept that a useful starting point for construing the phrase 'fit and proper person' is the remarks of Toohey and Gaudron JJ in Bond at 380 where their Honours explain: 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, 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.
2. At 388, their Honours went on to say: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
3. This suggests that in 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).
4. 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: 1. Harm minimisation in regulating the use of physical force in the combat sport in question; 2. The health and safety of combat sport contestants more broadly; and 3. Honesty and integrity in following the relevant laws and rules of the combat sport in question. 1. Whether the general community or public can have confidence that the above will occur; and 2. 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.
5. In this regard, the commencing point must be an objective consideration of the conduct in question. In this regard there can be no dispute that the violence and the criminal conduct was extremely serious. The respondent physically dominated a 20-year-old female who was in a much weaker position and subjected her, knowingly and intentionally, to painful, humiliating and degrading forced acts of sexual intercourse and common assault. The seriousness of the conduct is reflected in the sentence that was imposed on the applicant. A sentence which the applicant is still serving.
6. Any consideration of this conduct must commence with the following obvious proposition - namely, the conduct is so extreme and violent as to cast a very significant pall over the character and reputation of the respondent. This is especially so as at the time of offending the applicant was a registered combatant and fully aware that physical force of any kind outside the control of a combatant sports contest was unacceptable and in certain circumstances unlawful.
7. Second, we note the violence in question was directed to a female. It therefore is worthy of the strongest condemnation. It certainly cannot be condoned or be perceived by the public or participants in the industry to be condoned by the industry. Promoting the development of the combat sport industry must include promoting a culture of respect for women and condemning violence outside the ring.
8. In our view, because of the seriousness of the conduct, it does have relevance to each of the matters referred to by us in paragraph [117] above.
9. On the other side of things, are the matters going to the respondent's good character and the evidence that the criminal conduct in question was an isolated event. We refer to the evidence summarised by the Tribunal and which we have already quoted above at [16].
10. That evidence can be put into two categories - evidence as to the respondent's conduct whilst in incarceration and his conduct since.
11. In respect of his conduct in prison, whilst still relevant to the question of his overall fitness and proprietary to hold a boxing registration, needs to be understood in the context of the relatively confined ability whilst in prison to demonstrate his reformed character. In particular, it is obvious that whilst in prison there was no opportunity for the respondent to engage with females.
12. Second, in terms of the conduct of the respondent since being released, we note that the period in question is relatively confined being 2 years. Whilst we note the opinion in some references tendered on behalf of the respondent that he is 'unlikely' to re-offend, such opinions need to be tempered by the reality that no one can predict with certainty whether this will be the case or not. It is relevant to consider whether the general community will have confidence that it will not occur or that the respondent will be a worthy participant in combat sports. In this regard, the fact that the respondent is still on parole and serving his sentence is also relevant.
13. In our view, the acts of violence in question are too extreme and the respondent's release from prison too soon to allow us to be satisfied that he is a 'fit and proper person' within the meaning of s13(1)(b) of the CS Act, By such conclusion, we do not mean to suggest that anyone convicted of serious criminal violence could not be a 'fit and proper person' to be registered under the CS Act. Each case will depend on its own circumstances.
14. However, in this case, we find ourselves unable to be satisfied that the respondent has demonstrated himself currently to be a 'fit and proper person' to be registered under the CS Act.
15. Accordingly, the decision of the Authority made on 25 October 2021 shall be affirmed.

Orders

1. The orders of the Appeal Panel are: 1. Appeal is allowed. 2. Orders 1 and 2 made by the Tribunal on 15 July 2022 in proceedings 2021/00320581 are set aside. 3. The decision of the First Appellant of 25 October 2021 to refuse the Respondent's application to register the Respondent as a combatant in the Amateur Boxing registration class is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2022