Murray v Combat Sports Authority of NSW & Commissioner of Police, NSW Police Force

Original decision

1. No detailed reasons were given by the Authority about what the extent and nature of Mr Murray's criminal history was or why the Authority came to the decision that Mr Murray was not a 'fit and proper person' on that basis. The Schedule to the refusal letter merely cites "[Mr Murray's] criminal history" as the reason that the Authority was not satisfied that Mr Murray is a 'fit and proper person'.
2. I note that section 95(2) of the Combat Sports Act 2013 provides that the Authority is not required to give any reasons if the giving of reasons would disclose the existence or content of any criminal intelligence report or other criminal information provided by the Police. It was therefore the case that Mr Murray did not find out the content of the 'criminal information disclosure' when he received the reasons from the Authority for the decision to refuse to renew his registration.
3. The Authority sought and received a 'criminal information disclosure' as defined in section 78(7) of the Combat Sports Act 2013 when it requested and received information disclosed by the Commissioner of Police ('Commissioner') under section 94(1) of the Combat Sports Act 2013. The Commissioner may disclose a criminal intelligence report or other criminal information about an applicant for registration as a combatant under that provision to the Authority.
4. The Authority may then consider that criminal information in deciding whether or not to grant an application for registration as a combatant, including any information about spent convictions and also information about offences despite anything to the contrary in section 579 of the Crimes Act 1900 (refer to section 94(2) of the Combat Sports Act 2013). Section 579 of the Crimes Act 1900 provides that certain convictions or findings that an offence has been proved which were dealt with by recognizance, and where 15 years has since elapsed, are to be disregarded and not required to be disclosed in response to questions in legal proceedings (refer to that section of the Crimes Act for the specific detail).
5. In the administrative review proceedings before this Tribunal, the Commissioner gave approval under section 78(1)(a) of the Combat Sports Act 2013 for the Tribunal to disclose the existence and content of criminal intelligence reports and criminal information disclosed in Tab 2 of the section 58 bundle of documents filed on 6 June 2023 by the Combat Sports Authority. The Commissioner also provided approval under section 78(1)(b) Combat Sports Act 2013 for the Tribunal to receive evidence and hear argument in the presence of Mr Murray, his representative and any other interested party and the public in respect of the documents in Tab 2.
6. The criminal information in Tab 2 consisted of:

• A 'criminal history - bail report', 'criminal infringement notice history', a 'breach bail alternatives report' and a 'list of breach of bail charges' for Mr Robert Murray from the NSW Police Force computerised records
• Two Police fact sheets - for the 2018 and 2022 offences
• An intelligence report for Mr Robert Murray

1. This material will be addressed later in these reasons for decision.

No internal review

1. I note that decisions of the Authority that are made on the ground of a 'criminal information disclosure' do not give rise to a right of internal review: section 78(6) of the Combat Sports Act 2013. Mr Murray was therefore entitled to lodge an application for administrative review directly with the Tribunal: section 55(3) of the Administrative Decisions Review Act 1997.

Extension of time for application for review and joinder of the Commissioner

1. Mr Murray lodged an application for administrative review with the Tribunal Registry on 28 April 2023, which was out of time.
2. At a directions hearing on 30 May 2023 the Tribunal granted an extension of time for the making of the application for review to 24 April 2023.
3. I made a further order at the hearing extending the time for Mr Murray to lodge the application for review to 28 April 2023 as this was the date on which the application was in fact lodged. The Respondent made no objection to the making of that order.
4. The Commissioner of Police was joined as a respondent because the original decision made by the Authority was made on the basis of a 'criminal information disclosure' about Mr Murray: refer to section 78(4)(a) of the Combat Sports Act 2013. That joinder decision was made at a directions hearing on 30 May 2023.

Relevant legislation

1. The Combat Sports Act 2013 is the relevant piece of legislation. The objects of the Combat Sports Act 2013 are set out in section 3: 3 Objects of Act The objects of this Act are 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 minimisation basis, (d) to promote the development of the combat sport industry.
2. Section 9 of the Combat Sports Act 2013 prohibits a person from engaging in a combat sport contest unless the person has the appropriate registration.
3. The Authority has determined the various registration classes of combatants according to the style of combat sport and there are separate professional and amateur classes for each style (refer to section 10(2) of the of the Combat Sports Act 2013 and the Note at the start of Part 3 of the Combat Sports Regulation 2014). One such registration class is amateur boxing.
4. As part of the application process for a specified registration class or classes, an applicant must provide a certificate of fitness to engage in combat sport and a current serological clearance to the effect that the person would not be capable of transmitting HIV, Hepatitis B or Hepatitis C: refer to sections 7, 11(2) of the Combat Sports Act 2013 and clause 63 of the Combat Sports Regulation 2014. There are also other requirements such as an age requirement that must be met for professional registration: refer to section 12 of the Combat Sports Act 2013.
5. Section 13(1)(b) and section 13(2)(a) are key sections for the purposes of this administrative review. The section reads (with emphasis added): 13 Determination of application (1) The Authority may register an applicant as a combatant of a specified registration class if the Authority is satisfied of the following: (a) that the application is made in accordance with this Division and any application fee has been paid, (b) that the applicant is a fit and proper person to be registered as a combatant of that class, (c) that the applicant is not less than the minimum age prescribed by this Act, the regulations or the rules as the minimum age required for registration as a combatant of that class, (d) if the applicant is subject to a registration pre-condition, that the applicant has complied with the registration pre-condition, (e) as to any other matter prescribed by the regulations for the purposes of this subsection. (2) The Authority must refuse to register an applicant as a combatant of a specified registration class if: (a) it is not satisfied of the matters specified in subsection (1), or (b) the applicant is a controlled member of a declared organisation under the Crimes (Criminal Organisations Control) Act 2012, or Note - Controlled members are prohibited from applying for registration - see section 27 of the Crimes (Criminal Organisations Control) Act 2012. (c) 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 (d) in any other circumstances prescribed by the regulations for the purposes of this section. (3) Subsection (2) does not limit the grounds on which the Authority may refuse to register an applicant as a combatant of a specified registration class. (4) The Authority is not required to determine an application for registration if the Authority is not satisfied as to the identity of the applicant for registration or if the applicant fails, without reasonable excuse, to provide any relevant information requested by the Authority. (5) (Repealed)
6. In Mr Murray's case, the Authority decided that it was not satisfied that Mr Murray was a 'fit and proper person' to be registered as a combatant of the amateur boxing registration class and so refused to renew his registration.

Administrative review jurisdiction

1. The Tribunal's jurisdiction to review a decision of the Authority to refuse to register an applicant as a combatant of a specified registration class is derived from section 77(1)(b) of the Combat Sports Act 2013. That jurisdiction is exercised under the Administrative Decisions Review Act 1997: section 77(1) of the Combat Sports Act 2013.
2. When conducting an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: section 63 of the Administrative Decisions Review Act 1997.
3. The Tribunal is not confined to only considering the material that was before the Authority at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

The hearing

1. The Authority argued that the Applicant had a criminal history of possession and supply of drugs and a history of drug abuse. Mr Murray did not dispute the evidence about his criminal convictions and the facts on which he was sentenced for those matters.

Respondent's case - Information from 'criminal information disclosure'

2018 drug possession charges

1. The 'criminal information disclosure' material shows that on 18 September 2018 the Local Court sentenced Mr Murray to a section 10 bond for the period of 18 months for the offence of "possess prohibited drug" (3 counts).
2. The Police Facts Sheet for those charges states that on 3 August 2018 Police were conducting a drug detection operation using a drug detection dog. They entered a hotel and the dog made an indication for the presence of drugs underneath a large chair about one metre from where Mr Murray was seated with another man. Police lifted the chair and found two resealable bags containing 7.97g of cannabis, one resealable bag containing 1.82 g of cocaine and one resealable bag containing 0.75g of 3,4-[methylenedioxyamphetamine] (MDMA).
3. Mr Murray was cautioned and is recorded in the Facts Sheet as denying knowledge of the bags. However, Police then viewed the CCTV footage at the hotel which showed Mr Murray putting four resealable bags under the chair and then moving chairs shortly before Police entered the room. When Mr Murray was informed by Police that they had observed his actions on the CCTV footage, he made admissions and co-operated with Police.

2018 Shoplifting infringement notice

1. Police issued Mr Murray with a criminal infringement notice on 28 September 2018 for "shoplifting - T2".

2022 drug supply and proceeds of crime charges

1. On 9 August 2022, the Local Court sentenced Mr Murray to an intensive correction order for 15 months from 9 August 2022 to 8 November 2023 for the following offences:

• "supply prohibited drug > indictable and < commercial quantity - T1"; and
• "deal with property proceeds of crime < $100000 - T2".

1. The court ordered that Mr Murray report to Community Corrections within 7 days and participate in drug rehabilitation programs as directed. The Court ordered that Mr Murray be supervised by Community Corrections for the period 9 August 2022 to 8 November 2023 and that he perform 150 hours of community service work. The money he had ($2,100 cash) was also to be forfeited.
2. The Police Facts Sheet for those charges reads that on 25 February 2022 Police were conducting "pro-active patrols" in some streets that Police believed were known for drug dealing. Police observed a car driven by Mr Murray stop and a man entered the front passenger seat. The man left the car a short time after with a package in his hand. Police spoke to the man and obtained information that a drug transaction had occurred. The man purchased $670 worth of Tetrahydrocannabinol (THC) gummies, weighing a total of 274.4g.
3. Police then stopped Mr Murray's car and conducted a search. Mr Murray initially told Police he had some cannabis in the glove box and cash in the centre console of the car from supplying cannabis to the buyer and that the cannabis in the glove box was for a friend.
4. On conducting a search Police found:

• a white envelope with a small amount of cannabis in Mr Murray's pocket
• a small amount of cannabis a clear resealable sandwich bag on the floor of the driver's seat
• $2,100 in cash in the centre console of the car
• Two vacuum-packed bags in the glove box containing cannabis and labelled with street and suburb names
• a clear resealable sandwich bag containing Tetrahydrocannabinol (THC) gummies

1. Mr Murray then directed Police to a blue bag in the back seat of the car, which contained:

• Seven bags of cannabis
• One bag of THC gummies and cannabis together
• One large clear resealable sandwich bag containing 25 small bags of THC gummies.

1. The bags were labelled with drop locations and Mr Murray assisted Police by allowing them to view his mobile phone for the locations of his previous and future drops.
2. Police alleged that the total weight of seized bags was 1,425.1g. However, the defence was successful in making representations that the weight was in fact "significantly less" and this led to an amendment of the Facts Sheet. The amended figures for the weights of the various drugs are not disclosed in the sentencing remarks of Magistrate Milledge. However, her Honour does describe the amount of drugs as "considerable".

Applicant's evidence

1. Mr Murray argued that he was a 'fit and proper person' and that the Tribunal should set aside the decision under review and substitute a decision that his registration be granted.

Offending and drug use

1. Mr Murray provided oral evidence at the hearing as well as written statements.
2. Mr Murray explained that he has been "doing all the right things" since his conviction. He said he was "trying [his] best" and putting that "all behind [him]". He said that he "totally admit[s] what [he] did was terrible". He described feeling very ashamed about his criminal record and embarrassed for participating in criminal activity.
3. Mr Murray said that he entered a plea of guilty in relation to the 2018 drug possession offences. The transcript for the 2022 offences shows he also entered a plea of guilty to those charges.
4. Mr Murray stated that his role in the 2022 drug supply offences was "just the mule" making the delivery and that he was not the owner of the drugs. He said he used to be a customer, purchasing drugs from that drug supply enterprise, and was then "poached" to become a driver. He said the reason he agreed participate in drug supply was that his visa was ending soon, and he needed money fast to pay for another visa, skills assessment, and immigration lawyer fees. He also had recently had his car written off and he needed to purchase another to get to his day job.
5. Ms Roden, for the Respondents, questioned Mr Murray about whether he knew the people behind the drug supply enterprise. He said he did not know the people personally and communicated generally through a messaging app.
6. Mr Murray said he was about to turn 30 years old. He wanted to "move forward" with his life and "not fall back into" his previous offending. In his statement he said he was not a bad person; he has a good heart and would like to put his past behind him. In the application for review Mr Murray said that the conviction was "the lowest point in [his] life" and that boxing had played an important part in "turning [his] life around" and boxing has been helping him significantly with his mental health.
7. Mr Murray explained that his intensive correction order was due to end in November 2023 and that he had completed the required 150 hours of community service. He said that after he was arrested, but before he was sentenced, he engaged in a recovery program at a private clinic, the TARA Clinic, which is designed to help people with addictions and mental health problems. He has been enrolled in this program now for over a year at his own cost.

Section 128 Certificate issued

1. I issued a section 128 Certificate over evidence given by Mr Murray about two topics. A section 128 certificate is given under section 128 of the Evidence Act 1995. Section 128 applies even though in these proceedings the Tribunal is not required to apply the rules of evidence: refer to section 38(3)(b) of the Civil and Administrative Tribunal Act 2013. What this certificate means is that the evidence given cannot be used against Mr Murray in other proceedings: refer to section 128. The evidence given by Mr Murray covered by the certificate is:
2. In response to questioning about when he last used drugs, Mr Murray said he last used drugs in 2020 or 2021 and then he said it was at least one year ago and maybe two or three years ago.
3. In response to questioning about when he was involved in drug supply, Mr Murray said he was involved in the supply of drugs over a five week period, and that he had intended to stop supplying drugs as he had a fight the next week.

Evidence from psychologist and doctors

1. Mr Murray relied on a report prepared by his psychologist, Tara Hurster, the Director of the TARA Clinic. The report is dated May 2022, and records Mr Murray as having attended four telehealth sessions from March to May 2022. Ms Hurster describes Mr Murray as having "displayed strong motivation for and benefit from the therapeutic process". This report is of limited assistance to the Tribunal as it focusses on financial and other stressors on Mr Murray at that time including about when the then current criminal proceedings would conclude and what the impact might be on his visa status. The report does not provide any information or opinion about whether Mr Murray has addressed his drug use or any mental health concerns.
2. A letter from a counsellor, Ms Maya Rutnam, dated 19 June 2023, states that Mr Murray worked with Ms Rutnam for over 12 months. She said Mr Murray "has engaged well with his therapy program and shown immense commitment and dedication to the process" and he has made "substantial improvements in his capacity to manage distress".
3. Mr Murray also relied on an unsigned GP Mental Health Plan, dated 28 March 2022, which identifies that Mr Murray presented with "low mood" and "drug (marijuana) misuse". The fact that Mr Murray has from time to time experienced mental health challenges or substance use issues is not in issue in these proceedings.
4. Mr Murray also provided a letter from a medical practitioner, dated 22 December 2022, which shows that he has a prescription for medicinal cannabis. It does not disclose what condition is being treated by this prescription.

Character references

1. Mr Murray provided a large number of character references, seven in total. The references are from friends and people Mr Murray knows through boxing training, the gym and his employment. The referees make a number of comments about Mr Murray including that he:
2. Provided support to others despite "working through his own challenges"
3. Shown "strong resolve to evolve his lifestyle, with better decision making and a sincere dedication to a health and fitness lifestyle"
4. Is kind, reliable and polite
5. Of strong character
6. A dedicated boxer
7. A good employee
8. One of the references makes reference to Mr Murray having engaged in a criminal offence, but the referee states "I am not aware of the full details of the offence" but providing no further detail. The referee adds that he believes Mr Murray is very ashamed of his actions.

Recovery programs

1. Ms Roden asked Mr Murray what he had done since 2018 to address his drug use issues. Mr Murray said he participated in recovery program of five or six group sessions called SMART Recovery that was government-funded and free to attend. He said he could not recall when he stopped attending these sessions. He stopped attending because he believed he had recovered and was no longer using and believed he was on the "right path". He said that in 2019 he thought he was rehabilitated but agreed that he fell back into using drugs following the death of his grandfather, which occurred in late 2021 or early 2022.
2. Mr Murray chose not to go back to SMART Recovery. Rather, he registered at the TARA Clinic, which has a private program. He also obtained a mental health plan from his general practitioner.
3. Mr Murray said that over an initial six month period he attended group sessions through the TARA Clinic every two weeks and also a one-on-one session once per week. This then decreased to attending a group session to once per month and individual session once per fortnight. He said he also had work to do at home from the sessions in between those times.
4. Mr Murray said that the sessions were aimed at addressing his drug problem and submitted that his attendance proved that he was "trying to better [himself]". He said that his participation is on hold due to financial constraints but that he continues to engage with his psychologist at that clinic. He reported that his last individual session was the month prior to the hearing, and he is trying to organise his next session.
5. Mr Murray said he was working full-time and was working 40 hours per week when he was arrested. He said he was now doing at least 50 hours per week and gets paid more, including overtime. He is training every day and he also goes running.
6. In closing arguments, Mr Murray told the Tribunal that he was turning 30 years old and "ready to be a mature adult" and that he had been taking the right steps to better himself. He said he does not drink and takes no other drugs. He engaged with the TARA Clinic at his own initiative shortly after his arrest in 2022. He said he would happily undergo drug testing going forward. He regularly attends the gym and has employment as a labour hire worker on a large infrastructure project. He has recently separated from his partner. Mr Murray stated that he is trying to give back to the community and be a "better person".

Understanding of the Combatant Code of Conduct and policies

1. Under cross-examination Mr Murray acknowledged that he had read the online form for registration as a combatant when he applied in 2019. He said that when he ticked that he had read the Combatant Code of Conduct, his reading of that document "would have been quick" and that he was "not really good at reading". He added that he would have read it "to the best of [his] ability".
2. Mr Murray did not recall reading any of the policies on the Combat Sports Authority's website, despite ticking yes on the online registration form to having read "relevant CSA policies published on the CSA website". He said he did not think he would have "gone out of [his] way" to read the policies on a website when completing the form. Mr Murray accepted that by ticking the box indicating that the information provided in the online form was true and correct, this was in fact not the case as he had ticked that he had read policies that he had not in fact read.
3. Mr Murray did not recall receiving an email from the Authority about conditions on his registration or the Combatant Code of Conduct, despite evidence filed by the Respondent that this information had been sent to Mr Murray by email and to all registered combatants on 17 August 2020, with links to the Conditions of Registration and Combatant Code of Conduct. Mr Murray said he did not recall receiving or opening and reading this email, but he accepted it had in fact been sent to him.
4. Mr Murray said he was aware of conditions on his registration now, but that he had not been aware of all the conditions on his registration when he first registered. When he first registered he was aware that he needed to do a blood test and fitness test but "that's about it".
5. Mr Murray said he was now aware that he was not to "get into trouble" and that he has to "keep his nose clean" while he was registered for combat sports.
6. Under questioning, Mr Murray said he had read the Combatant Code of Conduct "to the best of [his] ability" when he first registered but could not recall the content now as it had "been a few years". He agreed that he had read the anti-doping policy recently but had not read the anti-doping policy before as "[he] did not believe he needed to".
7. Mr Murray told the Tribunal that he had completed school, although he had hearing impairment until the age of three years old which did impact on his early reading. He explained that reading documents or policies to the best of his ability means that he has some difficulty with long and complex words.

Possibility of a condition on registration

1. I asked Ms Roden to obtain instructions about whether the Respondent would be agreeable to Mr Murray's registration if drug testing was a condition of registration, given Mr Murray had indicated he was content to submit to such testing. Ms Roden sought instructions and confirmed that the Authority continued to oppose Mr Murray's registration. She said there would be practical difficulties with any condition that Mr Murray submit to drug testing as the Authority's role is as an overarching body and the Authority does not take any day to day role in the practical aspects of combat sport contests. Rather, it issues permits to hold combat sports contests. For amateur contests an amateur body has to have approved the contest. She said that drug testing was not standard practice generally and it would be challenging for the Authority to ensure it could monitor compliance with such a condition. It would also be costly if it had to be rolled out at all contests.

'Fit and proper person'

1. Ms Roden pointed out that that Mr Murray's most recent offending had occurred while he had been registered and that at the time of the hearing Mr Murray continued to serve his sentence. She also submitted that Mr Murray had a history of unresolved substance use.

Objects of the Combat Sports Act 2013

1. Ms Roden explained that one object of the Combat Sports Act 2013 is to promote the integrity of combat sports contests (refer to section 3(b)). She submitted that this was not just about ensuring that there was no bribery or corruption involved in contests, but also that contests complied with anti-doping policies. Under the Combat Sports Authority Anti-Doping Policy doping is defined as anti-doping rule violations as set out in the World Anti-Doping Code issued by the World Anti-Doping Agency. The World Anti-Doping Code explains that anti-doping programs "seek to maintain the integrity of sport in terms of respect for rules, other competitors, fair competition, a level playing field, and the value of clean sport to the world."
2. Ms Roden referred to the object in section 3(d) the Combat Sports Act 2013, which is to promote the development of the combat sports industry. She argued this should be broadly construed, not just about the growth and promotion of the industry, but also advancement of the reputation of the industry in terms of its integrity and its ability to attract non-competitors and spectators.
3. Ms Roden argued that the integrity of contests required strong condemnation of any conduct that amounts to doping. She said that the sport was previously associated with a criminal element and the legislation aimed at removing any such elements from the industry. She said this was particularly so with combatants as they were the "public face" of combat sports.

Rehabilitation

1. Ms Roden described Mr Murray's offending as recent and a serious violation of anti-doping policy. She also argued there was an absence of compelling evidence about Mr Murray's rehabilitation.
2. Ms Roden referred to the transcript of the sentencing remarks of Magistrate Milledge in respect of the 2022 offences. In that case Mr Murray's legal representative told the Local Court that Mr Murray had "a drug problem". Her Honour Magistrate Milledge said Mr Murray had not addressed that problem following his 2018 charges. The magistrate described the type of offence as a "dial-a-dealer" and referred to Mr Murray's involvement in "a very organised operation". She described the offending as "very serious - very serious matters" and the amount of drugs Mr Murray had for the purposes of supply as "considerable". The magistrate also said that Mr Murray came "perilously close today to being sent into full-time custody".
3. Ms Roden said her clients accepted Mr Murray's "good intentions" and that he had engaged with the TARA Clinic program, within what he was able to afford financially. She did point out that the SMART Recovery sessions are free, but that Mr Murray did not return to that program.
4. Ms Roden submitted that there was insufficient evidence for the Tribunal to find that Mr Murray was rehabilitated. Ms Roden also noted that Mr Murray is in casual employment and she suggested there was no evidence that Mr Murray has long term employment.
5. Ms Roden referred to Mr Murray's evidence that after attending the SMART Recovery sessions he believed himself to have recovered from drug addiction in 2019. Yet he recommenced using drugs in late 2021 or early 2022 after his grandfather passed away. She submitted that Mr Murray did not address his drug use until after his arrest in 2022.

Anti-doping in combat sports

1. Ms Roden took the Tribunal through the anti-doping regime that applies to registered combatants. None of this was in issue.
2. The Regulations impose a condition on the registration of combatants that they abide by the Combatants Code of Conduct: section 14(3) of the Combat Sports Act 2013 and clause 7(i) of the Combat Sports Regulation 2014. The Combatants Code of Conduct provides that combatants must: "Comply with the laws and regulations that govern the combat sport and martial art form including: a. Alcohol, drugs and anti-doping laws and regulations … f. Rules promulgated by peak or sanctioning bodies for my sport or martial art form."
3. The Authority's Anti-Doping Policy applies to combatants and defines doping as anti-doping rule violations under the World Anti-Doping Code.
4. As referred to earlier, the World Anti-Doping Code (2021) says: "Anti-doping programs seek to maintain the integrity of sport in terms of respect for rules, other competitors, fair competition, a level playing field, and the value of clean sport to the world."
5. The World Anti-Doping Agency has issued a prohibited list of substances and specified whether these substances are prohibited in-competition or prohibited at all times.
6. A recent addendum to the 2023 Prohibited List reflects the current approach of the World Anti-Doping Agency to the status of THC, with its expert advisory group concluding that there is "compelling medical evidence" that the use of THC is "a risk for health, mainly neurological, that has a significant impact on the health of young individuals, a cohort which is overrepresented in Athletes" and so should remain included on the Prohibited List.
7. The Authority did not suggest that Mr Murray violated the World Anti-Doping Code by possessing cocaine, MDMA or cannabis/THCs in-competition (refer to Article 2.6 of the World Anti-Doping Code). Rather, the Authority submitted that Mr Murray breached Article 2.7 of the World Anti-Doping Code, which reads: 2.7 Trafficking or Attempted Trafficking in and Prohibited Substance…by and Athlete or Other Person
8. The relevant part of the definition of 'trafficking' in the Code (at page 177) reads: "[s]elling, giving, transporting, sending, delivering or distributing (or possessing for any such purpose) a Prohibited Substance…by an Athlete…to any third party…". It is not in dispute that the 2022 offences contravene that provision. It does not matter whether this occurred in or out of competition and Mr Murray does not assert that the supply of drugs the subject of those charges was for any "genuine or legal therapeutic purpose or other acceptable justification" and so the conduct leading to the 2022 charges would be a breach of Article 2.7 of the World Anti-Doping Code.
9. The sanctions for a breach of Article 2.7 of the Code include being barred from any competition for a minimum of four years and up to a lifetime (refer to Articles 10.3.3 and 10.14). Ms Roden submitted that this is a serious sanction and that it is the longest for all of the contraventions of the World Anti-Doping Code.
10. Ms Roden said that Boxing Australia is the primary approved body responsible for organising amateur boxing contests. She said that Boxing Australia's anti-doping policy is identical to the World Anti-Doping Code as clause 2.04 of Schedule 1 of the Sport Integrity Australia Regulations 2020 (Cth) requires all peak bodies to adopt the World Anti-Doping Code. Again, these matters are not in dispute.
11. In summary, possession and use of MDMA, cannabis, THC or cocaine is a violation of the World Anti-Doping Code if in-competition but the supply of these substances at any time is a violation of the World Anti-Doping Code and therefore also the rules of every peak body, as such bodies adopted the World Anti-Doping Code.

Disciplinary action under the Combat Sports Act 2013

1. Ms Roden referred to section 30(2) of the Combat Sports Act 2013 and clause 21(d) of the Combat Sports Regulation 2014, which together provide that disciplinary action may be taken against a registered combatant who has "been convicted of an offence relating to using, trafficking or supplying drugs during the period of the person's registration".

Further discretion following finding of fitness and propriety

1. Ms Roden submitted that if the Tribunal is satisfied Mr Murray is a 'fit and proper person', the Tribunal retains a discretion as to whether to make a decision in substitution for that of the Authority that Mr Murray be registered as a combatant of a specified registration class, under section 13(1) of the Combat Sports Act 2013, indicated by the word "may" at the start of the subsection. Ms Roden argued that the Tribunal should not, in the circumstances, exercise this discretion to grant Mr Murray registration as a combatant. She also argued that section 13(3) of the Combat Sports Act 2013 allows the Tribunal to consider other grounds for the refusal of the registration, beyond those set out in section 13(2).

Findings of fact

1. There is no dispute between the parties about Mr Murray's criminal history. I note that Mr Murray entered a plea of guilty to the 2018 drug possession charges and also to the 2022 charges. In his evidence before the Tribunal he did not seek to challenge the account given by Police in the material before me about the possession and supply of drugs.
2. I find that on 3 August 2018 Mr Murray was in possession of 7.97g of cannabis, 1.82g of cocaine and 0.75g of 3,4-[methylenedioxyamphetamine] (MDMA).
3. I accept Mr Murray's evidence that he was initially a customer and then later became a driver for a dial-a-dealer drug supply enterprise.
4. I find that on 25 February 2022 Mr Murray was involved in the supply of cannabis and Tetrahydrocannabinol (THC) gummies. I am unable to make a finding about the precise weight of the drugs given that the Facts Sheet was amended, and I do not have the information about the correct total weight of the drugs but note that it is likely less than 1,425.1g. I accept the observation made by Magistrate Milledge on sentencing Mr Murray that the amount of drugs was considerable.
5. I agree with the sentencing remarks of Magistrate Milledge that the 2022 offences are very serious. Supplying drugs is a serious crime and one which has victims, particularly those who purchase and become addicted to those substances. The seriousness of the offending can be seen from the sentence imposed. An intensive corrections order is an alternative to full-time custody and is still a custodial sentencing option despite the fact it is served in the community: refer to Division 2 of the Crimes (Sentencing Procedure) Act 1999.
6. I find that Mr Murray's offending conduct and ultimate convictions on 9 August 2022 occurred during the period of his registration as a combatant in the amateur boxing registration class, namely in the period from 13 November 2019 to 13 November 2022.
7. I find that the supply of drugs by Mr Murray is a breach of the conditions of his registration as a condition on the registration of combatants is that they abide by the Combatants Code of Conduct: section 14(3) of the Combat Sports Act 2013 and clause 7(i) of the Combat Sports Regulation 2014. The Combatant's Code of Conduct refers to the fact that combatants are to comply with "[a]lcohol, drugs and anti-doping laws and regulations" and "[r]ules promulgated by peak or sanctioning bodies…". This issue is further discussed under the subheading 'Object: to promote the integrity of combat sport contests: section 3(b)' below.
8. I accept that Mr Murray has taken action to address his drug use issues. Since 2018 he has participated in five or six group SMART Recovery sessions. I find that Mr Murray fell back into using drugs in late 2021 or early 2022 and following that took further action to address his substance use problem by engaging with the TARA Clinic from March 2022 and attending group and individual sessions. Mr Murray has also obtained a mental health plan from his general practitioner.
9. I am not persuaded by the Respondents argument that Mr Murray cannot now be considered to be rehabilitated because he started using drugs again following a period in 2019 when he considered himself to be rehabilitated. No expert evidence has been adduced about drug addiction and rehabilitation and whether or not it is common for users to relapse into drug use or the contributing factors or ways of assessing successful rehabilitation. I also do not have clear evidence about the effectiveness of the programs at the TARA Clinic in addressing Mr Murray's drug use or mental health concerns, other than general statements such as Mr Murray has "displayed strong motivation for and benefit from the therapeutic process" and that he "has engaged well with his therapy program and shown immense commitment and dedication to the process" and "substantial improvements in his capacity to manage distress". I have been unable to assess the degree to which Mr Murray is now rehabilitated.
10. I found Mr Murray to be forthcoming and open witness and I accept that he wishes to put his offending and drug use behind him and start a new and positive chapter in his life.

Application of the law - 'fit and proper person'

1. The specific question before me is not whether Mr Murray breached the Combatants Code of Conduct, the Authority's Anti-Doping Policy, World Anti-Doping Code or the Boxing Australia's anti-doping policy. Rather, what I must determine is whether I am satisfied that Mr Murray is a 'fit and proper person' to be registered as a combatant of the amateur boxing registration class (section 13(1)(b) of the Combat Sports Act 2013).
2. Mr Murray said boxing has greatly assisted him with his mental health. However, any personal benefit Mr Murray experiences from competing in amateur boxing is not a relevant consideration under the law: refer to Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387 at [84].
3. The High Court of Australia has set out how courts and tribunals should interpret the meaning of the phrase 'fit and proper person'. In Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 at [36] the Court held that the meaning of that phrase should be drawn "its context, from the activities in which the person is or will be engaged and the ends to be served by those activities" and "cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities". In certain contexts, character and reputation might be enough to lead to a finding that the person is not fit and proper to engage in the relevant activities.
4. Turning to the meaning of 'fit and proper person' in section 13(1)(b) of the Combat Sports Act 2013, I am to prefer the construction of the provision that promotes the purpose or object underlying the Combat Sports Act 2013 over a construction that would not promote that purpose or object: refer to section 33 of the Interpretation Act 1987.
5. The objects of the Combat Sports Act 2013 are expressly set out in section 3. The objects "to promote the integrity of combat sport contests" and "to promote the development of the combat sport industry" in section 3(b) and (d) appear most relevant to the facts of this case.
6. The Appeal Panel in Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387 found there was an error of law when the Tribunal failed to have regard to the promotion of the development of the combat sports industry when it decided whether the Respondent, Mr Fisher, was a 'fit and proper person'. In that case, the Authority refused to register Mr Fisher as a combatant in the amateur boxing registration class because of his conviction for criminal offences involving serious violence, including sexual violence, against his then girlfriend. The Authority argued that the promotion of the development of the combat sports industry was "furthered by attracting new competitors and spectators to the industry and maintaining a positive reputation for the industry" and in order to do that "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" (at [31]). The Authority argued that granting Mr Fisher registration would put the whole industry into disrepute and undermine public confidence in the industry.
7. The Appeal Panel held at [50]: 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…
8. At [51] the Appeal Panel quoted the following passage from Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 at [41]: 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 into account the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.

Character, rehabilitation and the nature of the 2022 offending

1. I have made findings about the serious nature of Mr Murray's 2022 offending. Mr Murray was involved in an organised enterprise to supply cannabis and Tetrahydrocannabinol (THC) gummies of a considerable quantity to customers. This offending occurred during the period in which he was registered as a combatant.
2. Ms Roden urged the Tribunal to conclude that Mr Murray could fall back into drug use, given that he had thought he was rehabilitated in 2019 but then returned to using drugs in late 2021 or early 2022. She argued that I could not be satisfied Mr Murray was rehabilitated or that he had changed his attitude towards and respect for the criminal law.
3. The character references provided by Mr Murray are of some assistance, but I accord them limited weight as they do not address whether the person writing the reference is aware of Mr Murrays convictions and the nature of his offending: refer to Sawires v Commissioner of Police [2010] NSWADT 4 at [53]. Only one of the referees refers to the fact that Mr Murray has committed criminal offences but then states "I am not aware of the full details of the offence" which could be taken to mean that the referee is not aware of even the type of offending, that is, that Mr Murray committed drug-related offences. None of the referees refer directly to Mr Murray's addiction to drugs, drug rehabilitation, mental health concerns or the nature of his criminal convictions. The references therefore provide little assistance in weighing up the degree to which Mr Murray has addressed these issues in his life.
4. The psychological and medical evidence is also of limited assistance. Ms Hurster, psychologist at the Tara Clinic commented that Mr Murray "displayed strong motivation for and benefit from the therapeutic process" and the counsellor, Ms Maya Rutnam, said Mr Murray "has engaged well with his therapy program and shown immense commitment and dedication to the process" and he has made "substantial improvements in his capacity to manage distress". However, there is no opinion expressed by either professional about the degree to which Mr Murray has addressed his addiction or mental health concerns, how this can be assessed and what is in place to assist Mr Murray in the future in order to prevent relapse.
5. I do accept Mr Murray's own evidence that he wishes to put this period of his life behind him and engage in a positive and healthy lifestyle.
6. Mr Murray's 2022 offending is of particular significance, and I consider it to be serious and recent. Despite accepting Mr Murray's genuine efforts to engage in rehabilitation and his clear wish to put that period of his life behind him, I am satisfied that the seriousness and recency of the 2022 offending and the weight I have given to the matters in favour of Mr Murray leads me to a finding that Mr Murray is does not, at this point in time, possess sufficient moral integrity and rectitude of character that he that he should be registered as a combatant: Sobey v Commercial and Private Agents Board (1979) 20 SASR 70.

Regulation of the combat sports industry and public policy

1. Section 14(3) of the Combat Sports Act 2013 provides a regulation-making power for conditions to be imposed on the registration of a combatant or class of combatants. The Regulations impose a condition that combatants abide by the Combatants Code of Conduct (regulation 7(i) of the Combat Sports Regulation 2014) and the Combatants Code of Conduct in turn requires that combatants comply with the laws and regulations that govern the combat sport and martial art form including anti-doping laws and regulations and rules promulgated by peak bodies. The Combat Sports Authority Anti-Doping Policy defines doping as an anti-doping rule violation of the World Anti-Doping Code.
2. There appear to be a number of public policy reasons that led the legislature to regulate the combat sports industry. Some relate to the health and safety of combatants, given the sports involve fights or other such activities (refer to the definition of 'combat sport' in section 4(1) of the Combat Sports Act 2013). For example, there is a certificate of fitness that has to be provided in order for a person to be registered as a combatant section 11(2)(c) of the Combat Sports Act 2013). Some policy reasons relate to ensuring the industry is not subject to match-fixing and doping in sport, as can be seen from the disciplinary actions that can be taken against registered combatants (section 33 of the Combat Sports Act 2013 and regulation 21(d) and (e) of the Combat Sports Regulation 2014).

Mr Murray's knowledge about the Code of Conduct and policies

1. Mr Murray appears to have lacked a full understanding about what he needed to do in order to meet the conditions of his registration by complying with the Combatant Code of Conduct, or at least he had forgotten what was required only to reacquaint himself with his obligations in the course of these proceedings. In particular, he did not have a detailed understanding of the anti-doping rules during the period of his registration.
2. I was urged by Mr Roden to conclude that I could not be satisfied Mr Murray knows, understands and respects the applicable laws, policies and rules governing combat sports. I am not persuaded that is the case. Mr Murray understands he has to 'keep his nose clean' and has now read the anti-doping policy and associated material.

Object: to promote the integrity of combat sport contests: section 3(b)

1. One of the objects of the Combat Sports Act 2013 is to promote the integrity of combat sports contests: section 3(b).
2. Both the Combatants Code of Conduct and the World Anti-Doping Code state that one purpose of anti-doping regimes is to avoid damage to the integrity of sport.
3. The interpretation of what a 'fit and proper person' is that furthers the object of promoting the integrity of combat sports contests must include consideration of whether a person has complied with a condition of their registration, that is, whether they have complied with the Combatant's Code of Conduct and in turn, the World Anti-Doping Code and if not, the nature and significance of any breach, given that these Codes are aimed at avoiding damage to the integrity of sport.
4. Mr Murray breached these requirements by engaging in the supply of drugs in 2022. The offending would amount to trafficking in prohibited substances in breach of Article 2.7 of the World Anti-Doping Code 2021 and also therefore is a breach of both the Authority's Code of Conduct for Combatants and the anti-doping rules promulgated by Boxing Australia.
5. The sanction for a breach of Article 2.7 of the World Anti-Doping Code is a minimum period of four years of being barred from participation in contests (refer to Article 10.3.3), whether or not drug supply offences occurred in or out of competition.
6. It is also notable that clause 21 of the Combat Sports Regulation 2014 identifies two particular areas of criminal conduct that give rise to disciplinary action under the Combat Sports Act 2013, when the registered person has been convicted of an offence relating to:

• Using, trafficking or supplying drugs during the period of the person's registration
• Illegal betting activity or match-fixing during the period of the person's registration

1. The sanction that can be applied under the disciplinary procedure in the Combat Sports Act 2013 is cancellation of the combatant's registration: section 33(2)(a).
2. It is therefore of significance that the drug supply offending occurred during the period in which Mr Murray was registered as a combatant.
3. I am satisfied that registration of a person as a combatant who has been relatively recently convicted of the supply of a considerable amount of cannabis and Tetrahydrocannabinol (THC) gummies during the period in which they were registered would undermine the regulatory regime that applies to the industry and the integrity of combat sports contests. The disciplinary regime particularly targets the supplying of drugs during the period of a person's registration and this type of offending is also an anti-doping rule violation under the World Anti-Doping Code.

Object: to promote the development of the combat sport industry: section 3(d)

1. I also considered the interpretation of 'fit and proper person' given the statutory object of promoting the development of the industry: refer to section 3(d) of the Combat Sports Act 2013.
2. One of the public policy purposes which drives the regulation of the combat sports industry is to control and remove drugs in sport, including supply of drugs by athletes irrespective of whether this occurs outside of competition.
3. Another aspect is the removal of criminal elements from the industry. I agree with the comments of the Tribunal in Tukel v Combat Sports Authority [2023] NSWCATAD 180 at [108] that "the prevention of the involvement of criminal elements in the combat sports industry is a key focus of the Combat Sports Act."
4. Drug dealing cannot be condoned or seen to be condoned by the Authority or any peak body. Part of promoting the development of the industry includes promoting a culture that upholds anti-doping rules and policies, including where these rules and policies extend beyond conduct occurring at contests.
5. To interpret 'fit and proper person' to allow registration of a combatant who has recent convictions for the offences committed in the present case would undermine public confidence in the combat sports industry, the importance of anti-doping programs in combat sports and the importance of promoting a culture that is committed to clean sport and compliance with applicable laws, rules and codes that apply to the industry. This in turn would impact on the reputation of the combat sports industry and whether new competitors or spectators would be attracted to industry.

Conclusion

1. For the above reasons I cannot be satisfied that Mr Murray is a 'fit and proper person' to be registered as a combatant of the amateur boxing registration class.
2. I therefore must affirm the decision of the Authority to refuse to grant Mr Murray's application for registration.

ORDERS

1. The decision of the Combat Sports Authority of NSW to refuse to register Mr Murray as a combatant of 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: 16 January 2024