Wakefield Park Motorsport Pty Ltd v Office of Sport - [2021] NSWCATAD 342 - NSWCATAD 2021 case summary — Zoe

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Wakefield Park Motorsport Pty Ltd v Office of Sport

[2021] NSWCATAD 342

NCAT Administrative and Equal Opportunity|2021-08-05

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NCAT Administrative and Equal Opportunity

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2021-08-05

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Judgment (34 paragraphs)

[1]

Solicitors: Marshalls Dent Wilmoth (Applicant) Office of Sport (Respondent) File Number(s): 2020/00262241

[2]

Introduction

Wakefield Park Motorsport Pty Ltd operates the motor vehicle racing ground known as Wakefield Park. Before motorsport events can take place at Wakefield Park, the Minister for Sport must issue a licence for the racing ground. In 2020, Wakefield Park Motorsport was granted such a licence subject to (amongst others) the following conditions: 1. Condition 36 which provides as follows: Condition 36(a) - Motor vehicle race meetings held under a permit issued by Confederation of Australian Motor Sport Ltd - trading as Motorsport Australia must be conducted in accordance with the conditions, rules and regulations of Confederation of Australian Motor Sport Ltd - trading as Motorsport Australia. Condition 36(b) - Motor vehicle race meetings held under a permit issued by Motorcycling NSW Ltd must be conducted in accordance with the conditions, rules and regulations of Motorcycling NSW Ltd. Condition 36(c) - Motor vehicle race meetings not held in accordance with Condition No 36(a) or (b) must be conducted to the safety and officiating standards, and in accordance with the conditions, rules and regulations, of the controlling/sanctioning organisations for the sport. 1. Condition 37 which provides as follows: The licensee must ensure that no person under 16 years of age is a competitor, participant, mechanic or member of the crew of a vehicle at a meeting for motor vehicle racing held at the ground unless the race is held in accordance with Condition no 36(a) or (b).

[4]

Minister for Sport

The Minister for Sport can issue motor vehicle racing ground licences under the Motor Vehicle Sports (Public Safety) Act ('the Act') to permit an operator to hold meetings for motor vehicle racing on a motor vehicle racing ground.
Section 6 of the Act provides that a licence shall be subject to: 1. such conditions as may be prescribed, and 2. such other conditions, not inconsistent with the Act or regulations, as may be specified by the Minister in the licence or notified under section 7.
Section 7(2)(a) of the Act expressly permits the Minister to suspend, vary or cancel a motor vehicle racing ground licence where the Minister is satisfied that 'proper and adequate precautions have not been taken or have ceased to be taken at the motor vehicle racing ground for the safety of the public or competitors or persons in proximity to the ground.'
The Minister's condition making power in s6(b) of the Motor Vehicle Sports (Public Safety) Act is only limited to the extent that any condition cannot be inconsistent with the Act or the Motor Vehicle Sport (Public Safety) Regulation. I accept that such an interpretation of the Minister's power is consistent with s32(1) of the Interpretation Act 1987 which provides that 'an instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.'
Nothing in the Motor Vehicle Sports (Public Safety) Act or the Motor Vehicle Sports (Public Safety) Regulation provides: 1. a right to an individual under 16 years of age to participate as a competitor at a meeting for motor vehicle racing; or 2. imposes an obligation on the Minister to allow individuals under 16 years of age to participate as a competitor at a meeting for motor vehicle racing; or 3. requires conditions imposed on one licensee to be imposed on another licensee.
Contrary to the position put forward by Wakefield Park Motorsports, I am not satisfied that s7(2)(a) of the Motor Vehicle Sports (Public Safety) Act constrains the Minister's power under s6(b). Section 7(2)(a) is concerned with the Minister's powers after a licence has been issued once the requisite condition-precedents have been met. Section 6(b) however is concerned with the Minister's powers before a licence has been issued or as a licence is being issued.

[6]

Sanctioning bodies

Relevantly to this application, a sanctioning body is an organisation established to develop rules and standards for motor vehicle sport. Sanctioning bodies are not specifically regulated under the Motor Vehicle Sports (Public Safety) Act and include: 1. AASA (Australian Auto-Sport Alliance Pty Ltd); 2. FIA (the Fédération Internationale de l'Automobile, a non-profit making world organisation with its headquarters in Paris); and 3. Motorsport Australia (previously the Confederation of Australian Motor Sport or CAMS).
Functions performed by a sanctioning body include licensing competitors, issuing permits for events, controlling the conduct of events and appointing officials, as well as providing status to events through their national and international affiliations. For each race meeting conducted at a racing ground, sanctioning bodies, which are largely self-regulating, issue their own permits to the race promoter (who may also be the racing ground operator).
There is no legislation that recognises any organisation as a sanctioning body. There is no permit application, nor is there a legislative or regulatory framework for a sanctioning body.
Whilst sanctioning bodies are not regulated under the Motor Vehicle Sports (Public Safety) Act, Motorsport Australia is referred to (under its previous name, the Confederation of Australian Motor Sport Ltd) in cl 27 of the Motor Vehicle Sports (Public Safety) Regulation which provides as follows: 27 Advisory committees (1) For the purposes of section 16 (2) (a) of the Act, the following organisations are prescribed: (a) Australian National Drag Racing Association Ltd (b) Confederation of Australian Motor Sport Ltd (c) Karting (NSW) Incorporated (d) Motorcycling NSW Ltd, (e) National Association of Speedway Racing Pty Ltd. (2) The members of the organisations referred to in subclause (1) are to be nominated in writing by the organisation on the request of the Minister, in such manner and number as is specified in that request.
Subsections 16(1) and 16(2) of the Act provide as follows: 16 Advisory committees (1) The Minister may from time to time establish one or more advisory committees to undertake the investigation of, and to inform and advise the Minister concerning, any matter relating to motor vehicle sports. (2) An advisory committee established under this section shall consist of: (a) such members, nominated in accordance with the regulations, of one or more prescribed organisations, being organisations having among their objects the promotion of a motor vehicle sport, (b) such officers or temporary employees of the Department of Sport and Recreation, and (c) such other persons, if any, as the Minister may appoint.
In the past, when considering an application for a licence to hold a motor vehicle meeting on a particular racing ground, the policy of the NSW Government Office of Sport was to request advice on the suitability of the racing ground from the NSW Police Force and/or the relevant sanctioning bodies named in cl 27 of the Motor Vehicle Sports (Public Safety) Regulation ('the Regulation').
The NSW Police Force has not offered any such advice since 2019. Instead, the advice is generally provided in the form of a track 'licence' or inspection report issues by the relevant sanctioning body. The Minister for Sport has not determined or approved any criteria on which the advice must be based, or the form in which it must be submitted. Under current policy, licences cannot be issued without suitable advice being provided by a relevant recognised sanctioning body.
Prescribed conditions set out in Schedule 1 of the Regulation are imposed on each licence pursuant to s6(a) of the Act and additional non-prescribed conditions are imposed on each licence pursuant to s6(b) of the Act.
The Office of Sport imposes more restrictive conditions on licences where a racing meeting is not held under a permit granted by one of the sanctioning bodies named in cl 27 of the Regulation. This includes condition 37, which provides that persons under the age of 16 cannot compete in a motor vehicle race meeting at a licensed ground unless the race is held subject to a permit granted by the relevant sanctioning body. (see Review of the Motor Vehicle (Public Safety) Act 1985 Consultation Paper, October 2019)
According to the applicant's counsel, Dr Orow: There is no legislation that recognises any organisation as a sanctioning body. There is no permit application. There is no legislative or regulatory framework for a sanctioning body. In fact, any organisation - like if you get any international organisation if they have the financial backing, they can technically enter the Australian market and set themselves up as a sanctioning body if they have the skill, the expertise, the regulations and suchlike, and then can compete with the AASA and with Motorsport Australia. There are no rules that deals with those and this is probably one of the issues that I think the NSW Parliament is grappling with, whether those sanctioning bodies should be subject to some sort of permit framework, but that's certainly not the matter before the present tribunal. That is one of the difficulties that the present system has and if that system had a permit system and a licensing process, then both Motorsport Australia and AASA would have applied.. to become a sanctioning body. This is the gap in this whole system…There is no system that licences them to do certain things and I think probably that's the main issue between us and the Office of Sport. The Office of Sport is working within a system that has gaps in it and they pointed those gaps out to the Minister and what we're saying basically is that there are gaps. Why should Motorsport Australia get any special treatment? That's the main issue that's presently before you and that's putting it in very simple terms.
It is Dr Orow's view that the only thing distinguishing Motorsport Australia from AASA is that a previously (but no longer) constituted committee named Motorsport Australia as a prescribed organisation. This remains in regulatory form, despite the fact that there no longer exists a committee in order to choose or regulate sanctioning bodies.
Because Motorsport Australia (previously called the Confederation of Australian Motor Sports Ltd) began in the 1950s and had roles and regulations in place from this time, it was the organisation consulted to decide whether an event was safe to run. In 2003, AASA broke away from the organisation to form a separate sanctioning body.
According to Dr Orow, all a sanctioning body needs to do is to make sure they are insured and have proper skills. The insurer has a very hands-on approach and closely examines the operations of the events it sanctions.

[7]

Proposed legislative reform

In 2015, the NSW Government Office of Sport (Office of Sport) requested that the Motor Vehicle Sports (Public Safety) Regulation 2015 be amended to remove the prescribed functions of an advisory committee. The amendment did not proceed and a formal review of the Motor Vehicle Sports (Public Safety) Act 1985 was finally completed in 2020. The recommendations relating to this review, including a more formal process to recognise sanctioning bodies, are now being considered by the government.
The Office of Sport has received numerous requests from motor vehicle sport bodies seeking to be a 'recognised' sanctioning body for licensing purposes. A proposal to introduce an interim process enabling other sanctioning bodies to apply for recognition by the Office of Sport was considered but not supported by the Office of Sport in 2019, with the matter deferred until the Act's amendment.
On 12 March 2020, the then Minister for Sport, Dr Geoffrey Lee MP, accepted the following recommendations by the Office of Sport: Approve preparation of a Cabinet Submission proposing amendments to the Motor Vehicle Sports (Public Safety) Act and its associated Regulation; Endorse the automatic extension of current licences for 12 months to allow time for the reforms to be agreed by Cabinet, introduced into the NSW Parliament and the administrative arrangements in the Office of Sport to be developed and implemented; and Agree that until the regulatory framework is implemented: a. Any new applications for licences for motor vehicle racing grounds to be sanctioned by any bodies not currently listed in the Motor Vehicle (Public Safety) Regulation 2015 will be refused; b. No variation of the conditions on a licence, in particular age restrictions, will be granted.
Contained in the ministerial briefing note is the following background information: 1. NSW is the only Australian jurisdiction with statutory general regulation of motor sport..Operational challenges have been identified by both the Office of Sport and the industry over the last years, in particular relating to the role of motor sport 'sanctioning bodies.' The legislation has not been updated to reflect the changed operational environment in NSW including increased competition among organisations for representation of motor sport disciplines. 2. A review of the Motor Vehicle Sports (Public Safety) Act has been underway since mid-2019, with a particular focus on the potential role motor sport bodies could have in the regulation of motor sport in NSW. Themes of the discussions included: 1. Perception of a 'monopoly' by some motor sport bodies; 2. Variable safety standards 3. Processes for accreditation of motor sport sanctioning bodies; 4. The need for the regulatory system to cover a wider range of activities and venues; and 5. The need to maintain a volunteer workforce. 1. The need for urgent legislative reform is due in part to the risks of the current Office of Sport policy arrangements. The Office of Sport policy, which has been in place for a number of years, requires advice from a motor sport organization currently listed in the Regulation, or from the NSW Police, on the capacity for safe operation of the motor vehicle racing ground before a licence is issued. There are other motor sport organisations, which in most cases have broken away from the organisations listed in the regulation, that have repeatedly requested to be recognized as sanctioning bodies. However, as there is currently no process to apply for accreditation as a sanctioning body, the Office of Sport does not take advice from these bodies. 2. The licences for motor vehicle racing grounds whose operators are seeking to conduct events without the sanction of organisations listed in the Regulations also have specific licence conditions that restrict participation to 16 years and over. These organisations, which are not deemed to be motor sport sanctioning bodies, are permitted under Office of Sport policy to conduct events on motor sport racing grounds that have been granted a licence. Currently the Office of Sport does not place any age restrictions on participation for events run by organisations listed in the Regulations. Some organisations are currently challenging this policy, as they are of the view that it is unfair and restricts their ability to operate in NSW. In the short-term, a decision is required on the issuing of licences, or removing the age restriction, for events conducted under the sanction of organisations not currently listed in the Regulation. 3. It is recommended that the Minister agree that any new applications for licences for motor vehicle racing grounds that would be operated under the supervision of organisations not currently listed in the Regulation should be refused. 4. It is also recommended that the Minister not grant any variation on the licence conditions, in particular, around age restrictions, while the new regulatory framework is being developed…It should be noted that there are potential risks in refusing these new licences and/or condition with the age restriction policy. These include the economic and other impacts on NSW, in particular regional communities if these events, which are auspiced by non 'recognised bodies' cannot proceed..However there are also risks in changing the policy, in particular the risks to public safety if licences are issued without the necessary expertise and the risk of pre-empting the outcome of the legislative review and any final Cabinet determination.
A consultation paper prepared by the Office of Sport was distributed in October 2019 as part of the ongoing review into the Motor Vehicle Sports (Public Safety) Act 1985. According to the consultation paper, a licence is usually issued by the Office of Sport without an inspection of the ground and relies on the completeness of the application and the report by a motor sport sanctioning body for assessing the adequacy of the ground for the purpose of conducting motor racing events.
One of the questions posed in the consultation paper was whether there should be a formal accreditation process for motor sport sanctioning bodies, to enable them to provide advice to the Office of Sport on whether a ground should be licensed and to ensure that race meetings are conducted safely.
A discussion paper was subsequently issued by the Office of Sport as part of the NSW Government's review of the Motor Vehicle Sports (Public Safety) Act 1985 to establish such a regulatory approach whereby the Government would accredit sanctioning bodies which would take on the primary role of regulating motor racing from a safety perspective.
According to the discussion paper: The proposed reforms to the Act and Regulation and associated rules would result in the NSW Government accrediting 'sanctioning bodies' to issue licences and permits for tracks and races. The focus of the Act remains public safety.
Submissions from stakeholders were to be received by 12 May 2021 with a bill to be drafted to amend the current Act. At the time of these proceedings, no further information was provided in relation to the progress of the reform process.

[9]

Motorsport Australia

Motorsport Australia (previously known as the Confederation of Australian Motor Sport or CAMS) is a not-for-profit member-based organisation focused on the development, regulation and administration of motor sport across Australia. Motorsport Australia is the organisation chosen by the FIA (Fédération Internationale de l'Automobile) to be its delegated National Sporting Authority (ASN).
According to its constitution, the objects of Motorsport Australia are to: (a) adopt and exercise the Sporting Power as the ASN [National Sporting Authority] for motorsport in Australia and administer, promote, manage, encourage, conduct and exercise control of and over motorsport in Australia and its territories in accordance with the Code and such instructions and directions as may from time to time be received from the FIA and at all times in accordance with and in the spirit of the traditions of true competitive sport; (b) conduct, encourage, administer, promote, advance and manage motor sport in Australia through competition and commercial means; (c) ensure that all motorsport in Australia is carried out in a manner which secures and enhances the safety of participants, officials, spectators and the public and which allows the sport to be competitive and fair; (d) establish and regulate a State Council in each State; (e) formulate, issue, interpret, implement and amend from time to time the Regulations as are necessary for the control and conduct of motorsport in Australia; (f) enforce the Regulations and, where applicable, the Code; (g) issue licences and permits in accordance with the Code and the Regulations; (h) determine, arrange and publish an annual Australian motorsport calendar of events; (i) maintain a central registry of Members; (j) establish and maintain an Australian motorsport judicial system in accordance with the Regulations; (k) pursue through itself or other entities commercial arrangements including sponsorship and marketing opportunities as are appropriate to further these Objects; (l) promote and be engaged in road safety; (m) develop a culture of safety, training and education; (n) formulate or adopt and implement appropriate policies, including in relation to harassment, equal opportunity, equity, drugs in sport, health, safety, infectious diseases and such other matters as arise from time to time as issues to be addressed in motorsport; (o) arbitrate disputes between State Councils or between Affiliated Clubs in different States; (p) compile, and amend as required, a list of national records; (q) do all that is reasonably necessary to enable these Objects to be achieved and to enable the Members to receive the benefits which these objects are intended to achieve; (r) cooperate or join with or support any Club, association, organisation, society or individual which: (i) undertakes activities, or has purposes which are similar to those of Motorsport Australia, or which advance motorsport in Australia; and (ii) has not acted, and / or will not act, in the opinion of the Board, contrary to the interests of Motorsport Australia, the Members or Motorsport; and where such co‐operation and / or joinder is in the best interests of Motorsport Australia and / or motorsport (s) have regard to the public interest in its operations; and (t) undertake and/or do all such things or activities as are necessary, incidental or conducive to the advancement of these Objects.

[10]

Mr Michael Smith

Mr Michael Smith has been the Director of Motorsport & Commercial Operations of Motorsport Australia since 2012. He describes the role of his department to 'develop and maintain motorsport regulations for the country.. we have safety regulations, we have sporting regulations, we have technical regulations, we have regulations which dictate the safety standards for circuits.'
He agreed that Motorsport Australia sanctions motorsport events that Motorsport Australia itself promotes.
Mr Smith describes the FIA as a not-for-profit association that was founded in 1904, is based in Geneva Switzerland and is the governing body for world motor sport and the federation of the world's leading motoring organisations.
According to Mr Smith: The FIA brings together more than 120 National Sporting Authorities. One of the FIA's key areas of concern is the safety of everyone involved with motor sport, including spectators, volunteers, race team members and the competitors themselves. The FIA is considered the preeminent motorsport safety organisation in the world. The safety standards devised by the FIA are rigorously applied by [Motorsport Australia] at all levels of the sport to ensure the safety and wellbeing of all competitors and officials. It is [Motorsport Australia's] status as a [National Sporting Authority] of FIA that means that it is the only motorsport organisation in Australia that has access to any FIA safety information..As the Australian Auto Sport Alliance (AASA) does not have status with the FIA as a [National Sporting Authority] it does not have access to any of the key safety developments or learnings from the FIA…The access to this type of information is one of the key practical benefits of affiliation with the FIA..[Motorsport Australia] conducts and sanctions motorsport in full compliance with FIA safety requirements. Further, only an FIA appointed and licensed track inspector is able to conduct circuit inspections for the provision of a FIA Track Licence. The FIA will not inspect or license a venue for use or sanction under AASA.
In relation to safety race procedures, Mr Smith stated that: Whilst [Motorsport Australia] has a comprehensive anti-doping policy that complies with the National Anti-Doping Scheme established under the Sport Integrity Australia Act 2020 and the Sport Integrity Australia Regulations 2020 I know that AASA only has a limited list of prohibited substances listed in Schedule 3 of their National Competition Rules (v2.6, October 2019) which is severely deficient in comparison to the [Motorsport Australia] Anti-Doping Policy. Noting that AASA accept [Motorsport Australia] competition licenses at their events, AASA has no mechanism to ensure that those [Motorsport Australia] licensed drivers are not currently on suspension from [Motorsport Australia] or Sport Integrity Australia for any doping or integrity breaches. In May 2018, following a number of safety concerns, Motorsport Australia revoked its sanction of Stadium Super Trucks on safety grounds. This followed an incident…where a truck wheel came off and hit a spectator bridge. Despite these safety concerns, an event allowing Stadium Super Trucks was sanctioned by AASA and run at Eastern Creek International Raceway in October 2018…Since 2015 the AASA have sanctioned the 'Lemons' event which is run annually at Wakefield Park Raceway. I am of the opinion that [Motorsport Australia] would not sanction such an event because it involves cars [Motorsport Australia] would not consider safe for racing.
On 17 December 2020, Mr Smith had a conversation with Dean Chapman (Operations Manager at Wakefield Park) which he interpreted as Mr Chapman pressing Motorsport Australia 'to compromise on its track use safety standards in order to "get more value" out of his track licence.'
According to Mr Smith, Motorsport Australia will not accept AASA licences as it is not satisfied that the level of safety applied to the issuing of their competition and officials' licenses is satisfactory and because AASA does not require its licence holders to comply with the standards required by Motorsport Australia or the FIA.
It is also Mr Smith's opinion that 'AASA does not conduct track inspections to the same standard or level of scrutiny as [Motorsport Australia] and the FIA as an AASA track inspector does not possess FIA qualifications and they do not have access to FIA accredited track inspectors, the FIA track simulation software and analysis and the FIA world accident database.'
Mr Smith's evidence is that Motorsport Australia takes particular care of competitors who are under 16 years of age. This is done through a graduated licence structure that outlines the type of vehicle different aged competitors are eligible to compete in.
According to Mr Smith: [T]he Motorsport Australia graduated licence structure and motorsport development pathway directs competitors under the age of 16 to cars that are less powerful and have the latest in safety equipment which is in contrast to the AASA Junior Participants Policy.
Mr Smith confirmed that the Motorsport Australia Manual - General Regulations Competition Licences is 'a set of regulations that sits within the Motorsport Australia manual of motorsport which is our rule book, in effect, and this particular document sets out our regulations with respect to competition licencing.'
According to Mr Smith, it includes a table that 'sets out the minimum ages that we allow in different types of category of racing vehicles, and the concept is that the minimum age for instance, if you take Formula Vee for an example, the minimum age you are allowed to race one of those vehicles is 14, whereas if you look at a GT championship car, the minimum age that we allow someone to compete or drive in a racing environment in one of those cars is 17.'
Also included in this manual is a table headed Circuit Racing Junior which, according to Mr Smith sets out the requirements for juniors in obtaining their circuit racing license, and there's a number of steps required to go through to obtain their licence. [A]s part of that they are required to submit a medical statement or in some instances, do a medical examination. They are also required to undertake a lecture, which provides some theory around the rules of motorsport and some fairly important safety messages, and then the third element of obtaining a licence is undergoing what we would call an observe license test, which is being observed by senior motorsport people to make sure that they are able to - or they're safely able to control the car. Once they've satisfied all that criteria, they are able to obtain their licence, so that's the first step in obtaining their licence, and then there's upgrade conditions, and the first level of any licence is a provisional circuit racing licence, in which there's certain restrictions on the competitor that obtains that licence. There's certain events that they're only allowed to compete in and they are required to display P plates on their vehicle, and once they've satisfied the criteria which is typically a certain number of events which must be endorsed by a clerk of the court or senior officials at an event that they've satisfactorily completed that event, they're able to move on to the next level of licence which is a national level licence. It also sets out what we call the maintenance conditions, so in order for you to renew your licence every year, you have to have undertaken a certain or a minimum amount of races within that period of time to satisfy the criteria to renew. So that table really sets out all of those requirements.
In cross-examination, Mr Smith was asked why under 16-year-old competitors require additional protection only in NSW and not in any other Australian state: [T]here's specific legislation that relates to motorsport in New South Wales, there's no other state that has such legislation. Irrespective of that legislation, we regulate the sport, I guess with a mandate for safe, fair and socially responsible motorsport, and we take the view that it's important to have a graduated license structure, such that children under the age or children under the age of 16 aren't getting into cars that are too powerful or unsafe, and that's why we have that licence regulation as it stands.
Mr Smith stated that Motorsport Australia has a graduated scheme in place for under 16 racing because: [f]undamentally it's for safety reasons, and we - we are very conscious of making sure that people under the age of 16 aren't getting themselves into a car that's a) not too powerful, but also trying to encourage them to race in the safest equipment possible…[W]e understand that children who are aged under 16 don't necessarily have the strength, and in some way the ability of people that might be over 16, and so we're very keen to ensure that they are racing in the safest possible environment

[11]

Mr Eugene Arocca

Mr Eugene Arocca has been the CEO of Motorsport Australia since 2012. He describes the role of Motorsport Australia as providing 'the technical and safety rules and trains and licences marshals and officials for motorsport events in Australia. A former legal practitioner, Mr Arocca was appointed to the Melbourne Health Board in 2016. As CEO of Motorsports Australia, he is 'responsible to the board for ensuring that the operations of Motorsports Australia are carried out with good governance, and a strong management and executive input to ensure that we'll meet our obligations under our constitution.'
According to Mr Arocca: As the CEO of [Motorsport Australia] I have overall responsibility for risk management and in 2018 [Motorsport Australia] established a Risk Committee to ensure practice governance and oversight of risk in motorsport.
He describes Motorsport Australia as 'a not-for-profit, member-based organisation focused on the regulation, administration, development and promotion of motorsport across Australia. It has been the governing body of motorsport in Australia since its establishment in 1953 and has been recognised by the FIA as the Australian ASN [National Sporting Authority] under the FIA Code since about 1960.'
He confirmed that the Motorsport Australia manual is published annually and includes all its up-to-date policies, including its Occupational Health and Safety Policy and the Safety 1st Strategy.
Prior to COVID, Motorsport Australia had 51 full-time employees but the organisation has been restructured since COVID and now has about 35 full-time employees.
According to Mr Arocca: 1. Motorsport Australia is committed to 'carrying on the mission of the FIA, which includes as one of its principal objectives, promoting and endorsing the safety of all spectators, officials and competitors'; 2. Motorsport Australia is formally recognised by Sport Australia as the national sporting organisation for four-wheeled motor sport in Australia. Sport Australia, formally the Australian Sports Commission, is the Australian Government Agency responsible for supporting and investing in sport and ensuring good governance of the various sports bodies in Australia.
In his statement, Mr Arocca refers to the FIA Code which states that: 1. the FIA is the sole international sporting authority entitled to make and enforce regulations based on the fundamental principles of safety and sporting fairness, for the encouragement and control of automobile competitions, and to organise FIA international championships (Article 1.1); 2. the FIA Code will never be enforced so as to prevent or impede a competition or the participation of a competitor, save where the FIA concludes that this is necessary for the safe, fair or orderly conduct of motor sport (Article 1.2.3); 3. One ASN [National Sporting Authority] shall be recognised by the FIA as sole international sporting power for the enforcement of the FIA Code and control of motorsport throughout the territories placed under the authority of its own country. Each ASN shall be bound by the FIA Code (Article 1.4.1 and 1.4.2); 4. Each ASN may draw up its own national competition rules which must be made available to the FIA (Article 1.8); and 5. A national competition is placed under the sole sporting supervision of an ASN, which exercises its powers of regulation and organisation (including through its national competition rules) while respecting the general conditions of the FIA Code. (Article 2.3.1)
According to Mr Arocca, AASA was created 'to offer a cheaper alternative to [Motorsport Australia] without many of the regulatory structures and rules created or adapted by [Motorsport Australia].'
It is Mr Arocca's view that the 'AASA is not a true member based organisation, in that it is a subsidiary company of the [Benalla Automobile Club]…[and] does not publish annual reports, is not governed by a membership-based structure and is not accountable to any government authority.'
Mr Arocca is of the opinion that: The AASA is not a true sanctioning body and should not be entrusted with the responsibility of having any involvement in providing safety in motorsport. It is essentially an organisation that has a for profit business model that relies, in part, on the structure and framework created by [Motorsport Australia]. I believe there are significant risks in allowing the AASA to have any involvement with under 16 year-old racing given that there are already concerning signs regarding their operations for..those competitors over 16 years of age.
Examples of Mr Arocca's concerns in relation to AASA operations include: 1. their management of a proposed event at Mt Hotham on 14-15 November 2015 which was cancelled following concerns raised with the Minister for Sport by Mr Arocca; 2. the decision by AASA to sanction the Super Stadium Trucks Series following the decision by Motorsport Australia to suspend the series from racing under its sanctions due to serious safety concerns; and 3. the fact that the AASA is a profit-driven business operation only accountable for its conduct to its shareholder, the Benalla Automobile Club.
According to Mr Arocca, the elements that distinguish Motorsport Australia from the AASA as far as safety is concerned, are that Motorsport Australia: 1. has an international affiliation with FIA and the benefits that flow from that affiliation in terms of safety research and access to the best and most current safety data from a world motorsport authority; 2. is fully accountable and transparent with all activities through annual reports and accounts; 3. complies with the criteria set down by Sport Australia with respect to governance and officiating; 4. is the only four wheeled body with an agreement with Sport Integrity Australia (formerly ASADA), which binds Motorsport Australia participants to the strict codes regarding anti-doping; 5. has the only fully integrated training system for officials with medical requirements which provides an international pathway; 6. has over 50 different policies dealing with everything from member protection to occupational health and safety; 7. has a board delegated Risk Committee made up of independent risk experts; 8. is the only sanctioning body with $100M in public liability insurance, whereas AASA reportedly only has $25M in public liability insurance; 9. has specific and dedicated relationships with all governments; 10. has a detailed risk management plan; 11. has an internationally derived, and authentically authored, Track Design and Safety Guide; 12. has a demonstrated safety and risk management framework which includes the ability to undertake comprehensive safety reviews on circuit safety (i.e. licensed track inspectors and circuit safety simulation software); 13. has a recognised process for approving (homologating) motorsport safety equipment; 14. has a licensing system with medical standards; 15. has an independent Medical Committee; 16. has dedicated staff for integrity, safety and risk management; 17. has a demonstrated capability to investigate incidents and make recommendations for necessary improvements; 18. has an independent judicial structure (stewards, tribunals); and 19. does not own or lease any venues, thereby giving rise to a conflict of interest in reviewing track safety.
In cross-examination, Mr Arocca confirmed that since he became its CEO, Motorsport Australia has made between 15 and 20 claims on its insurance. He agreed that Motorsport Australia has been sued in relation to events that it has sanctioned, and that there have been three deaths and other serious injuries in events sanctioned by Motorsport Australia.
He agreed that Motorsport Australia wishes to remain the National Sporting Authority for FIA telling the Tribunal: Well we've been appointed by the FIA and we're regularly monitored for our performance, and, yes, we would be certainly very strongly opposing any other entity taking on the responsibility that we've acted on for some seven years.

[12]

Mr Scott McGrath

Mr Scott McGrath has been the technical manager of Motorsport Australia since 2013.
According to Mr McGrath, Motorsport Australia's affiliation with FIA gives it access to the complete support network in relation to the FIA motorsport safety standards. The AASA does not have a connection to the FIA and, according to Mr McGrath, the AASA regulations do not apply motorsport equipment standards, especially those for primary safety, to the level as required by Motorsport Australia. Mr McGrath gave the example of the AASA's continuing approval of the British Standard for a helmet that was deemed unacceptable by the FIA in 2013 and removed from use by Motorsport Australia in 2017. Mr McGrath also expressed his concern at the provision in the AASA regulations for the extension of the life of a safety harness, stating that it 'may be used for up to five years beyond the end of use date as provided by the manufacturer.'
In cross examination in these proceedings, Mr McGrath confirmed that the safety guidelines and procedures developed by FIA and adopted by Motorsport Australia are sound to provide for the safety of all involved in motor sport including competitors and spectators. He confirmed that the guidelines and procedures adopted by AASA are similar to those of Motorsport Australia.
On the basis of his experience in motor sport and as a father, he gave evidence that, in his assessment, competitors who are under sixteen years of age require special protection: Under Motorsport Australia, I was appointed to assist and manage the formula 4 category across many events during 2017, 2018 and prior to that. [I]t is our experience dealing with many competitors in the junior bracket of formula 4 under 16, it just showed me that we needed to engage with experienced adults in the sport, be they team management and in conjunction with that, their parent or guardian to assist with ensuring that they were prepared for what they were undertaking….I've had many dealings with juniors in all sorts of categories…[W]e understand that it is still a learning phase for these individuals as they participate in the sport and they need the guidance and, again, that's why under Motorsport Australia we provide certain restrictions and certain elements as to what they're permitted to do as juniors within the sprot, whether it be a restriction on the performance of the vehicle or the engine capacity or otherwise for those under 16s that are participating in the sport. We put all these measures in place because they are growing. They are developing. They are learning, as to some degree we all are, but certainly at that age bracket the responsibility sits with the parent and guardian and for me, being involved with the regulator to ensure the safety of those under 16s in the sport….Motorsport Australia applies restrictions on the vehicle type which then includes elements of engine capacity for the participant of under 16s in the sport. There is therefore a limitation on the power to weight ratio of a vehicle for those participants. So we limit, essentially, the power output that they're able to achieve by certain vehicle types and there are limitations appl[ied] then to those under 16s as to what they are able to participate in.
According to Mr McGrath those restrictions are applied: to ensure that the under 16s have..a graduated introduction to the sport through a learning program as they develop the skills in vehicles that are of a lower power output than those at the top end and almost professional level of the sport.

[15]

Mr Tom Kristensen

In addition to his role as President of the Drivers Commission of the FIA, Mr Kristensen is an experienced motorsport driver, having won the Le Mans 24 Hour race 9 times.
In undated correspondence to Mr Arocca, Mr Kristensen wrote that: My focus has always been on driver safety and I have a particular interest in the safety of young drivers. I understand that applications relating to competition by youths aged under 16, have been lodged by Wakefield Park and the ARDC. From my own knowledge, except where otherwise stated, and where I address matters based on information or belief, I believe the following to be true. In relation to young drivers wishing to compete in motorsport there are some very serious issues. Young people in the sport are usually there with the strong support, encouragement and even the "pushing" of one or both of their parents. From a young age, it is often the ambition of the parent(s) that motivates the ambition of the child or youth. It is rare that these young people give serious consideration to safety - safety of their equipment, safety of their car or kart, and safety of the circuit that they drive on. They are simply interested in performance and results. Likewise, their parents often share the same priorities. In many cases, or even most cases, the parents and the children do not have a detailed knowledge or understanding of all the risks and more importantly, how certain equipment, procedures and circuit safety items, can impact on them. Therefore, it is imperative that an independent and well-resourced organisation set standards for the participation of these junior members of our sport. It cannot be left to parents to decide on a cost basis, which events to attend, which safety equipment to use or which circuits to race on. There have to be standards for all these matters, and those standards can only be set with research and testing. Frequently, parents will spend money on performance items for the vehicle of their child, whilst being ignorant of the investment that they need to make in meeting the correct safety standards for the equipment they use. Motorsport Australia is an affiliated Member of the FIA, meaning that it is the only FIA Member recognised as an ASN (National Sporting Authority) in Australia. It seems to me irresponsible to allow young people, or any person, to compete in a motorsport event that is not under the control of the FIA's delegated authority in any particular country.

[18]

Mr Stephen Whyte

Mr Stephen Whyte, who gave oral evidence in these proceedings, has been the Business Development Manager of the AASA since 2017.
According to Mr Whyte AASA is a sanction body which issues permits and has been sanctioning motorsport in Australia since 2004 and New Zealand since 2018. New South Wales is the only state that will not allow those motor sport competitors who are under 16 years of age to compete in motorsport events which are sanctioned by AASA. In 2019-2020, the AASA sanctioned 179 events compared to 17 sanctioned by Motorsport Australia. The AASA has had no claims for under 16-year-old events.
It is Mr Whyte's opinion that: AASA has wide experience in staging motor sport events for all ages. It has developed skills and expertise that it relies on to stage safe and successful events. It is capable and ready to ensure that the applicants are able to stage safe and successful motor sport events for under 16 years of age.
Mr Whyte agrees that Motorsport Australia is the only delegate in Australia of the Fédération Internationale de l'Automobile (FIA). As there is only one delegate able to represent Australia, the AASA is prevented from being a delegate of the FIA. Not having the FIA connection does not prevent the AASA being a sanctioning body in the Australian marketplace, as the membership of the FIA is merely a means to affiliate with an international body.
As an independent sanctioning body, the AASA is at liberty to sanction motorsport events provided the safety standards and requirements are met. Mr Whyte notes that 'these motorsport events may not be events Motorsport Australia chooses to sanction, but that does not prohibit AASA taking a different view and [sanctioning] these events.'
According to Mr Whyte: The AASA provides permits and sanctions events with sensible and sound regulations for the standard of motorsport which is being conducted. The AASA has insurance, a duty of care, site OH&S requirements and safety as the forefront when issuing a race permit. The safety requirements for motor racing are further dictated by the insurer, which dictates what events the AASA can sanction and which they cannot with those safety requirements in mind.. The AASA enjoys a safety record without death or serious injuries…Any participants who are under the age of 16 are subject to the same levels of safety, which is the same standard as Motorsport Australia.
He confirmed that the AASA has had no claims for under 16-year-old events.
He also confirmed that the AASA is not required to adhere to the FIA standards in the domestic marketplace when conducting motorsport events.
He gave evidence that AASA now sanctions Formula Ford on a national scale, which was previously sanctioned by Motorsport Australia until approximately five years ago when Motorsport Australia refused to sanction the Formula Ford event as a national race.
He gave evidence that Motorsport Australia have refused to sanction the Australian Motor Racing Series, which is also owned by the Benalla Auto Club, and which has held events at Wakefield Park. The AASA has previously sanctioned Australian Motor Racing Series events.
Mr Whyte did not agree that considering an application to sanction an Australian Motor Racing Series event could pose a conflict for him given that he reports to the CEO of Benalla Auto Club: My role is to report the activity of the AASA to my senior who is my CEO. It's not -it's absolutely not a part of my business to compromise the running of this business in order to help out another foot in another business…May I add that you're talking about safety, so Wakefield Park as an example , holds a AASA track licence [and] also holds a Motorsport Australia track licence. So if there's any issues with safety, it would be the concerns of both ourselves and Motorsport Australia if there was any issues at the track.
According to Mr Whyte: Younger people are given opportunities only if they are ready, experienced and also have the capability and skill set to be able to drive a race car. Both sanctioning bodies appoint officials and senior officials at events that are ready and willing to observe younger drivers in practice to make sure that not only are they properly skilled but also are able to compete. In addition, there is a licensing process that mandates a test. So the process of younger drivers getting to race is intensive and it is the same for anyone - that is any younger or older person has to go through the same rigorous process but younger persons most definitely have to prove themselves in a test. The age of the participants is one of the matters taken into account in determining eligibility to compete.
In relation to licences given to junior motorsport participants, Mr Whyte gave evidence that: [O]nce they're passed the criteria for an observed licence test, then that individual is able to compete as a race meeting, provided the clerk..of the event, and the event promoter, is satisfied that the particular individual can conduct themselves at that level of the sport in that event. Remembering that when an observed licence test is conducted and they're issued with a licence, they are issued with a rookie licence, not a full licence and they are observed to display P plates, so that they can be observed in racing… So Motorsport Australia has a table of what juniors can compete under what thing..but the reality is we haven't experienced any issues, and the responsibility of the senior officials of the day will always determine what these participants can conduct themselves and most certainly enter into.
Mr Whyte agreed that Motorsport Australia has a junior driver's document setting out vehicles that are eligible to be driven by juniors and that specifies not only the particular type of vehicle but the power capacity of the vehicles that the juniors of different ages are able to drive.
Mr Whyte told the Tribunal: The reason why we're here is that those same people, and those same juniors that drive those same cars, just want [to] race at more race meetings, hence the reason for our application.
Mr Whyte confirmed that, in total, three people are employed by AASA: Mr Whyte himself and two administrative staff members.
In answer to the question as to whether the AASA has a CEO, Mr Whyte replied 'Yes, it has a CEO, so the BAC Group CEO, yes…[t[he Benalla Auto Club Group.' He confirmed that he directly reports to the BAC Group CEO, Mr Chris Lewis-Williams: It's…the Benalla Auto Club itself owns Winton Motor Raceway and Wakefield Park Raceway…indirectly [AASA] is owned by the BAC, yes, in its entirety..so then we are controlled by the Benalla Auto Club.

[21]

Mr Dean Chapman

Mr Dean Chapman, who gave oral evidence in these proceedings, is the Operations Manager at Wakefield Park Motorsports Pty Ltd. He confirmed that, at least indirectly, the Benalla Auto Club owns Wakefield Park Motorsport Proprietary Limited.
He agreed that when Wakefield Park hosts a motorsport event, the same officials, the same track inspection, the same type of barriers, the same system, the same scrutineers are used by the promoter, regardless whether the event is sanctioned by AASA or Motorsport Australia. He agreed that in carrying out their functions on the day of the event or the day of the race, the scrutineer or the official would be guided by the documentation or the regulation that is in place for the event, as issued by the sanctioning body. Those documents, he agreed, are not the same.
He gave evidence that Wakefield Park intends to host events with permits issued by AASA. The events, for which the AASA provides permits for in other states include, but are not limited to, 'Toyota 86 Australian Rising Stars Series' 'Formula Vee' and 'Formula Ford National Series' which foster young motorsport talent for competitors ages between 14 and 16 years.
According to Mr Chapman, during the two and a half years that he has been the Operations Manager at Wakefield Park, he has never been contacted by the Office of Sport about any safety concerns in relation to Wakefield Park or how the race meetings are conducted. He also confirmed that key operational staff who are engaged to conduct motorsport events at Wakefield Park are the same for both the AASA and Motorsport Australia. Of the 293 race events held at Wakefield Park in 2019, 179 were sanctioned by AASA and 114 by Motorsport Australia.
According to Mr Chapman: There is currently only one body which is authorised to provide permits for races for participants under the age of sixteen in NSW and this permitting body provides permits at an extremely high cost to the promoter, who must then pass the cost onto the competitors. The current permits issued in NSW for competitors under sixteen years of age, means that there is no competition in this particular marketplace and other bodies, which issue permits in other jurisdictions, cannot be allowed to compete in the NSW marketplace.
In relation to safety matters, it is Mr Chapman's evidence that: If Wakefield Park hosts a motorsport event then the same officials; the same track inspection; the same type of barriers, the same system (flags or lights); the same scrutineers are used for both AASA and Motorsport Australia. The regulations and documentation are to ensure the same level of safety. From the perspective of Wakefield Park, there is no difference in running an event which is sanctioned by AASA or Motorsport Australia. That is, whether the sanctioning body [is] AASA or Motorsport Australia, the safety of the event would be at the same high standard.
In correspondence dated 28 January 2020 to Dr Geoff Lee MP, the then Acting Minister for Sport, Multiculturalism, Seniors and Veterans, Mr Chapman made the following request to seek an exemption to condition 37 of the licence held by AASA: Wakefield Park Motorsport in Goulburn is seeking to run a national-level Australian Motor Racing Series event at our venue [Wakefield Park]. The event includes a 'Toyota 86 Rising Stars Series' designed to foster young motorsport talent for persons aged between 14 and 25 years. Permits for this nationwide event are issued by Australian Auto Sports Alliance (AASA), a competitor of [Motorsport Australia, formerly] CAMS. However, given condition 37 of the Motor Vehicle Racing Grounds Licence, AASA would not be able to proceed. If we were unable to facilitate this youth event due to the licence restriction, the full Australia Motor Racing Series may be forced to relocate the full series to a state that does allow AASA to permit drivers 14 years and over. From Wakefield Park's perspective, this condition restricts competition between permitting bodies in Australia, providing an unfair advantage to CAMS [Motorsport Australia]. All other states within Australia provide an equal playing field to AASA and CAMS, allowing both bodies to permit persons aged 14 years and up to compete.
Mr Chapman gave evidence at these proceedings that at Wakefield Park, 'anyone from the age of 14 and up can participate in a recreational type event.'
Mr Chapman agreed that in races sanctioned by AASA for under 16-year-old drivers, he does not get a supplementary regulation or a document that is under 16 specific. By contrast, he agreed that in the case of motorsport events that are sanctioned by Motorsport Australia, where under 16-year-old competitors can participate, Motorsport Australia provides documents or regulations for the event that are specific to under 16-year-old participants.
In an email dated 16 August 2019, Mr Chapman sets out his concerns in relation to racing by under 16-year-old competitors: The legislation that provides [Motorsport Australia, formerly] CAMS with a monopoly on the market for that 14 and 15 year age gap is a concern if sports and rec of NSW wish to encourage growth through competition. My example is how Wakefield Park a customer of AASA are able [to] provide a competitive product in country NSW. The use of a AASA product is vital, due to our product price point. But we can't target this market because the cost of CAMS permits increases our overheads which takes us out of reach from the market demanded price. If we were to use the CAMS product, people would not purchase our product, as the price would reflect a more premium product such as a Sydney Motorsport Park or The Bend (SA). The cost to come to rural areas such as ours is more cost sensitive.

[23]

Information sought from Australian Institute for Motor Sport Safety Ltd (AIMSS) for the Inquiry into Motor Recreational Activities (Qld) (Report No 42, 56th Parliament Transport and Public Works Committee)

In its inquiry into Motor Recreational Activities, the Qld Transport and Public Works Committee sought advice from the Australian Institute for Motor Sport Safety (AIMSS) regarding the advantages and disadvantages of Motorsport Australia and Motorcycling Australia having sole regulatory body delegated authority in Australia.
AIMSS provided the following reply: Advantages The two international federations (FIA and FIM) only delegate to one organisation per country, in accordance with their respective statutes. Those organisations are only accepted by the FIA and FIM if they can demonstrate that they are competent to administer and regulate the sport in the particular country. Safety is a major priority in the awarding this delegation. It is AIMSS's belief that within each discipline of motor sport, there must be only one regulator. It should be noted that as permitted by the FIA Statutes, Motorsport Australia has delegated its authority to ANDRA for drag racing and Karting Australia for karting. To have more than one regulator for a particular discipline would be like having a competing organisation to the Civil Aviation Safety Authority, which could offer "cut price" aircraft licensing with lower standards required. Or a competitor to ASIC, which could have lower standards for corporate governance. For clarity, Motorsport Australia does not compete with ANDRA or Karting Australia as an alternative regulator. Both entities undertake the role in accordance with the authority delegated to them by Motorsport Australia and the internationally established safety framework, and neither is an alternative to each other or to Motorsport Australia. The two organisations referred to (Motorsport Australia and Motorcycling Australia) are member based, not‐for‐profit organisations with a demonstrated track record for excellent risk management and good governance. They have experienced boards and senior management. They also invest significantly in junior development, female participation, risk management (including anti‐doping and alcohol testing) and, most importantly, the application of suitable safety standards. They also have fair and tested independent judicial systems. They have appropriate policies around harassment, bullying, anti‐corruption and ethical behaviour. Some competing bodies which hold themselves out to be "sanctioning" bodies (when in fact they are mainly insurance re‐sellers) are privately owned and run, have no member participation in their conduct, and return little or nothing to the sport. Their motivations are based on profit, which can be potentially problematic. For instance, if there was a competitor to WorkSafe Queensland that was privately owned and made a profit margin on the conduct of its work, with lower fees and a reputation for being 'more commercial' then policy makers may be concerned that the presence of this alternative, privatised regulator may compromise safety in workplaces. Disadvantages It could be argued that having only one delegated authority could lead to fee gouging. We do not believe this to be the case and this is evidenced by the fact that neither organisation could be considered "wealthy" by any means and especially when compared to sports which rank alongside motorsport in the top 10 sports in this country. Fee levels in all sports, whether a football code or other sport, are subject to debate. No sport seeks to price potential competitors out of their sport, and the solution promoted across the sporting landscape does not generally involve introducing privately owned, competitor bodies to the recognised National Sporting Organisations. Long established organisations may sometimes be criticised for being slow moving, or intransigent. However, both Motorsport Australia and Motorcycling Australia have shifted and improved significantly in the past decade to dynamic, well‐governed, and well‐managed sporting regulators. Furthermore, the very nature and existence of motor racing demands all participants have an agile approach to all aspects of the business. Therefore, and notwithstanding the essential corporate governance points outlined above, improvement will always be ongoing.

[27]

What are the purposes of the Motor Vehicle Sports (Public Safety) Act?

The Motor Vehicle Sports (Public Safety) Act 1985 ('the Act'), in conjunction with the Motor Vehicle Sports (Public Safety) Regulation 2015 ('the Regulations'), governs the manner and circumstances in which motor vehicle sports may be conducted in the State of NSW.
The Act empowers the Minister of Sport to license land to be used as a motor vehicle racing ground.
As set out in detail above, the Act also empowers the Minister to establish advisory committees to undertake the investigation of and to inform and advise the Minister concerning any matter relating to motor vehicle sports. Under the Act, these committees shall include 'such members, nominated in accordance with the regulations, of one or more prescribed organisations, being organisations having among their objects, the promotion of a motor vehicle sport.' (s16 of the Act)
The regulations currently prescribe the following organisations: 1. Australian National Drag Racing Association 2. Confederation of Australian Motor Sport Ltd 3. Karting (NSW) Incorporated 4. Motorcycling NSW Ltd 5. National Association of Speedway Racing Pty Ltd.
There is no dispute that the Act and the Regulations are designed to improve safety standards and promote public safety in the staging of motor sport events. The Act was enacted in a context of concern over public safety (including the safety of participants) and that was the mischief the Act was intended to remedy. The Acts and the Regulations do not, however, refer to any controls on the age of the competitors in any classes of vehicles at motor vehicle racing grounds.
When introduced in 1985, the purpose of the Act was stated to be 'to strengthen the legislation's ability to deliver improved safety standards for spectators and participants by taking into account the major technological advances in motor sports and advances in safety.'
That the purpose of the Motor Vehicle Sports (Public Safety) Act includes preserving the safety of participants and spectators was accepted by Justice Cavanagh in Shaw v Oakdale Junior Motorcycle Club Inc [2020] NSWSC 180.
Whilst is it agreed that the Minister is permitted to issue licences subject to prescribed conditions and such other conditions as may be specified, it is the applicant's submission that the power of the Minster to prescribe conditions is not at large but rather defined and confined by the purpose of the legislation or mischief which it was intended to remedy.
It is the applicant's submission that there is nothing in the terms of the legislation that warrants or permits a construction that promotes an entrenched market position in some organisations or creates a barrier to entry to other organisations. According to the applicant, 'the present closed- shop designed to limit the commercial benefits of conducting under 16 motor sport events is not and could not be a purpose of the Act.'
It is the applicant's submission that the respondent, through the current licensing practice, is acting in an anti-competitive manner or in a manner which, indirectly, restricts competition. Whilst the applicant does not claim that the regulation of motor sport activities by the Office of Sport is contrary to any NSW or Commonwealth competition laws, it does contend that there is a broad policy in Australia and in NSW to promote healthy and sound competitive practices. The applicant submits that these practices form part of the requisite context within which the validity and reasonableness of the impugned conditions should be evaluated.
I am satisfied that in relation to the purely regulatory functions it undertakes in issuing licences and imposing conditions on such licences under the Act, the Office of Sport is not bound by the Competition Policy Reform (NSW) Act 1997. This is because the regulation of the conduct of motor sport activity does not amount to the Crown carrying on a business, which is required in order for the Office of Sport to be bound by the Competition Policy Reform Act. In this context, I am not satisfied that the promotion of healthy and sound competitive practices is a purpose of the Motor Vehicle Sports (Public Safety) Act.
On this basis, I do not accept that any claim that the Office of Sport is acting in an anti-competitive manner is relevant to my task in determining the correct and preferable decision in these proceedings.

[29]

In the case of participants in motor vehicle racing under the age of 16 years, are there any factors which demonstrate that there are additional safety concerns for such participants (when compared to older participants)?

On the evidence before me, and for the reasons set out below, I am satisfied that in the case of participants in motor vehicle racing who are under the age of 16 years, there are factors demonstrating that there are additional safety concerns for such participants.
As set out in the Discussion Paper on the Review of the Motor Vehicle Sports (Public Safety) Act published by the Office of Sport in October 2019, over time the Office of Sport has developed the practice of relying on advice from some motor sport organisations, five of which are listed in clause 27 of the Motor Vehicle Sports (Public Safety) Regulation as potential members of advisory committees. They include Motorsport Australia but not AASA. Although no advisory committees are currently operating, they have operated in the past.
Minutes for the meetings of the Motor Vehicle Sports Licensing Advisory Committee on 14 August 2006, 6 November 2006 and 5 February 2007 express concern regarding proposals to lower the age of competition for juniors in speedway racing in NSW. Minutes for the meeting of the Motor Vehicle Sports Licensing Advisory Committee on 16 February 2009 refer to police concerns in relation to a proposal to have 14 to 16-year-old children involved in limited CAMS (now Motorsport Australia) events. Minutes for the meeting of the Motor Vehicle Sports Advisory Committee on 30 September 2013 express police safety concerns in relation to the proposal to reduce the age of navigator and pit crew participants from 14 to 12 years of age in Off Road racing in NSW. During this meeting, police advised that they were not in a position to support the proposal or make any recommendations to the police commissioner due to insufficient information in relation to survivability rates of juniors, competency skill levels and physiology levels and rates.
Safety concerns for younger participants in motor vehicle sports have also been raised by Mr Tom Kristensen, President of the Drivers Commission of the FIA and Professor Gerard Saillant, President of the FIA Medical Commission. Neither Mr Kristensen nor Professor Saillant were required for cross-examination by the applicant in these proceedings.
I accept the written evidence of Professor Saillant and Mr Kristensen and give particular weight to the following concerns by Mr Kristensen: 1. that many younger competitors do not give serious consideration to safety; 2. that many younger competitors prioritise performance and results over safety; 3. that, in many cases, the parents and child competitors do not have a detailed knowledge and understanding of all the risks and how certain equipment, procedures and circuit safety items, can impact them; 4. that parents will frequently spend money on performance items for the vehicle of their child, whilst being ignorant of the investment that they need to make in meeting the correct safety standards for the equipment they use.
In light of his experience in motor vehicle racing, I also accept the evidence by Mr Michael Smith, Director of Motorsport & Commercial Operations of Motorsport Australia, that children under the age of sixteen don't necessarily have the strength and, in some ways, the ability of older competitors.
In light of his experience in dealing with motor sport competitors who are under the age of 16 years, I also accept the evidence of Mr Scott McGrath, technical manager of Motorsport Australia, that competitors under the age of sixteen are in a learning phase in the sport and need guidance. I accept his evidence that unlike adult competitors, competitors under the age of sixteen years are still growing.

[30]

Are conditions 36 and 37 not inconsistent with the purposes of the Motor Vehicle Sports (Public Safety) Act or the Motor Vehicle Sports (Public Safety) Regulation 2015?

For the reasons set out above: 1. I am satisfied that safety is a purpose of the Act and the Regulations; 2. I am not satisfied that allowing a competitive market is a purpose of the Act and Regulations.
For the reasons provided below, I am satisfied that conditions 36 and 37 are not inconsistent with the purposes of the Act and the Regulations.
Together, condition 36 and 37 provide that any races involving under 16-year-old competitors must only be held under a permit held by Motorsport Australia. This means that in NSW no races involving under 16-year-old competitors can be held under a permit held by AASA.
On the evidence before me, I am satisfied that Motorsport Australia has developed a comprehensive and graduated licensing structure to ensure the safety of under 16-year-old competitors. This includes: 1. mandating minimum age requirements for different categories of vehicles used in circuit racing; 2. mandating a specific circuit racing junior licensing structure; 3. stipulating that the initial application requirements and pre-licence conditions for the 'entry level' licence include a medical examination, a rule and safety focused lecture and an observed licence test; 4. specifying the requirements for a licence holder to maintain their current licence or to upgrade their licence to the next level; 5. specifying, where a category of vehicle is not listed under the minimum age requirements references in sub-paragraph (a), a maximum power to weight ratio for vehicles used in circuit racing; 6. applying the graduated licence structure in all jurisdictions nationwide.
By contrast, I am not satisfied that AASA's Junior Participants Policy is adequate to ensure the safety of competitors who are under the age of 16 years. On the evidence before me, I find that this policy is not comprehensive enough to satisfy me that there is a regulatory protection of the standard put in place by Motorsport Australia.
In making this finding and noting that safety is a primary purpose of the Act and Regulation, I give weight to the evidence of Professor Saillant, Mr Kristensen, Mr Whyte and Mr Smith that under 16 competitors require specific regulations to ensure their safety and additional support when competing in motorsports.
Although the age of competitors is not considered in the Act or Regulations, the minimum age of competitors was referred to by the Minister in his second reading speech as a matter that might be considered by the advisory committees.
I am also satisfied that during the existence of the Motor Vehicle Sports Licensing Advisory Committee and the Motor Vehicle Sports Advisory Committee, both committees considered issues relating to the minimum age of competitors.
I agree with the Office of Sport that it was clearly the legislature's intention for the advisory committees to consider the minimum age of competitors and that this matter was considered by the committees, as set out above. On this basis I am not satisfied that the Act or the Regulations would preclude the Minister from imposing conditions relating to a matter relevant to the age of competitors.
Given that these proceedings concern the legislative regime that currently exists in NSW, I give no weight to the applicant's submission that competitors who are under the age of sixteen years should be treated in the same way in all Australian jurisdictions. This is a question for the legislators to consider in any future reforms to the Act and the Regulations.
On the evidence before me and for the reasons provided above, I am satisfied that conditions 36 and 37 are not inconsistent with the purposes of the Motor Vehicle Sports (Public Safety) Act or the Motor Vehicle Sports (Public Safety) Regulation.