Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387

Administrative and Equal Opportunity Division

Dr R Dubler Sc, Senior Member; and S Higgins, Senior Member

In sum: The Appeal Panel set aside the decision of the Tribunal to allow Mr Fisher to be registered as a combatant under the Combat Sports Act 2013 (CS Act), following criminal convictions and imprisonment for serious violent offences against a former domestic partner. The Tribunal took into account irrelevant considerations (such as the positive impact on the Fishers’ mental health and his engagement with rehabilitation) and failed to take into account relevant considerations (the importance of promoting appropriate culture that abjures acts of severe violence against women). In doing so, the Tribunal misconstrued the meaning of the ‘fit and proper’ test in s 13(1)(b), CS Act. The Tribunal failed to engage with a central argument put by the Authority. In redetermining the matter, the Appeal Panel found Mr Fisher did not meet the requirements in s 13(1)(b) CS Act.

Facts: Mr Fisher was an amateur boxer who was registered under the CS Act and had achieved significant success in amateur sports contests regulated by the CS Act. In 2017, Mr Fisher pleaded guilty and was imprisoned for serious violent offences, intimidation and sexual violence against his former domestic partner. In October 2021, Mr Fisher was on parole for these offences, when the appellant (the Authority) refused to register him as a combatant in the amateur boxing registration class, as it was not satisfied he met the specifications in s 13(1) CS Act to be a ‘fit and proper person’ due to his convictions for serious violence. In an administrative review of that decision, the Tribunal set aside the Authority’s decision and granted Mr Fisher’s application to be registered under the CS Act. The Authority appealed the decision of the Tribunal on two grounds. Firstly, contending that it had fallen into error in misconstruing the statutory ‘fit and proper person’ test to be applied under s 13(1)(b) and thereby misdirected itself. Secondly, the Tribunal failed to deal with the central plank of the Authority’s submissions concerning the proper construction of that test.

Held (allowing the appeal):

(i) The Authority argued the term ‘fit and proper’ is a question of statutory construction, which should be construed in the context of the objects and purpose set out in s 3 of the CS Act. In failing to have regard to the construction put by the Authority (which was directed to the effect on the promotion of the development of the combat sports industry and public confidence in the industry as a whole), the Tribunal fell into legal error by failing to engage with the Authority’s central argument: [37] to [43].

(ii) In particular, the Tribunal fell into error when it rejected, as irrelevant, the importance of maintaining public confidence in the combat sports industry; and the importance of promoting an appropriate culture that abjures or takes seriously acts of severe violence against women: [44] to [48].

(iii) The legislative objective of maintaining public confidence in the combat sports industry, pursuant to s 3(1)(d) CS Act, is a relevant factor in deciding whether or not an applicant is a ‘fit and proper person’. The way in which the public expects a regulated industry to take seriously the question of domestic and family violence in Australia and the need for action to prevent such violence should be considered

[48] to [54].

(iv) The Tribunal’s decision to register Mr Fisher as a combatant took into account irrelevant considerations. It relied on evidence filed by Mr Fisher, which focussed on his character references, engagement with rehabilitation and the positive mental health benefits he gained from training. These were entirely irrelevant to the assessment of his fitness and proprietary: [48] to [54], [67].

(v) The fit and proper person test is, fundamentally, directed to the character and reputation of an applicant. Whether or not Mr Fisher would receive benefits to his mental health and rehabilitation from competing in amateur boxing is not relevant to that test. The Tribunal, erroneously, did consider such personal benefits to be relevant. Accordingly, it erred in its application of the term ‘fit and proper’ within the meaning of s 13(1)(b) CS Act: [81] to [84].

(vi) By unduly concentrating on the proposition that Mr Fisher, having violently sexually assaulted a former girlfriend, only had at its ‘highest’ an ‘indirect connection’ to the sport and boxing industry, because the act of violence did not occur during a boxing match, erroneously narrowed the construction of the term “fit and proper”: [92].

(vii) Mr Fisher’s acts of violence were serious acts of sexual violence undertaken in a cruel, intimidating manner towards a 20-year female of less physical strength. The Tribunal’s mischaracterisation of this behaviour denotes error. The fact the crimes occurred outside the context of a supervised match and regulated industry made them “all the more deplorable.” Such serious criminal conduct is generally suggestive of a lack of good character, in and of itself, and could lead to a finding that a person is not fit and proper per s 13(1)(b) CS Act: [95], [96].

(viii) Relevantly, a combatant would be expected to properly follow the laws of boxing, including harm minimisation, minimum standards of honesty and integrity and further. Failing these may bring the whole industry into disrepute. Mr Fisher’s serious offending fell outside the expectations of the Authority: [97].

(ix) The Appeal Panel reconsidered the matter, where all the evidence before the Tribunal was also available to the Appeal Panel. In assessing Mr Fisher’s fitness and propriety, it considered the evidence concerning his conduct in prison demonstrating a “reformed character” had limited use, where the confines of prison could not aptly reflect his character upon reintegration into society. The acts of violence were considered too extreme, and his release from prison was “too soon”, for the Appeal Panel to be satisfied Mr Fisher met the ‘fit and proper’ requirements in s 13(1)(b) CS Act: [110] to [126].