Professional Boxing and Combat Sports Amendment Bill 2013

Introduction Print

EXPLANATORY MEMORANDUM

General

The purpose of the Bill is to amend the Professional Boxing and Combat Sports Act 1985 to strengthen controls relating to the probity of industry participants.

Clause Notes

PART 1—PRELIMINARY

Part 1 of the Bill provides for preliminary matters including the purposes and commencement of the Bill.

Clause 1 sets out the main purposes of the Bill, which are as follows—

to amend the Professional Boxing and Combat Sports Act 1985 to—

require that certain specified requirements be met by a person before a licence can be issued to, or renewed by, the person under that Act; and

provide for the cancellation or suspension of a licence under that Act if certain specified requirements are not met by a licence holder; and

require a person acting as a timekeeper to be licensed; and

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enable the Chief Commissioner of Police to provide advice to the Professional Boxing and Combat Sports Board in respect of a person applying for, or holding, a licence under that Act; and

make consequential and other amendments; and

to make consequential amendments to the Casino Control Act 1991 and the Racing Act 1958.

Clause 2 provides for the commencement of the Bill on the day after the Bill receives the Royal Assent.

Clause 3 states that in the Bill the Professional Boxing and Combat Sports Act 1985 is called the Principal Act.

PART 2—AMENDMENT OF PROFESSIONAL BOXING AND COMBAT SPORTS ACT 1985

Part 2 of the Bill inserts, amends and repeals sections in the Professional Boxing and Combat Sports Act 1985.

Clause 4 substitutes the purpose of the Professional Boxing and Combat Sports Act 1985 (the Principal Act) so that upholding industry integrity is added alongside controlling professional boxing and combat sports, reducing the risk of malpractice and promoting safety.

Clause 5 inserts and substitutes definitions in section 5 of the Principal Act.

Subclause (1) inserts the new definitions of Chief Commissioner, prohibited person and protected information.

The definition of prohibited person defines circumstances that, if any of those circumstances apply to a person, make the person a prohibited person. Those circumstances are—

being convicted of an indictable offence and sentenced to imprisonment for 10 or more years or having a comparable conviction and sentence in another State or Territory; or

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being subject to a control order under the Criminal Organisations Control Act 2012 (either as an individual or as a member of a declared organisation) or a corresponding order in another State or Territory; or

being subject to an exclusion order made by the Chief Commissioner of Police under the Casino Control Act 1991 or the Racing Act 1958 or a corresponding order in another State or Territory.

The definition of protected information is defined to mean any intelligence information, document or thing the production or inspection of which is likely to—

reveal the identity of, or endanger the safety of, members of the police force, informants, or others involved in an investigation or subject to an investigation;

risk compromising an ongoing police investigation or the disclosure of police investigative methods; or

otherwise not be in the public interest.

Subclause (2) substitutes the definition of Department so that it means the Department of Transport, Planning and Local Infrastructure.

Clause 6 substitutes a new section 6 and inserts new sections 6A, 6B, 6C and 6D in the Principal Act.

New section 6(1), (3) and (4) provides for the Professional Boxing and Combat Sports Board (the Board) to issue or renew a licence to act as a promoter, trainer, match-maker, referee, judge or timekeeper. Section 6 of the Principal Act does not currently require a person acting as a timekeeper to be licensed. Timekeeper is defined in the Principal Act as a person who regulates the number and length of rounds, and the interval between rounds, for a professional contest. By requiring the licensing of timekeepers, new section 6 will replace existing powers under the Principal Act for the Board to keep a list of people who may act as timekeepers, and provides for timekeepers to be subject to the probity requirements being introduced by the Bill (see clause 12 of the Bill which repeals the current scheme applying to timekeepers).

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New section 6(2) provides for applications for a licence to be accompanied by prescribed documents, including a certificate specifying any criminal history for the applicant (e.g. a National Police Certificate). The existing requirements that the application set out any other prescribed information and be accompanied by the prescribed fee have been retained by new section 6.

New section 6(3) and (4) provide for the Board to exercise discretion (subject to new section 6(5) and (6)) when considering applications for a licence or to renew a licence. Section 6 of the Principal Act currently provides that the Board must issue a licence to a person who satisfies the prerequisites set out in the Regulations. Under new section 6, the basis for consideration of a licence or renewal application is extended so that in addition to being satisfied that prescribed prerequisites have been met by the applicant, the Board needs to be satisfied that an applicant is a fit and proper person, and that it is not contrary to the public interest to issue a licence to the applicant.

New section 6(5) requires the Board to not issue or renew a licence to a person if the Board becomes aware or is advised by the Chief Commissioner of Police (Chief Commissioner) under new section 6A(3)(a) that they are a prohibited person. A definition of prohibited person is inserted into the Principal Act by clause 5 of the Bill.

New section 6(6) sets out what the Board must consider when making a decision under new section 6(3) and (4). It requires the Board to give special consideration to any advice provided by the Chief Commissioner under new section 6A(3)(b) or (c). The Board must also have regard to any other information relevant to that application that is available to it, and consider any prescribed matters in order to determine whether the applicant is a fit and proper person, and if it would be contrary to the public interest to issue a licence to the applicant.

New section 6A provides for the Board to forward applications for a licence to the Chief Commissioner, and for the Chief Commissioner to give a written response to the Board within 28 days of receiving a copy of the application to advise that (as appropriate)—

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an applicant is a prohibited person, and specifying the circumstances that make the person a prohibited person; or

the Chief Commissioner is of the view that the applicant is not a fit and proper person for the purposes of issuing a licence, or that issuing a licence to the applicant would not be in the public interest, and providing the reasons for this advice; or

the Chief Commissioner has not identified any information that the Board should consider in relation to making a decision under new section 6; or

the Chief Commissioner will not be giving any advice in relation to the application.

New section 6A(4) also provides for the Chief Commissioner to use any information (including protected information) he or she considers relevant in order to provide advice to the Board. New subsection (5) provides that if the Chief Commissioner's advice to the Board is wholly or partly based on protected information then, for the purposes of giving the Board reasons under new section 6A(3)(b) or (c) the Chief Commissioner may either include protected information in the response to the Board (specifying what information is protected information) or not include protected information. If the Chief Commissioner elects to not include protected information in their response to the Board, the Board will be informed that it will not be given reasons for the advice to the extent that the advice is based on protected information.

New section 6B provides for the Board to request further information from an applicant before making a decision on an application made under new section 6. The section sets out how the Board should request the information, and that applicants will have 28 days or a time period specified in the request to respond. Applications will expire if a response is not received within the specified period. An applicant can make a fresh application at any time if their application expires.

New section 6C provides that the Board must give written notice of its decision, including reasons for that decision, to a person who has been refused a licence. However, under new section 6C(2), the Board must not disclose any protected information when giving reasons for its decision and, if the

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reasons for a decision are based on protected information, the written notice must specify that reasons for the Board's decision are based on advice from the Chief Commissioner.

New section 6D(1) sets out the minimum period of time that must elapse before a person can reapply for a licence if their application for a licence or renewal is refused because the Board has determined that they are not a fit and proper person to hold a licence, or that it would not be in the public interest to issue or renew a licence. If the application is refused for those reasons under new subsection (1) then the person cannot reapply for a licence for 12 months or a longer period of time as determined by the Board. New section 6D(2) provides that if a person has been refused a licence because they are a prohibited person, then that person cannot reapply until they are no longer a prohibited person.

Clause 7 amends section 8 of the Principal Act to require a person acting as timekeeper to hold a licence. Section 8 of the Principal Act is an offence provision requiring a person to not act as a promoter, trainer, match-maker, referee or judge unless the person holds a licence issued under section 6. Clause 7 amends section 8 of the Principal Act so that acting as a timekeeper is added to the list of roles requiring a licence under the Principal Act.

Clause 8 repeals section 9(2A) of the Principal Act, which requires that promoters only engage persons to act as timekeepers if they are on the Board's list of timekeepers. Section 9(2A) will not be required once timekeepers are required to be licensed by the Board. Section 13(1)(b) of the Principal Act, requires that a promoter ensure that licences are held by all persons associated with their promotion or contest in any capacity for which licences are issued under the Act (unless specific exceptions apply). As a consequence of the amendments made to section 8 of the Principal Act by clause 7 of the Bill, section 13(1)(b) will require promoters to only engage persons to act as timekeepers if they are licensed.

Clause 9 inserts new sections 9AA to 9AD into the Principal Act.

New section 9AA provides for the Board to cancel a licence immediately upon becoming aware that the holder of the licence is a prohibited person, and to give written notice of the cancellation as soon as practicable after doing so.

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New section 9AA also clarifies that new sections 9AB and 9AC (described below) as well as section 9A (that provides for the Board to vary, suspend or cancel a licence or permit for reasons other than probity) do not apply if a licence is cancelled because the licensee is a prohibited person.

New section 9AB establishes a process for the Board to conduct an inquiry if advised by the Chief Commissioner, or otherwise has reasonable grounds to believe, that a licensee is not a fit and proper person or that it is not in the public interest for that person to continue to hold a licence. New section 9AB(2) provides that the Chief Commissioner may rely on any information, including protected information, when giving advice under that section. The Board may suspend the relevant licence while the matter is being investigated. New section 9AB(4) provides that the Board must give written notice to the licensee that: an inquiry is to be held because the Board has become aware of information that indicates they are not a fit and proper person or that it is not in the public interest for that person to continue to hold a licence; the date and time of the inquiry; if the Board has suspended their licence while the matter is being investigated, that their licence is suspended until the investigation is completed; and they may make a written or verbal submission to the Board. To conduct an inquiry, the Board must be constituted by more than half of its current members (new subsection (5)). New section 9AB(6) provides that the Board may consider all relevant information given to it, and may hear or receive written or verbal submissions from the affected licensee and any other person who has information relevant to the inquiry, is bound by the rules of natural justice, and may otherwise regulate its own procedure.

New section 9AC sets out the decisions that the Board may make following an inquiry under new section 9AB – that is, vary or add to the conditions imposed on the licence, suspend the licence for any period the Board considers appropriate, cancel the licence, or continue to allow the person to hold the licence subject to the same terms and subject to any conditions that applied to the licence prior to the inquiry. New subsections (2), (3), (4) and (5) provide for the Board to give notice of its decision, including reasons for that decision if the Board varies or adds to the conditions of a licence or suspends or cancels a licence. The Board must not disclose any protected information when giving reasons for its decision and, if the reasons for a decision are based on protected information, the written notice must

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specify that reasons are based on advice from the Chief Commissioner.

New section 9AD(1) sets out the minimum period of time that must elapse before a person can reapply for a licence if a licence has been cancelled because the Board has determined that the person is not a fit and proper person, or that it would not be in the public interest to the person to hold a licence. If the licence is cancelled for the reasons specified in new subsection (1) then the person cannot reapply for 12 months or a longer period of time as determined by the Board. New section 9AD(2) provides that if a licence has been cancelled because a person is a prohibited person, then that person cannot reapply until they are no longer a prohibited person.

Clause 10 amends the heading of section 9A of the Principal Act to distinguish that section from new sections 9AB and 9AC.

Clause 11 amends section 13 of the Principal Act. Clause 11(1) of the Bill amends section 13(1) of the Principal Act to make it a duty of a promoter to ensure that, in respect of every professional contest that they promote, they must ask prospective employees, as well as people with whom the promoter intends to enter into a business arrangement or business relationship, if they have ever been denied a licence or had a licence cancelled under the Act.

Clause 11(2) of the Bill inserts a new subsection (1A) in section 13 of the Principal Act. New subsection (1A) provides that a promoter must not knowingly employ or enter into a business arrangement or business relationship with any person who has been denied a licence or had a licence cancelled under the Principal Act in respect of every professional contest that he or she promotes.

Clause 12 repeals Division 4A of Part II of the Principal Act, which provides for the Board to keep a list of persons who may act as timekeepers. Division 4A of Part II of the Principal Act is no longer required as persons acting as timekeepers will now have to be licensed. Clause 6 of the Bill substitutes section 6 of the Principal Act to provide for the Board to issue or renew a licence under section 6 including a licence to act as a timekeeper. Clause 7 of the Bill amends section 8 of the Principal Act to provide that a person must not act as a timekeeper unless the person is licensed under section 6 of the Principal Act.

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Clause 13 substitutes section 14C(1) and (3) of the Principal Act to amend the delegation powers of the Board. As a consequence of this amendment, the Board will no longer be able to delegate the power to determine an application for a licence, or a renewal of a licence, to an employee of the Department as currently provided under sections 14C(1)(b)(ii) and 14C(3)(b) of the Principal Act. These powers are no longer appropriate for delegation to employees in the context of the Board's increased role in considering the probity of persons seeking a new or renewed licence. Also, the Board will not be able to delegate its new inquiry powers under new sections 9AB and 9AC to a single member of the Board. Delegations relating to registration of contestants will remain unchanged. Clause 13(2) consequentially amends section 14C(2)(b) of the Principal Act as a consequence of the amendments made by this Bill requiring persons acting as timekeepers to be licensed.

Clause 14 inserts a new section 14E into the Principal Act to create a duty for the Board and staff of the Department assisting the Board to not disclose information collected for the purpose of performing functions or exercising powers under new sections 6 to 6D and 9AA to 9AD unless the disclosure is for the purposes of the Principal Act or to perform functions or duties under the Principal Act. A penalty of up to 30 penalty units may be imposed for a contravention of this offence.

Clause 15 inserts a new section 14F into the Principal Act to provide for the Chief Commissioner to disclose information relevant to the suitability of a person to hold a licence under the Principal Act to the Board and to staff of the Department assisting the Board.

Clause 16 substitutes the heading to Part III of the Principal Act from "Delegation by Minister" to "Delegations", to recognise the new provision being inserted into Part III of the Principal Act by clause 18 which provides for delegation by the Chief Commissioner.

Clause 17 repeals section 15(8)(a) and (b) and omits references to licences in sections 15(8)(e) and (f) of the Principal Act in order to remove the provision for appeals to the Minister in relation to a promoter's licence. A person whose interests are affected by a decision of the Board relating to a promoter's licence may apply to VCAT for a review of the decision under section 16(1) of the Principal Act in the same way as persons whose interests are

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affected by a decision of the Board relating to other licences. Provision for appeal to the Minister in relation to a permit for a promotion will not change.

Clause 18 inserts a new section 15A into the Principal Act to provide for the Chief Commissioner to delegate any power, duty or function of the Chief Commissioner under the Principal Act, other than the power of delegation, to a member of the police force at or above the rank of Inspector.

Clause 19 inserts a new section 16AA into Part IV of the Principal Act. New section 16AA provides a definition of probity requirements, which is defined as requirements to be met by a person in order to hold a licence, being—

that the person is a fit and proper to hold a licence;

that it is not contrary to the public interest for the person to hold a licence.

Clause 20 amends section 16 of the Principal Act by—

substituting Victorian Civil and Appeals Tribunal in the heading and body of the section with the acronym "VCAT". VCAT is defined by section 38 of the Interpretation of Legislation Act 1984; and

removing reference to a decision by the Minister under section 15(8) of the Principal Act to reflect amendments made by clause 17 of the Bill; and

inserting a new subsection (1)(da) to provide for applications to be made to VCAT for review of decisions of the Board to ban a person from reapplying for a licence for a period of time greater than 12 months; and

inserting a new subsection (3) to clarify that applications cannot be made to VCAT for a review of a decision of the Board if the person affected by that decision is a prohibited person. Note that this clause does not prevent VCAT from considering whether a person meets the definition of prohibited person as a preliminary question for determining whether it can hear an application under section 16(1) of the Principal Act.

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Clause 21 inserts new sections 17 to 17F into the Principal Act to set out a special review procedure to be followed by VCAT when reviewing a decision of the Board where that decision was based on advice from the Chief Commissioner and that advice was based on protected information.

New section 17 provides for VCAT to ask the Board whether a decision was based on advice from the Chief Commissioner and, if that is the case, to then ask the Chief Commissioner if that advice was based on protected information. This advice will determine whether new sections 17A through 17F apply to VCAT's review of the decision. VCAT must also ask the Chief Commissioner if the protected information was given to the Board, as this will determine which aspects of new sections 17A, 17B and 17C apply to its review of the Board's decision.

New section 17A provides for VCAT to appoint special counsel to represent the interests of the applicant. Special counsel must also be appointed to represent the Board if protected information was used to provide the Board with advice but the protected information was not given to the Board by the Chief Commissioner. A special counsel must be a barrister within the meaning of the Legal Profession Act 2004 and in the opinion of VCAT have appropriate skills and ability to represent the interests of the party at the proceeding. New section 17A sets out controls for how the special counsel will represent the party in order to prevent release of protected information.

New section 17B provides for VCAT to conduct a hearing when protected information is involved. The Chief Commissioner will be joined as a party to the proceeding if the decision of the Board that is subject to review was based on advice from the Chief Commissioner and that advice was based on protected information. Proceedings may be held in closed session excluding the applicant and the public and, in circumstances where the Chief Commissioner did not give protected information to the Board, members of the Board. VCAT must first determine whether the information has rightly been classified as protected information. Each party entitled to be present may make submissions as to whether material supporting advice from the Chief Commissioner to the Board is protected information. If VCAT determines that none of the material is protected information, the remainder of the proceedings are no

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longer to be held in a closed session and any party excluded from the closed session must be admitted.

New section 17C sets parameters for VCAT to make its decision where protected information is involved in order to prevent release of that information. If VCAT decides that any of the material presented in a closed session under section 17B forms protected information, then the remainder of the proceedings must remain closed to the extent that it relates to the protected information.

Each party that is entitled to be present may make submissions as to—

what weight should be given to the protected information and any other evidence;

the character of the applicant, based on evidence that indicates whether the applicant meets the probity requirements; and

whether the licence should be issued, renewed, re-instated, the ban on applying for a licence reduced to 12 months, or the condition of the licence determined, varied or revoked (as the case may be).

When making its determination, VCAT must decide—

what weight to give the protected information and any other evidence;

whether the applicant meets the probity requirements, based on the character of the applicant; and

whether the licence should be issued, renewed, re-instated, the ban on applying for a licence reduced to 12 months, or the condition of the licence determined, varied or revoked (as the case may be).

VCAT must take all steps and precautions to prevent release of protected information. If special counsel wish to seek further instructions from the party whose interests he or she is representing they must submit written questions for approval by VCAT, which will hear submissions from the Chief Commissioner on their content. Any order issued by VCAT in relation to a decision where protected information is involved must only state whether the decision of the members of the Board is upheld or overturned and, if the Board's decision is upheld, that

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the applicant has failed to meet the probity requirements for holding a licence.

New section 17D provides for the Board to change its decision at any time before a final determination has been made by VCAT on a matter involving protected information, and may (as the case may be)—

issue, renew, re-instate the licence;

reduce the ban on applying for a licence to 12 months; or

vary or revoke conditions placed on a licence.

The Board must advise VCAT of its decision, and VCAT may make any order it thinks fit in the disposition of proceedings. Action under this section will have the effect of bringing the proceedings to a close.

New section 17E provides for the Chief Commissioner to request, at any time before a final determination has been made by VCAT on a matter involving protected information, that the Board reconsider the application that is the subject of review without relying on any advice that was based on protected information. The Chief Commissioner must advise VCAT of the request that has been made to the Board, and VCAT must remit the matter for reconsideration by the Board in accordance with the Chief Commissioner's request. VCAT may also make any order it thinks fit in the disposition of proceedings. Action under this section will have the effect of bringing the proceedings to a close. A party could make a fresh application to VCAT for review if they were not satisfied by the Board's decision after reconsidering the application (see section 16 of the Principal Act).

New section 17F makes general provisions for hearing matters involving protected information. VCAT must be constituted by a presidential member for hearings under new sections 17B and 17C. Subdivision 1 of Division 3 of Part 3 ("Obtaining reasons for decisions") and section 49 ("Decision-maker must lodge material") of the Victorian Civil and Administrative Tribunal Act 1998, as well as section 8 of the Administrative Law Act 1978 ("Reasons for decision to be furnished by tribunal on request by party concerned"), do not apply to a proceeding that involves protected information.

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Clause 22 amends section 22 of the Principal Act to further provide for the Governor in Council to make regulations in order to give effect to provisions of the Bill. Clause 22(1) substitutes paragraph (b) of section 22(1) of the Principal Act to enable regulations to be made for the purposes of specifying what documents need to accompany an application for a licence. Existing section 22(1)(b) of the Principal Act provides for regulations in respect of keeping a list of persons who may act as timekeepers—existing paragraph (b) is therefore redundant as amendments to be made by the Bill will require persons acting as timekeepers to be licensed (see clauses 6 and 7). Clause 22(2) inserts a new paragraph (o) into section 22(1) of the Principal Act which will enable regulations to be made specifying matters relevant to considering whether a person is a fit and proper person and whether it would be contrary to the public interest for a person to hold a licence. Clause 22(3) of the Bill substitutes section 22(2) of the Principal Act to provide sufficient scope for regulations to refer to specific cases or a class of case (e.g. setting the form of an application for a particular class of licensed industry participant).

Clause 23 inserts new Division 3 into Part VIII of the Principal Act to provide transitional provisions for certain aspects of the Principal Act once amendments proposed in the Bill take effect.

New section 34 defines, for the purpose of Division 3, the Amending Act which means the Professional Boxing and Combat Sports Amendment Act 2013, and the commencement day which means the day that the Amending Act comes into operation.

New section 35(1) provides for a person who was on the Board's list of timekeepers pursuant to section 13A of the Principal Act, which will be repealed by clause 12 of the Bill, to continue to act as a timekeeper as though that repealed provision was still in effect until the sooner of the following occurs: 3 months elapse after commencement of amending provisions; or the Board has made a decision regarding that person's application to be licensed as a timekeeper. New section 35(2) provides for a promoter to continue to engage persons in accordance with new section 35(1) without breaching the conditions of their licence.

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New section 36 provides for applications for a licence that have not been determined by the Board before the Amending Act comes into operation to be determined in accordance with new section 6 as substituted by clause 6 of the Bill.

New section 37 provides transitional arrangements for applications to the Minister for review of a decision by the Board in relation to a promoter's licence under section 15(8) of the Principal Act, which are powers that will be removed by clause 17 of the Bill. Any applications made but not determined before the Amending Act comes into operation will be determined as though the relevant paragraphs of section 15(8) were in operation as they were before the commencement day.

PART 3—AMENDMENT OF OTHER ACTS

Part 3 of the Bill amends other legislation in order to facilitate amendments to the Principal Act proposed in the Bill.

Clause 24 inserts new section 74(4) into the Casino Control Act 1991 to provide for the Chief Commissioner to inform the Board if an exclusion order has been made under section 74 of that Act and the person who is subject to that order has a licence, has applied for a licence or has applied for its renewal under the Principal Act. This allows the Chief Commissioner to advise the Board that a person is a prohibited person by virtue of an exclusion order made under section 74 of the Casino Control Act 1991.

Clause 25 inserts section 35DA into the Racing Act 1958 to provide for the Chief Commissioner to advise the Board if an exclusion order has been made under that Act and the person who is subject to that order has a licence, has applied for a licence or has applied for its renewal under the Principal Act.

PART 4—REPEAL OF AMENDING ACT

Part 4 of the Bill provides for the repeal of the amending Bill.

Clause 26 provides for the automatic repeal of the Bill on the first anniversary of its commencement. The repeal of the Bill does not affect in any way the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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