Member v National Sporting Organisation

The Applicant is an accredited Technical Official and member of the National Sporting Organisation (NSO). The NSO alleged that the Applicant had breached on two occasions the NSO’s Child Safeguarding Policy (Policy) by taking digital images on his personal phone of children participating in the sport’s authorised events. The Policy provided that digital images were not to be taken of children on a personal phone, camera or video camera unless prior written approval had been obtained from a parent or guardian and other mandatory requirements as to content and storage are complied with.

The Applicant said any breach of the Policy was inadvertent and unintentional. The Applicant acknowledged that he had taken images of members of his extended family on the first occasion at the request of the mother of the children and shared them only with the parent of the children. The mother subsequently confirmed her consent in writing. On the second occasion The Applicant took images at the start of an inaugural race because he wished to record for posterity the first race of its kind and his attendance at it. He did not publish any of the images on social media or publicly. The images were later destroyed.

Upon receipt of a Breach Offer sent by the NSO, the Applicant commenced arbitration proceedings disputing breach and the proposed sanctions on the basis that he was not aware of the terms of the Policy, the NSO failed to adequately inform and educate members of the terms and ambit of the Policy and the NSO failed to extend procedural fairness to him before electing to make the Breach Offer. The NSO submitted that it had made members (including the Applicant) aware of the new Policy on two occasions in 2022 and 2023. The Applicant did not dispute receipt of notification but was critical of the NSO in failing to make plain the mandatory obligation and detail of the Policy for the benefit of members.

The Tribunal determined that the Applicant had breached the Policy on two occasions but that on both occasions the Applicant’s conduct was inadvertent and innocent. The NST also determined that the Breach Offer made by the NSO was vague, unclear and incapable of acceptance by the Applicant. It recommended that in the future the NSO allow any respondent to a complaint to be heard before deciding on the disciplinary options available to it under the CDP. It had not adequately done so in this case. The Tribunal held that an appropriate sanction in the circumstances was that the Applicant immediately undertake a course of education provided by Sport Integrity Australia regarding Child Safeguarding and Protection and that he be suspended from officiating any NSO event involving children for a period of three months.