Patricia Arnold v Queensland Racing Integrity Commission
[2023] QCAT 411
•24 October 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Patricia Arnold v Queensland Racing Integrity Commission [2023] QCAT 411
PARTIES:
PATRICIA ARNOLD (applicant)
v
QUEENSLAND RACING INTEGRITY COMMISSION (respondent)
APPLICATION NO/S:
OCR010-21
MATTER TYPE
Occupational regulation matters
DELIVERED ON:
24 October 2023
HEARING DATE:
6 December 2022
HEARD AT:
Brisbane
DECISION OF:
Member Carrigan
ORDERS:
1. The Tribunal allows the amendment sought by the Applicant to the Application to review a decision filed on 4 January 2021 to add the additional claim in the following terms:
A Declaration pursuant to s 60 of the QCAT Act that QRIC is not empowered or authorised by the terms, objects and purposes of the Racing Integrity Act to deny a thoroughbred trainers’ licence on the bare ground the applicant has been convicted of an animal welfare offence without regard to or any consideration of the nature, seriousness and circumstances of that offence in declaring accordingly that Standard B1.4 is ultra vires.
2. The Tribunal directs that the Applicant file in the Tribunal two (2) copies and is to give to the Queensland Racing Integrity Commission one (1) copy of the amended Application containing the terms of the amendment as set out in the paragraph above on or before 4.00 pm Friday, 17 November 2023.
3. The decision of the Queensland Racing Integrity Commission made originally on 19 October 2020 and subsequently by an internal review on 25 November 2020 is confirmed.
4. The Application to review a decision filed in the Tribunal on 4 January 2021 including the amended Application as directed in Orders (1) and (2) above is dismissed.
5. In the event that any party to the proceedings seeks an order for costs, then that party is to file in the Tribunal two (2) copies and is to give to the other party one (1) copy of its submissions on costs including submissions relating to:
(a) the various matters in s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld);
(b) specifying the quantum of costs claimed and the way in which those costs have been calculated, including itemising all costs and saying in respect of each cost item how or why that cost was incurred, the nature of the cost incurred including any rate or scale applicable to the calculation on that cost;
(c) a copy of any retainer or cost agreement relevant to the claim of costs; and
(d) any other matters relevant to the claim for costs on or before 4.00 pm on Friday, 17 November 2023;
6. Any party who receives submissions on costs from the other party may file in the Tribunal two (2) copies and is to give to the other party one (1) copy of their submissions, if any, in reply to the other party’s submissions on or before 4.00 pm on Friday, 1 December 2023;
7. Unless any party requests an oral hearing of any application for costs, the Tribunal will determine the cost issue on the submissions filed by the parties, or either of them, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) without an oral hearing.
8. If neither party files in the Tribunal submissions on costs on or before 4.00 pm on Friday, 17 November 2023 then each party to the proceedings must bear that party’s own costs for the proceeding.
9. The parties have liberty to apply to the Tribunal on fourteen (14) days written notice to the other party in respect for any further order or direction in respect of orders 1 to 8 (inclusive) above.
CATCHWORDS:
ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – where application made for Thoroughbred trainers’ licence – whether applicant a “fit” and “proper" person – whether Standard B1.4 is ultra vires – whether Standard B1.4 also will requires an applicants circumstances relating to a conviction to be taken into account.
Animal Care and Protection Act 2001 (Qld), s 17
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 10, s 27, s 28, s 63, s 64, s 65
Racing Integrity Act 2016 (Qld), s 9, s 18, s 19, s 20, s 24. s 60
The Standard for Licensing Scheme Thoroughbreds (V2.02), B1.3 and B1.4Acts Interpretation Act 1954 (Qld), s 14A
Humphries and Another v The Proprietors “Surfers Palms North” Group Titles Plan 1955 (1994) 179 CLR 597 at paragraph 14
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380
APPEARANCES & REPRESENTATION:
Applicant:
Mr D Laws of Counsel instructed by Slade Waterhouse, solicitors.
Respondent:
Mr S A McLeod KC instructed by M Johnston of the Queensland Racing Integrity Commission.
REASONS FOR DECISION
Patricia Arnold (the Applicant) applied for a Thoroughbred Trainers Licence which was refused by the Queensland Racing Integrity Commission. (the Commission).
The Applicant now seeks to review the decision of the Commission to refuse the grant of the Thoroughbred Trainers Licence.
Background Facts
The Applicant was born on 26 August 1957 and was aged 65 years as at the date of hearing of these proceedings in the Tribunal.
In 2000 the Applicant purchased a 47-acre property at 23A Videromi Street, Bundamba, near Ipswich, Queensland. That property is located next to the Ipswich racetrack.
The Applicant held a Thoroughbred Trainers Licence from 2000 to about 2010.
On 6 July 2010 Racing Queensland suspended the Applicant’s trainers licence. The notice of suspension stated:
the welfare of animals is at risk and the stables are not suitable to be approved for the training and care of thoroughbred racehorses. You will cease training and racing immediately
The Applicant was charged with five (5) counts under the Australian Rule of Racing 175(o)(i) relating to failing to exercise reasonable care, control or supervision of a horse so as to prevent an act of cruelty to the animal.
On 23 July 2010 Adjudicating Steward, Mr Gary Casey, completed an enquiry into the five (5) charges relating to the condition of a number of horses on the Applicant’s property. The Applicant pleaded guilty to the five (5) charges however the Adjudicating Steward found three (3) of these charged were proven and dismissed the remaining two (2) charges. The Applicant was then further charged with an additional count relating to horses under her control in that she failed to provide proper and sufficient nutrition for a horse. The particulars of that charge were that the Applicant failed to supply proper and sufficient nutrition for numerous horses on the property while under her care. That charge was found proven. The Applicant was disqualified for a period of 12 months commencing on 23 July 2010 until 23 July 2011. The Report of those proceedings concludes as follows:[1]
At the conclusion of the hearing of the evidence Mr Casey disqualified Ms Arnold for a period of twelve (12) months commencing 23 July 2010 until mid-night 23 July 2011.
The RQL Steward present recommended that the RQL Licensing Committee be advised that upon the completion of Ms Arnold’s disqualification she not be relicensed in any capacity.
[1]Respondent's Documents supplied pursuant to s 21 of the QCAT Act at pages23 & 24.
On 29 March 2019 the RSPCA executed a search warrant on the Applicant’s property at Bundamba. The Commission’s Principal Veterinarian Officer, Dr E Bruce Young, inspected horses on the Applicant’s property. The Report of that inspection says that it was to investigate some welfare concerns that had been reported regarding thoroughbred horses believed to be a pain on Trish Arnolds property. It was noted by Dr Young that there was some “50 odd horses” of various ages and breeds present on the property. The property was described as in a very “run down” condition with many of the stable/yarding horses in wet, muddy and squalid conditions. Horses in paddocks had little feed and the fences were overall in a state of disrepair. Three horses were found to have significant medical issues which required urgent attention. The Report provided a description of those horses as follows:
Horse 1 - Arabian cross rising 2 y o located in the main stable block of the complex. On examination this horse was found to have a chronic injury in the near fore shoulder region. The horse was unable to adequately weight bear. Palpation of the area was unable to conclusively define what bony structures were involved. The prognosis was in my opinion very grave with little chance of the horse being able to adequately move, weight bear and graze and hence have a comfortable sound paddock life.
My recommendation was that this horse should be humanely destroyed on the property rather than transported to a facility due to its limited stability, which could risk further injury if moved especially with older horses.
Horse 2 - “Maovesa”, 6 y o retired Thoroughbred chestnut mare. This horse was found to have a significant injury to the off side eye. The eye was partially closed with a significant ocular discharge. Closer examination revealed the injury was involving most of the corneal surface. Arnold indicated that the injury had occurred some four days earlier and that a veterinarian was consulted but did not examine the eye. Arnold indicated that she had been putting ointment in the eye.
In my opinion the eye warranted immediate intensive hospitalised treatment if any attempt to restore vision was to be achieved. Another alternative would be for the removal (ablation) of the eye. If neither of these options was achievable then the mare due to the ongoing pain and suffering should be humanely destroyed. Arnold indicated she was going to have the mare euthanised.
Horse 3 - “Cooma Creek” 15 y o retired thoroughbred bay mare. This mare was found in a muddy, urine and faeces soaked yard and stable area. A light dressing was observed mid cannon on the off hind limb. The mare was initially found to be lying down in the muddy stall. When standing the pastern of the off hind was noted to be completely collapsed and the toe pointing upward indicating significant if not complete disruption of the limbs flexor/suspensory tendon structures. Significant swelling and lameness of the opposing hind limb as a result of providing additional support was also noted.
The mare was also found to have an injury to the off side eye most likely as a result of spending significant time lying down in squalid mud trying to seek pain relief from standing.
Given the hopeless prognosis of recovery from this injury it is my opinion that in order to prevent further pain and suffering this mare should be destroyed as soon as possible. The mare was subsequently destroyed by the “knackery man” while we were still on the property. It is my understanding that this was organised by Arnold.
The Report concluded with Dr Bruce Young expressing the opinion that Trish Arnold as the person in charge/custodian of these animals has been negligent regarding her duty of care to the horses. The Report also stated that Arnold was in breach of the duty of care to provide adequate and timely treatment of the injuries of these horses which resulted in exposing them to unjustifiable, unnecessary and unreasonable pain and suffering.
On 7 January 2020 the Applicant made an Application to the Commission for a Thoroughbred Trainers Licence. The Applicant also supplied character references, photographs of the stables and a criminal history check certificate dated 15 January 2020.
On 21 January 2020 the Applicant was charged with offences arising out of the execution of the RSPCA warrant and which were based on the Report from Dr Young.
On 24 March 2020 Mr Neil Boyle conducted a Stewards inspection of the stables at the Applicant’s property. This was said to be in connection with the Application for a Thoroughbred Trainers Licence.
On 19 October 2020 the Commission decided to refuse the grant of the Applicant’s Application for a Thoroughbred Trainers Licence. The grounds of that refusal were that the Applicant was not a fit and proper person to hold a licence. The criteria for a fit and proper person is specified in The Standard for Licensing Scheme Thoroughbreds (the Standard) at paragraph B1.3.
The Applicant sought an internal review of that decision.
On 25 November 2020 the internal review of the decision was completed and the decision confirmed the original decision that the Applicant be refused a Thoroughbred Trainers Licence on the basis that she was not a fit and proper person. Reliance again was placed on the criteria in the Standard B1.3. The Applicant received that decision on that date.
On 4 January 2021 the Applicant filed in the Tribunal an Application to Review the Decision made on 25 November 2020.
On 5 March 2021 proceedings were held at the Ipswich Magistrates Court relating to the execution of the RSPCA search warrant at the Applicants previously property on 29 March 2019. Five (5) charges were brought against the Applicant relating to the RSPCA’s search warrant. The Applicant pleaded guilty to 2 charges of animal welfare offences resulting from the Report of Dr Young. The charges to which the Applicant pleaded guilty were as follows;
Charge One: That on the 29th day of March 2019 at Bundamba in the Magistrates Court District of Ipswich in the State of Queensland one Patricia Arnold being a person in charge of animals, namely one Arabian cross type horse and one chestnut coloured mare Thoroughbred type horse named “Maovesa”, did breach her duty of care to the animals by failing to take reasonable steps to provide for the animals needs for accommodation or living conditions in a way that is appropriate.
Particulars: The defendant confined the horses to a stable, where there was limited light and ventilation, and where they could not display normal patterns of behaviour.
Charge Two: That between the 14th day of March and the 30th day of March 2019 at Bundamba in the Magistrates Court District of Ipswich in the State of Queensland one Patricia Arnold being a person in charge of animals, namely one Arabian cross type horse, one chestnut coloured mare Thoroughbred type horse named “Maovesa” and one bay coloured mare Thoroughbred type horse called “Cooma Creek”, did breach her duty of care to the animals, contrary to sections 17(3)(a)(iv) of the Animal Care and Protection Act 2001, by failing to take reasonable steps to provide for the animals needs for treatment of disease or injury in a way that is appropriate.
Particulars:
In relation to the Arabian cross type horse, the defendant failed to provide appropriate treatment for an injury to the horses left shoulder.
In relation to the chestnut coloured mare Thoroughbred type horse named “Maovesa”, the applicant failed to provide appropriate treatment for an injury to the horses right eye.
In relation to the bay coloured mare Thoroughbred type horse named “Cooma Creek”, the defendant failed to provide appropriate treatment for an injury to the horses right hind a limit, and an injury to the horses right eye.
The Magistrate ordered the Applicant to be placed on probation for
two (2) years. A conviction was not recorded. However, a prohibition order was made by the Magistrate under the Animal Care and Protection Act 2001 (Qld) prohibiting the Applicant until 4 March 2024 from possessing, purchasing or acquiring any horses other than that approved by the RSPCA.
It appears that at about that time the Applicant had an approval from the RSPCA Qld Chief Inspector to have “20 horses” as an exception to the prohibition order made by the Magistrate.
In December 2021 the Applicant purchased a 188-acre property at 1295 Noosa Road, Tandur, Queensland to house horses. The Applicant considers this property far superior and newer than the Bundamba property. It is an equestrian centre and a four-star equine facility which is said by the Applicant to be just under the Olympic standard.
Tribunal’s Jurisdiction in these Proceedings
The Tribunal has jurisdiction which it is empowered with by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the “enabling Act”.[2]
[2]QCAT Act s 9.
The Racing Integrity Act 2016 (Qld)[3] (RI Act) provides that a person who has been given a review notice for an internal review decision may apply to the Tribunal as provided under the QCAT Act for a review of the internal review decision.[4]
[3]Reprint current from 31 October 2022 to 11 December 2022.
[4]Racing Act s 246.
On 4 January 2021 the Applicant filed in the Tribunal an Application to review the internal review decision of the Commissioner made on 25 November 2020[5]. The internal review decision confirmed that the earlier original decision of the Commissioner made on 19 October 2020 which is taken to be the internal review decision for the purpose of the Tribunal proceedings.[6]
[5]QCAT Act s18.
[6]Racing Act s 245(4).
For the purposes of the Tribunal’s jurisdiction in these proceedings the RI Act is the “enabling Act”.
The review jurisdiction of the Tribunal requires it to decide the review in accordance with the RI Act and the QCAT Act and perform the functions conferred on the Tribunal by those Acts. The Tribunal has all the functions of the Commission for the reviewable decision being reviewed.[7]
[7]QCAT Act s 19.
The Tribunal is required to review the reviewable decision by way of a fresh hearing on the merits and to produce the correct and preferable decision.[8]
[8]QCAT Act s 20.
In conducting the review of the reviewable decision the Tribunal may:[9]
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with directions the Tribunal considers appropriate.
[9]QCAT Act s 24.
The Development of Issues During These Proceedings
The original decision of the Commissioner made on 19 October 2020 refused the application for a Thoroughbred Trainers Licence lodged with the Commissioner by the Applicant. The decision relied on The Standard for Licensing Scheme Thoroughbreds (the Standard) which by B1.3 provided for the assessment of whether the Applicant was a fit and proper person to be granted a licence. The decision to refuse the licence stated:
on the basis of the above material, QRIC determined that Ms Arnold’s application for a Thoroughbred Trainers Licence be refused. Ms Arnold’s ongoing history of serious animal cruelty is reason to exclude her from holding a licence as she is not considered a “fit” and “proper” person under the Standards for Licensing Scheme Thoroughbreds, B1.3 Suitability of Licence holders.
The Application to review the decision filed in the Tribunal was concerned with the assessment whether according to Standard B1.3 the Applicant was a fit and proper person. The Applicant contended that the assessment by the Commissioner in the original decision was incorrect.
Subsequently on 5 March 2021 the Applicant entered a plea of guilty to the following charges heard in the Magistrates Court of Queensland at Ipswich:
(a)Failed to provide appropriate accommodation or living conditions as required by s 17 of the Animal Care and Protection Act 2001; and
(b)Failed to provide appropriate treatment for injury as required by s 17 of the Animal Care and Protection Act 2001.
When these proceedings came on for hearing in the Tribunal on 6 December 2022 the parties relied on additional issues as set out below:
(a)the Commissioner relied on the subsequent events of the plea of guilty at the Ipswich Magistrates Court in March 2021 for submitting that pursuant to the second limb in Standard B1.4, the Applicant was mandatorily refused a licence as a result of those convictions;
(b)the Applicant sought an amendment to the Application for review seeking a Declaration pursuant to s 60 of the QCAT Act that the second limb of Standard B1.4 was ultra vires the powers of the RI Act and that the Applicant was in terms of Standard B1.3 a “fit and proper person”.
These issues will be considered by the Tribunal. It is preferable to start with the amendment of the Application by the Applicant seeking a Declaration that the second limb of Standard B1.4 is ultra vires and of no legal force and effect in these proceedings before dealing with any of the issues relating to whether the Applicant is a fit and proper person to hold a licence.
Application by the Applicant to Amend to Claim Relief by way of Declaration
In the course of the proceedings in the Tribunal on 6 December 2022, the Applicant made an oral application to amend the Application to review a decision filed on 4 January 2021 to claim the following relief:
A Declaration pursuant to s 60 of the QCAT Act that QRIC is not empowered or authorised by the terms, objects and purposes of the Racing Integrity Act to deny a thoroughbred trainers licence on the bare ground the applicant has been convicted of an animal welfare offence without regard to or any consideration of the nature, seriousness and circumstances of that offence in declaring accordingly that Standard B1.4 is ultra vires.
The Applicant has made submissions in support of the amendment to be made by the Tribunal.
The Commissioner submitted that:[10]
The respondent does not oppose the applicant’s application to amend her application for review to effectively contend that the Tribunal should make an order under s 60 of the QCAT Act to declare that the second limb of Standard B1.4 is invalid. For the reasons that follow the purported amendment is misconceived and that the Tribunal has no jurisdiction to make any declaratory order as sought by the applicant under s 60.
[10]Commissioners Submissions dated 2 March 2023 at paragraph 36.
The position of the parties is that the application for an amendment is not controversial but the parties dispute whether a Declaration should be made and, if so, whether the Tribunal has the power to make a Declaration pursuant to s 60 in these proceedings.
The QCAT Act authorises the Tribunal to make an order amending a relevant document.[11] A relevant document includes an application which includes the Applicant’s Application to review a decision filed 4 January 2021.
[11]QCAT Act s 64.
As the amendment is not opposed by the Commissioner, and for the purposes of allowing the parties to have all relevant issues in these proceedings before the Tribunal, the amendment sought by the application will be allowed. The Tribunal will direct that the Applicant file in the Tribunal an amended Application to review a decision to include the terms of the amendment as set out in the previous paragraph above within a period of time to be nominated in the orders in these proceedings.
Is the Second Limb of the Standard B1.4 Ultra Vires?
The terms of the amendment seeking the Declaration cause some confusion. At the hearing of these proceedings the amendment being sought suggested that Standard B1.4 requiring the automatic and the mandatory finding that a person was not “fit and proper” was ultra vires the RI Act.
The terms of the amendment as set out previous paragraph above seems to suggest that the terms of B1.4 are not ultra vires provided regard is made “to or any consideration of the nature, seriousness and circumstances of that offence”. The terms of the amendment are in effect in two parts, namely:
(a)to deny a thoroughbred trainers licence on the bare ground the applicant has been convicted of an animal welfare offence; and
(b)without regard to or any consideration of the nature, seriousness and circumstances of that offence.
The construction of the amendment seems to suggest that B1.4 is not ultra vires the RI Act if:
(a)regard is made to or any consideration of the nature, seriousness and circumstances of that offence.
If that construction of the terms of the amendment is correct, it leaves the amendment in the situation where B1.4 is not ultra vires unless there is some other provision in the RI Act and/or the Standard preventing the automatic mandatory refusal of a licence where regard can be had to or any consideration of the nature, seriousness and circumstances of that offence is permitted. However, that construction does not appear to be consistent with the submissions made on behalf of the Applicant at the hearing that the intent of the amendment and in the Applicant’s amended submissions filed in January 2023. What the Tribunal will consider is whether the second limb of Standard B1.4 is ultra vires the RI Act and also consider whether there is any provision requiring regard to be made to or any consideration of the nature seriousness and circumstances of the defence where B1.4 is sought to be applied to determine whether an applicant for the trainers licence is a fit and proper person.
The Standard for Licensing Scheme Thoroughbreds (V2.02) provides in B1.4 for the exclusion of persons from a Thoroughbred Trainers Licence on the basis they are not “fit” and “proper” person on the following basis:
(a)the first limb, the Commission may deem a person is not “fit” and “proper” if the person has been convicted of an offence (the conviction), and the conviction remains on the licence holder’s criminal record, against a law in Queensland that relates to;
(i) dishonesty, fraud, forgery, match-fixing;
(ii) animal welfare or cruelty to animals;
(iii) trafficking or supply of drugs, illicit or illegal substances; and
the criminal activity that led to the conviction occurred prior to 1 July 2016.
(b)the second limb, provides that a person will not be granted a licence if the person has been convicted of an offence (the conviction), and the conviction remains on the licence holders criminal record, against the law in Queensland which relates to:
(i) dishonesty, fraud, forgery, match-fixing;
(ii) animal welfare or cruelty to animals;
(iii) trafficking or supply of drugs, illicit or illegal substances; and
the criminal activity that led to the conviction occurred after 1 July 2016.
While the “first limb” is dependent upon the exercise of the discretion of the Commissioner relating to convictions occurring prior to 1 July 2016, the “second limb” is an automatic mandatory disqualification where the conviction occurred after 1 July 2016 and remains on the licence holders criminal record against the law in Queensland relating to any of the nominated criminal activities. The plea of guilty in the Magistrates Court at Ipswich on 5 March 2021 is a conviction relating to animal welfare or cruelty to animals within the meaning of the second limb in Standard B1.4.
The Applicant in these proceedings argues that that the second limb of Standard B1.4 is “Ultra Vires” the RI Act and is of no legal force and effect.
The Applicant submits that the Standards are a statutory instrument and are valid only if authorised by an empowering Act.[12] The Applicant also submits that delegated legislation can be ultra vires on a number of grounds[13] and the process is one of statutory construction and generally involves three (3) steps:[14]
(a)to determine the meaning of the words used in the parent Act to describe the subordinate legislation which the authority is authorised to make;
(b)to determine the meaning of the subordinate legislation, and
(c)to decide whether the subordinate legislation made by the authority complies with the description in the parent Act.
[12]Amended Supplementary Submissions on behalf of the Applicant dated 27 January 2023 at paragraph 43. (Amended Supplementary Submissions).
[13]Amended Supplementary Submissions at paragraph 45.
[14]Amended Supplementary Submissions at paragraph 46.
The Amended Supplementary Submissions of the Applicant referred to a number of authorities and then says the “starting point is the Act” and then makes the submission:[15]
no express power is conferred by the Act on the Racing Integrity Commission to promulgate a Standard deeming the bare fact of conviction entered on a person’s National Police Certificate after 1 July 2016 as conclusive evidence of a want of fitness and/or proprietary to be licensed in any capacity, without any regard whatsoever to the surrounding facts, including that the subject conviction is unrecorded.
While the definitions and provisions the Racing Integrity Act open offences which appear on the Applicant’s National Police Certificate, even those entered as “no conviction recorded”, to scrutiny, that falls a long way short of concluding authority has been conferred to impose a blanket prohibition and disqualification.
[15]Amended Supplementary submissions at paragraph 60 and 61.
These amended submissions of the Applicant appear to suggest that the reasons why it is asserted that the second limb of the Standard B1.4 is ultra vires and beyond power of the Racing Act is because the RI Act does not provide for an automatic mandatory disqualification for a licence where a person, such as the Applicant, has “no conviction recorded” and secondly this Standard prohibits a consideration in circumstances of an applicant’s capacity to be a fit and proper person, without any regard whatsoever to the surrounding facts including that the subject conviction was not recorded as convictions by the Magistrate at Ipswich.
The Amended Supplementary submissions then conducts a review of Queensland legislation dealing with occupational licensing which it is said is “instructive”.[16] The Amended Supplementary Submissions assert that the “most repugnant feature of the second limb … lies in the purport of stripping an applicant of the very balance and fairness to which the High Court has repeatedly referred to in the cases cited above directing the modern approach to statutory interpretation” and then concludes as follows:
Standard B1.4 purports to do so without the express explicit legislative authority been conferred on the Commission by the Racing Integrity Act which, pursuant to the legality principle can and should only be implied necessarily in the clearest case.
[16]Amended Supplementary Submissions at paragraph 63 to 74. The amended.
The Submissions on behalf of the Commission assert that there are a number of points which demonstrate that the Applicant’s submissions are misconceived.[17] The Commission submits that s 64 of the Racing Act expressly provides for the Commission to have a Standard for its licensing scheme. The Standard, it is submitted, is a statutory instrument under s 7 of the Statutory Instruments Act 1992 and details of a scheme for determining whether an individual should be licensed. The Commission submits that:[18]
The Standard is not “beyond power”. The power to make the Standard is provided for by s 64 of the RI Act. Plainly, when read as a whole, the Standard is consistent with s 64 itself and the objects of the RI Act. Furthermore, the Standard cannot be said to be unreasonable because it clearly falls within the contemplation of their Act and is proportionate to the provisions of the RI Act.
[17]Respondent's Further Outline of Submissions dated 2 March 2023 at paragraph 34.
[18]Respondents Further Outline of Submissions dated 2 March 2023 at paragraph 35.
In referring to the legislative scheme of the RI Act, the Commission submitted that a Racing Integrity Commissioners established for the purpose of maintaining public confidence in the racing of animals in Queensland. Those submissions also referred to the following;[19]
One of the purposes of the licensing scheme for a code of racing is to ensure “the welfare of licensed animals while involved in racing or training, or activities associated with racing or training.” Section 64 of the Act requires the respondent to make a standard for a licensing scheme for each code of racing. The Standards purpose is detailed at clause A 3. The procedure for applications for a licence is addressed at clause B1. The question of suitability of licence holders and how that matter will be assessed as set out at clause B1.3. Clause B1.4 deals with exclusion due to certain convictions.
[19]Respondent's Further Outline of Submissions dated 2 March 2023 at paragraph 16.
The submissions referred to above on behalf of the Commission identify s 64 and the objects of the Racing Act as the head of power for the second limb of Standard B1.4. The Amended Submissions on behalf of the Applicant contended that the Standard has been made “without the express explicit legislative authority been conferred on the Commission by the Racing Integrity Act”.
In Humphries and Another v The Proprietors “Surfers Palms North” Group Titles Plan 1955, Brennan (as His Honour then was) and Toohey JJ held there was no statutory power which might authorise the body corporate to conduct a letting agency for the benefit of those proprietors of lots who might require that service or to procure another person to conduct such a letting agency and stated:[20]
it was therefore beyond the powers of the body corporate to enter into a contract to procure the provision of services of the kind stipulated in cl.2(r) of the management agreement. The principle, as Lord Selborne stated it in Ashbury Railway Carriage and Iron Co. v Riche (12) (1875) LR7HL 653 at 693), is that-
a statutory corporation, created by Act of Parliament for a particular purpose, is limited, as to all its powers, by the purposes of its incorporation as defined in that Act.
[20] (1994) 179 CLR 597 at paragraph 14.
The scheme developed for the racing industry in Queensland by the RI Act relates, so far as is relevant to these proceedings is explained by the following provisions:[21]
(a)to maintain public confidence in the racing of animals in Queensland for which betting is lawful; and
(b)to ensure the integrity of all persons involved with racing or betting under this Act…; and
(c)to safeguard the welfare of all animals involved in racing under this Act…
[21]RI Act s 3.
The RI Act establishes the Queensland Racing Integrity Commission (the Commission). The Commission has a number of functions but, relevant to these proceedings, those functions include:[22]
(a)to license animals and participants that are suitable to be licensed for a code of racing;
(b)to assess under this Act the suitability of an applicant to be an approved control body;
(c)to conduct audits of licensed holders to decide if the licence holders continue to be suitable to be licensed…;
(d)to conduct investigations into breaches of this Act or…;
(e)to safeguard the welfare of any animal involved, whether directly or indirectly and whether lawfully or unlawfully, in racing;
(f)to make decisions about disciplinary matters;
(g)to prevent non-compliance and lapses in integrity, as far as practical in the racing industry;
(h)to promote compliance and integrity, and to promote animal welfare and prevent animal cruelty, by educating, providing information for and working with participants;
[22]RI Act s 10.
This range of these functions illustrates that the purposes for the RI Act are to be subject to the Commission’s overview from the time of an application for a licence and during the continuance of a licence whether it relates to an individual or to the welfare all animals in the racing industry. These functions indicate a broad responsibility for the Commission in carrying out the statutory purposes of the RI Act. The broad responsibility is further illustrated by specific functions to perform matters “incidental” to the nominated functions in s 10 of the RI Act and also to perform functions given to it under another Act.[23]
[23]RI Act s 10(1)(r) and (s).
The RI Act requires the Commission to assess an approval application referred to it under the RI Act and is to be reasonably satisfied the applicant is suitable.[24]
[24]RI Act s 27.
The Commission is authorised to make a Standard for a code of racing.[25] The provisions of the RI Act set out the requirements and nature of these Standards. The purpose of the licensing schemes is to ensure:[26]
(a)the integrity of racing activities conducted as part of the code; and
(b)the safety of persons involved in racing or training licensed animals; and
(c)the welfare of licensed animals while involved in racing or training or activities associated with racing or training.
[25]RI Act s 28.
[26]RI Act s 63.
The Commission is authorised to make this Standard for each code of racing. In developing that Standard, the Commission must consider the privileges and duties that are attached to a licence it issues and other matters relevant to the effective licensing Standard. The mandatory matters for a Standard include:[27]
(a)the criteria for each type of licence, including appropriate qualifications for, and disqualification from, obtaining the license.
[27]RI Act s 65(1)(c).
The Acts Interpretation Act 1954 (Qld) (AIA) provides that in interpreting the provisions of an Act:
“the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation”.[28]
[28]AIA s 14A.
The second limb of Standard B1.4 relates to the exclusion of applicants for a thoroughbred trainers licence if they have been convicted of an offence, which conviction remains on the licence holder criminal record against a law in Queensland relating to (so far as is relevant to these proceedings) animal welfare or cruelty to animals and the criminal activity that led to the conviction occurred after 1 July 2016. The question then becomes whether or not on the proper interpretation and construction of the RI Act does it provide for the suitability of applicants for a Thoroughbred Trainers Licence to be considered, and if so, whether the RI Act authorises the suitability of the person to have regard to whether the applicant has been convicted of an offence relating to animal welfare or cruelty to animals since 1 July 2016.
The RI Act has as one of its main purposes to ensure the integrity of all persons involved with racing or betting.[29] That provision would apply to the Applicant in these proceedings who would need to be a person of integrity. One means of assessing whether or not a person is and of integrity is to consider their background and whether they have any criminal convictions or criminal proceedings brought against them. That is an objective test to apply to ascertain whether the person is of integrity. It would also be a reasonable and expected test to adopt to assess integrity of an applicant The second limb of Schedule B1.4 attempts to achieve that purpose to identify persons of integrity to be licensed as a Thoroughbred Trainer by the Racing Act. Similar provisions in the RI Act are designed to achieve that purpose. For example, the Commission has the function of assessing under the RI Act:[30]
to license animals and participants that are suitable to be licensed for a code of racing;
[29] RI Act s 3(3)(b).
[30]RI Act s 10(1)(a).
This provision relates to the Applicant in these proceedings who is required to be a person “suitable to be licensed for a code of racing”. To achieve that purpose the Commission needs to make a factual enquiry into the background of applicants to identify relevant characteristics of the suitability of the person. The background information sought about such an applicant would include a variety of facts and circumstances that have arisen relevant to their past behaviour and would encompass ascertaining whether they have criminal convictions or a criminal history relevant to an application to be licensed.
The relevance of any enquiry about criminal convictions in the context of a person applying for a Thoroughbred Trainers Licence is whether or not they have been involved in any issues involving animal welfare or cruelty to animals.[31] This purpose is provided for in the RI Act which requires it to safeguard the welfare of all animals. The past behaviour of an applicant for a Thoroughbred Trainers Licence would be very relevant if it included whether the applicant had ever been convicted of an offence against a law in Queensland which relates to animal welfare or cruelty to animals. The Commission is required to safeguard the welfare of any animal involved, whether directly or indirectly or whether lawfully or unlawfully in racing.[32]
[31]RI Act s 3(10(c).
[32]RI Act s 10(1)(i).
The RI Act authorises the Commission to make a Standard for a licensing scheme for each code of racing. The purposes for the RI Act and the functions of the Commissioner have already been set out for the basis of a licensing scheme for the Thoroughbred Trainers Licence. All relevant elements in the second limb of the Thoroughbred Standard B1.4 seek relevant information about the suitability of an applicant for a Thoroughbred Trainers Licence and other facts which may impinge upon the welfare of animals involved in racing. That relevant information sought in the Standard is to give effect to the purposes in the RI Act so as to enable the Commission to decide whether or not to licence a person applying for a licence.
Without the information about an applicant for a licence as specified in Standard B1.4 the task of the Commission in determining whether to grant a licence would mean that there was no, or minimal information, about the suitability of that applicant. This would not be in accordance with the objects and functions of the RI Act requiring that it ensure the integrity of persons involved with racing or betting and to safeguard the welfare of all animals. Without any factual enquiry into applicants about their background and in particular any criminal activity relating to convictions involving animal welfare or cruelty to animals would leave the Commission in a position of having inadequate information about the background of applicants. Public confidence in the racing of animals in Queensland would be diminished and could not be maintained.
Standard B1.4 also considers the relevant period when any conviction may have resulted. For example, the first limb deals with convictions prior to 1 July 2016. The second limb specifying the automatic and the mandatory provisions about whether a person is fit and proper deal with more recent events since 1 July 2016. These timeframes are appropriate and proportionate.
The automatic disqualification of an applicant for convictions of animal welfare or cruelty to animals is part of the scheme of the RI Act requiring;
(a)The maintainence of public confidence in the racing of animals in Queensland; and
(b)the integrity of all persons involved with racing; and
(c)safeguard the welfare of all animals involved in racing
The purpose of these provisions is to exclude applicants for a Thoroughbred Trainers Licence who would not enhance or would detract from these criteria in the RI Act. One category of applicants who would be readily identifiable as not enhancing or detracting fro that criteria are persons who have convictions relating to animal welfare or animal cruelty. Such persons have demonstrated a failure to safeguard the welfare of animals.
For these reasons the Tribunal considers that the RI Act authorises the Commissioner to make a Standard relating to Thoroughbred Trainers Licensing to achieve the purposes and functions described in the legislation by which the suitability of applicants for a licence is to be assessed and to safeguard the welfare of all animals as well as maintaining public confidence in the racing of animals..
The Tribunal accepts the submissions made on behalf of the Commission that the second limb of the Standard B1.4 is made within power of the RI Act. The Tribunal rejects the submissions of the Applicant that the second limb of the Standard B1.4 is ultra vires the powers of the Commission under the RI Act.
The Tribunal finds that the second limb of the Standard B1.4 is made within power of the RI Act as that Standard is in furtherance of and is to achieve the objects and functions referred to in the Act. The Tribunal finds that Schedule B1.4 is not ultra vires the RI Act.
The next issue is whether the RI Act and/or Standard requires the Commission when applying the second limb of B1.4 to have regard to or any consideration of the nature, seriousness and circumstances of an offence in determining whether an applicant is a fit and proper person or whether they should be automatically excluded from the issue of a licence. The Applicant did not refer the Tribunal to any statutory provision or any provision in subordinate legislation to that effect. Similarly, no such provision was identified in the submissions filed on behalf the Commission. In the circumstances, the Tribunal is not satisfied that in taking into account the suitability of an applicant for a Thoroughbred Trainers Licence in Standard B1.4 the Commission is required to take into account facts and circumstances other than those set out in that Standard which are;
(a)whether the applicant has been convicted of an offence;
(b)whether the conviction remains on the licence holder’s criminal record;
(c)whether the offence is against a law in Queensland which relates to;
(i) dishonesty, fraud, forgery, match-fixing;
(ii) animal welfare or cruelty to animals;
(iii) trafficking or supply of drugs, illicit or illegal substances; and
(d)the criminal activity that led to the conviction occurred after 1 July 2016.
The Applicant seeks a Declaration to the effect that the second limb of Standard B1.4 is ultra vires and in effect is of no legal force and effect. The Applicant has made detailed submissions referring to a number of authorities contending that in the exercise of the review jurisdiction, the Tribunal has the power to make a Declaration pursuant to s 60 of the QCAT Act. The Commission has made submissions to the effect that the Tribunal in exercising the review jurisdiction does not have the requisite power to make a Declaration as sought by the Applicant. Accordingly, whether a Declaration can be made is a matter of controversy between the parties. However, as the Tribunal has now determined that the second limb of the Standard is not ultra vires the RI Act it is not necessary for a Declaration to be made whether the Tribunal has the power, and if so, whether that power should be exercised in accordance with the Applicant’s submissions. The Tribunal declines to make any determination in these proceedings as to whether it does, or does not, have the power to make a Declaration in terms of s 60 of the QCAT Act.
Accordingly, the Tribunal will dismiss the Applicant’s amended Application to review the decision of the Commission made on 25 November 2020 seeking a Declaration pursuant to s 60 of the QCAT Act that the second limb of Standard B1.4 is ultra vires as it was not made within power under the provisions of the RI Act.
Is the Applicant a “Fit” and “Proper” Person- Standard B1.4?
The Applicant’s submissions contend that she is a fit and proper person to be licensed as a Thoroughbred Trainer under the RI Act.
The Applicant’s submissions rely on contentions that;
(a)the “no conviction recorded” outcome at Ipswich Magistrates Court in 2021 remain a relevant, but not determinative, consideration on the question of the Applicant’s fitness and proprietary to be licensed; and
(b)the Commission’s documents provided under s 21 of the QCAT Act are not sworn material and their contents were not verified by Affidavit. The Commissioner’s original decision and the internal review decision are always fatally flawed;
(c)the Applicant’s sworn testimony concerning the events surrounding her entry into a plea bargain and a guilty plea to two (2) charges of which she was convicted at Ipswich on 5 March 2021 stand wholly uncontroverted;
(d)the subsequent consent by the RSPCA for the applicant to keep 20 horses give substantial weight to an objective and sensible lack of any serious concerns surrounding the applicants present and prospective capacity to care, treat and manage horses under her care professionally and appropriately.
While the Applicant raises the contentions referred to above, Standard B1.4 is concerned with whether the Applicant should be excluded by reason of her not being a “fit” and “proper” person if she has been convicted of an offence which conviction remains on the licence holder’s criminal record against a law in Queensland relating to animal welfare or cruelty to animals and that criminal activity has led to a conviction occurring after 1 July 2016.
In these circumstances it is appropriate to consider the Applicant’s contentions which are relevant to Standard B1.4. Those contentions rely on the fact that the Ipswich Magistrates Court did not record a conviction against the Applicant and the extent to which that impacts on B1.4.
The Commission makes the submission in respect to the “fit and proper” issue that although the RSPCA allowed the Applicant to have up to 20 horses, the fact that another entity such as RSPCA saw fit to allow this to occur is of little relevance to the issue whether the Applicant should be Licensed as a Thoroughbred Trainer pursuant to the provisions of the RI Act. The Commission also refers to the definition of “conviction” in Schedule 1 to the Standard which is in these terms:
“Conviction” refers to an offence, means being found guilty of the offence, on a plea of guilty or otherwise, whether or not a conviction is recorded.
The evidence is that the Applicant pleaded guilty to two (2) charges in the Ipswich Magistrates Court in March 2021 relating to animal welfare or cruelty to animals. The Applicant was found guilty and a prohibition order was made however no conviction was recorded. These matters satisfy the definition of conviction in terms of the Schedule.
The Commission also referred to the definition of conviction in the RI Act which provides in Schedule 1 to that Act as follows:
“Conviction” means a finding of guilt, or the acceptance of a plea of guilty, by any court.
The evidence before the Tribunal establishes that the Applicant entered a plea of guilty in the Magistrates Court in March 2021 and which plea was accepted by that Court. The Applicant satisfies the definition of conviction in terms of the Racing Act.
The Commissioner also submits that the s 21 of the QCAT Act documents has fulfilled the obligations of the Commissioner and those documents are admissible.
It is difficult to understand the Applicant’s argument about the Commission failing to provide any evidence in its documentd provided pursuant to s 21 of the QCAT Act for the hearing held by the Tribunal on 6 December 2022. At the commencement of the hearing the Tribunal asked the parties what material they relied upon for the Tribunal to hear and determine the proceedings. The Applicant and the Commission both identified documents previously filed in the Tribunal on which they relied and that these documents were each made a separate exhibit.[33] Those exhibits included the s 21 of the QCAT Act documents.
[33]the List of the Documents relied on by the parties were Exhibits 1- 8, with the Applicant's documents being exhibits 1 - 5 and the Commission’s documents being exhibits 6 – 8.
The Applicant filed an affidavit in the Tribunal on 11 May 2022 which was an exhibit and was before the Tribunal at the hearing.[34] The affidavit deposes to the proceedings in the Ipswich Magistrates Court on 5 March 2022 and exhibits documents from the Magistrates Court which record the plea of guilty to charges one and two and the verdict was “pleaded guilty”. It’s not necessary, in the circumstances, to discuss the Applicant’s submissions about the nature and extent of the s 21 documents provided by the Commission as these documents were made exhibit 6 in the proceedings.
[34]Exhibit 2.
There was sufficient evidence for the Tribunal to find that on 5 March 2021 at the Ipswich Magistrates Court the Applicant pleaded guilty to the two charges referred to in the Applicant’s Affidavit which is exhibit 2 in the proceedings.
The Tribunal also finds that the plea of guilty by the Applicant to both charges was accepted by the Magistrates Court and a prohibition order was made as a consequence.
The evidence before the Tribunal records that the conviction occurred after 1 July 2016 against a law in Queensland relating to animal welfare or cruelty to animals and that the requisite criteria in Standard B1.4 has been established. For those reasons the Tribunal is satisfied that the Applicant’s criminal convictions on 5 March 2021 comes within the terms of the second limb in Standard B1.4 and in those circumstances the Applicant is not at a fit and proper person and is not a suitable person to be issued a Thoroughbred Trainers Licence.
The Tribunal is satisfied that by reason of the convictions of march 2021 at Ipswich Magistrates Court and the terms of Standard BI.4, the Applicant is not a “fit” and “proper” person to be granted a Thoroughbred Trainers Licence under the RI Act.
Is the Applicant a “Fit” and “Proper” Person- Standard B1.3?
Standard B1.3 relates to the suitability of applicants for a licence and provides for the assessment of whether a person is fit and proper to be granted a licence. Separate criteria are provided under each of the headings “fit” and “proper”.
As has already been referred to, the Applicant submits that she is a “fit and proper person” to be licensed as a Thoroughbred Trainer under the RI Act. The Amended Submissions relied upon by the Applicant on this issue have already been referred to above.
The Commission submits the question whether a person is “fit and proper” is a value judgement and refers to Australian Broadcasting Tribunal v Bond[35] and then submits:
In the context of the RI Act the applicant’s fitness and proprietary must be “to maintain public confidence in the racing of animals in Queensland…” and “to safeguard the welfare of all animals that are or have been involved in racing…”.
[35](1990) 170 CLR 321 at 380.
The Commission submits that the Applicant fails to meet the criteria in Standard B1.3 for the following matters:
(a)on 23 July 2010 the Applicant was disqualified for a 12 month period in relation to failing to exercise reasonable care control and supervision of horses and to prevent an act of cruelty to animals. The Applicant pleaded guilty to 5 charges.
(b)In 2010 the Stewards Report commented that on the Applicant’s completion of the disqualification period she not be re-licensed in any capacity; and
(c)the plea of guilty to two (2) charges relating to animal welfare or cruelty to animals and the prohibition ordered by the Ipswich Magistrates Court in the proceedings on 5 March 2021
There is evidence before the Tribunal relating to the Applicant’s plea of guilty to the five charges in July 2010. There is also more recent evidence in 2019 from Dr Young in the Report about the veterinarian condition of three horses found in the Applicant’s Bundamba property. There is also the Applicant’s plea of guilty to 2 charges in the Magistrates Court at Ipswich relating to animal welfare and/or cruelty to animals. The Tribunal accepts this evidence. The evidence displays, notwithstanding the statements by the Applicant relating to her interest in horses and her ability to care for horses, a continuing failure to properly have regard to the welfare of horses. An applicant for a Thoroughbred Trainers Licence should be able to demonstrate a competent and appropriate way to care for horses in their possession or control. Unfortunately, the evidence before the Tribunal illustrates a failure to provide adequately for the care and veterinarian conditions of animals in the Applicant’s possession and control. The recent veterinarian Report from Dr Young demonstrates distressing conditions in which three (3) horses were found to be in while in the Applicant’s care or control. That distressing situation was not adequately explained by the Applicant so as to demonstrate that she had taken all due care of the animal’s welfare. The animals had to be euthanised. The Applicant pleaded guilty to 2 charges apparently, in return for what she says was a plea bargain in relating to 5 charges. The history of the Applicant is such that she has demonstrated an unsatisfactory ability to properly care for the welfare and avoid any cruelty to animals in her position or control.
In these circumstances the Tribunal considers that the evidence demonstrates that the Applicant does not have the skills and knowledge required for a licence. The Applicant is accordingly unable to satisfy all of the criteria required for a person to be considered “fit” in terms of Standard B1.3.
Also, in these circumstances having regard to the Applicant’s history and her integrity (as discussed above in relation to Standard B1.4) the Applicant does not satisfy the general behaviour and conduct in the criteria to be considered for a “proper” person in terms of Schedule B1.3.
The Tribunal accepts the submissions of the Commission that the Applicant is not a fit and proper person in terms of the criteria in the Schedule B1.3. The Tribunal rejects the Applicant’s submissions. The Tribunal is satisfied that based on the evidence provided to the Tribunal that the Applicant is not a fit and proper person in terms of Schedule B1.3.
The Tribunal will in these circumstances dismiss the Applicant’s Application for review of decision made by the Commission on 25 November 2020.
Orders
The Tribunal allows the amendment sought by the Applicant to the Application to review a decision filed on 4 January 2021 to add the additional claim in the following terms:
A Declaration pursuant to s 60 of the QCAT Act that QRIC is not empowered or authorised by the terms, objects and purposes of the Racing Integrity Act to deny a thoroughbred trainers licence on the bare ground the applicant has been convicted of an animal welfare offence without regard to or any consideration of the nature, seriousness and circumstances of that offence in declaring accordingly that Standard B1.4 is ultra vires.
The Tribunal Directs that the Applicant file in the Tribunal two (2) copies and is to give to the Queensland Racing Integrity Commission one (1) copy of the amended Application containing the terms of the amendment as set out in the paragraph above on Elliott before Friday, 17 November 2023.
The decision of the Queensland Racing and Integrity Commission made originally on 19 October 2020 and subsequently by an internal review on 25 November 2020 are confirmed.
The Application to review a decision filed in the Tribunal on 4 January 2021 including the amended Application as directed in the two preceding paragraphs are dismissed.
And all other necessary and consequential orders and directions including liberty to apply.
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