Yole and Ors v Tasracing Pty Ltd
[2024] TASSC 17
•12 April 2024
[2024] TASSC 17
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Yole and Ors v Tasracing Pty Ltd [2024] TASSC 17 |
| PARTIES: | YOLE, Benjamin |
| YOLE, Tim | |
| FORD, Nathan | |
| FORD, Mitchell | |
| v | |
| TASRACING PTY LTD | |
| FILE NO: | 567/2024 |
| DELIVERED ON: | 12 April 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 21 March 2024 |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Administrative law – Judicial review – Grounds of review – Jurisdictional matters – Power of statutory racing authority to issue warning-off notice – Jurisdiction not limited by text, context or purpose of legislation.
Racing Regulation Act 2004, s 54(2) Aust Dig Administrative Law [1029]
REPRESENTATION:
Counsel:
Applicants: D Sheales, T Purdey Respondent: M O'Farrell SC
Solicitors:
Applicants: Dobson Mitchell and Allport Respondent: Murdoch Clarke
| Judgment Number: | [2024] TASSC 17 |
| Number of paragraphs: | 51 |
Serial No 17/2024 File No 567/2024
BENJAMIN YOLE, TIM YOLE, NATHAN FORD and MITCHELL FORD
v TASRACING PTY LTD
| REASONS FOR JUDGMENT | PEARCE J 12 April 2024 |
1 The applicants are licensed persons in harness racing. By letter dated 20 February 2024 lawyers for the respondent, Tasracing Pty Ltd (Tasracing), gave notice to each applicant that Tasracing intended to issue a notice under the Racing Regulation Act 2004 (the RR Act), s 54(2)(a), called a warning-off notice, directing the recipient not to enter any of the seven Tasmanian racecourses controlled by Tasracing from 1 March 2024 for a period of 28 days. The letter invited the applicants to "show cause as to why our client ought not make that decision" and sought submissions by 5.00 pm on 27 February 2024. By further letter dated 27 February 2024 the lawyers for Tasracing forwarded drafts of the proposed notice in each case and extended the time for submissions to 3.00 pm on 29 February 2024.
2 On 1 March 2024 I made orders restraining the issue of the warning-off notices which accompanied the letters of 27 February 2024 until further order and a general order to show cause why the issue of the notices should not be restrained. The applicants' originating application sought relief in the nature of prohibition, in substance an injunction to restrain Tasracing from acting in excess of jurisdiction[1]. The principal issue for determination is whether the issue of the notices is, in the circumstances of this case, within the jurisdiction of Tasracing. The proposed notices are based on allegations that, in various ways, the applicants breached the Australian Harness Racing Rules and that "their continued attendance at any racecourse controlled by Tasracing has a real and substantial likelihood of damaging the integrity and reputation of the Tasmanian racing industry."
[1] Supreme Court Rules 2000, r 627(2)(c), Tasman Quest Pty Ltd v Evans (2003) 13 Tas R 16
3 By s 54(2) of the RR Act, Tasracing has express power to issue a warning-off notice. However the substance of the applicants' contentions is that suspected breaches of the rules or allegations founded on "issues of integrity" are matters which fall within the jurisdiction of the Director of Racing, or the stewards, but not Tasracing. The applicants further contend that issue of the notices would be, in various ways, an improper exercise of power and result in a breach of a duty to extend procedural fairness to the applicants.
4 For the following reasons the originating application will be dismissed and the general order to show cause and interlocutory injunction discharged.
The background facts
In March 2023 the Tasmanian government appointed Ray Murrihy, a former New South Wales chief racing steward, to conduct an investigation into animal welfare and allegations of team driving and race fixing in harness racing. The allegations centred on the conduct of the applicants. Mr Murrihy's report was published on 28 November 2023. It was the contents of the report which led Tasracing to act in relation to the applicants. There are some preliminary matters which emerge from the report which should first be addressed. To facilitate the investigation Mr Murrihy was appointed as a stipendiary steward, from which it is to be inferred that he was invested with the powers of a steward under the Rules of Racing. For harness racing the Rules of Racing are the Australian Harness Racing Rules (the AHRR) supplemented by some local provisions. The investigation was conducted according to terms of reference, in respect to which public submissions were sought. Mr Murrihy
2 No 17/2024
reported that information was obtained "through close to 100 submissions and interviews." He examined records and race videos and visited the property of the first applicant. The applicants were interviewed and given further opportunity to comment.
6 In a section entitled "Scope and limitations of the inquiry", Mr Murrihy noted:
"…This investigation and review was not directed to lay and determine charges in respect of potential instances of non-compliance with the AHRR. The review has therefore not proceeded to determine formal charges and issue penalties.
…Therefore, where this investigation expresses its determinations of non-compliance with the AHRR, it does so on the evidence which was before it. It does not make positive findings on formal charges. Rather, it makes determinations of non- compliance with the AHRR based on the evidence before it and the inquiries it has made, noting it has afforded those who have faced allegations of non-compliance an opportunity to answer those allegations. These findings are not to be interpreted as positive findings which a steward would make upon determination of a formal charge and to which penalties and consequences would attach.
Following this report, and noting matters in this report which are of some gravity, the Tasmanian Government may choose to refer these matters to an authorised appointee who is empowered to investigate specific matters and if deemed appropriate, proceed to lay charges." (Emphasis in original)
7 Subject to those expressed limitations, Mr Murrihy determined that, in breach of various provisions of the AHRR:
• for a period in 2022, the first applicant failed to properly care for an identified horse; • the first and second applicants had mistreated other horses; • the first and second respondents systematically administered medications in the form of oral pastes to horses on race days; • the first and second respondents systematically administered injections to horses within one clear day of a race for which the horse was nominated; • the first respondent administered intra-articular injections to horses within eight clear days of a race for which the horse was nominated.
8 In addition, Mr Murrihy identified "shortcomings" in the welfare conditions for horses at the first respondent's training facility caused by overstocking, unsatisfactory ground conditions, a feeding regime which resulted in some horses receiving insufficient nutrition, inadequate protection from extreme weather, superficial and inaccurate veterinary treatment records and unduly lengthy tying up of horses on race days.
9 As to the investigation of allegations of team driving and race fixing, Mr Murrihy, subject to the same limitations earlier expressed, determined that, in breach of the AHRR, the first, third and fourth applicants acted together with one or both of the others to improperly advantage horses and disadvantage others in harness races - the first applicant on two occasions, the third applicant on two occasions and the fourth applicant on one occasion.
10 In response to the report Tasracing first issued warning-off notices to the applicants on 2 February 2024. Each applicant appealed to the Tasmanian Racing Appeal Board (the TRAB) against Tasracing's decision to issue the notices. The TRAB determined that, on the proper construction of the legislation and rules, it did not have power to order a stay of the operation of the warning-off notices. However, on 19 February 2024, the TRAB allowed the appeal and quashed the decision of Tasracing
3 No 17/2024
to issue the notices. The TRAB published what it referred to as "Preliminary Reasons for Decision" on 23 February 2024. In short summary, the TRAB found that Tasracing failed to afford procedural fairness to the applicants because it invited the applicants to show cause why the notices should be rescinded rather than an opportunity to show cause why the notices should not be issued at all.
11 A few days before the findings of the TRAB were published, the letters from the solicitors for Tasracing dated 20 February 2024 giving notice of Tasracing's intention to issue new notices were sent. I infer that Tasracing's action was in anticipation of the decision of the TRAB. In the letters which referred to or accompanied the proposed further notices, each applicant was invited to show cause why the notices should not be issued. Only the proposed notices addressed to the first and second applicants are in evidence. However I was asked to assume that the proposed notices addressed to the third and fourth applicants are, save for matters specifically applicable to them, in the same terms. In each case, the proposed warning-off notice, which accompanied the further letters dated 27 February 2024, included the following statements:
"We are satisfied that we have grounds to issue this Notice to you on the basis that in consequence of the factual findings made by Mr Murrihy in the Murrihy Report your continued attendance at any racecourse controlled by Tasracing has a real and substantial likelihood of damaging the integrity and reputation of the Tasmanian racing industry.
…
We are further satisfied that conduct in which you engaged as found in the Murrihy
Report has and will continue to have adverse effects on:
• the promotion of the Tasmanian racing industry locally, nationally and internationally; • the promotion of an efficient and effective racing industry; • the development and maintenance of racing venues under the control of Tasracing."
12 The proposed notice to each applicant indicated that, "in consequence of the factual findings made by Mr Murrihy in the Murrihy Report" it was "necessary for Tasracing … to exclude you from its racetracks whilst the matters raised in the Murrihy Report are being investigated by an independent panel of stewards."
The legislative and regulatory scheme
13 The applicants' contention that Tasracing would be acting in excess of jurisdiction by issuing the warning-off notices is to be considered in the context of the statutory and regulatory scheme. Tasracing is formed pursuant to the Racing (Tasracing Pty Ltd) Act 2009 (the Tasracing Act) which provides that the Minister may form a company limited by shares and incorporated under the Corporations Act "to perform functions relating to the governance of the racing industry and to provide administrative and financial services to that industry."[2] Tasracing has two principal statutory objectives3: firstly "to perform its functions and exercise its powers so as to be a successful business by operating in accordance with sound commercial practice as efficiently and effectively as possible", and secondly "to perform any functions conferred by [the RR Act] and any other Act." The members
[2] Tasracing Act, s 5 3 Tasracing Act, s 6 4 Tasracing Act, s 10
4 No 17/2024
of the company are the Minister and the Treasurer (or another Minister)4 who provide the company
with a "statement of expectations"[5] and to whom a corporate plan must be submitted each year6.[5] Tasracing Act, s 12 6 Tasracing Act, s 13 7 Tasracing Act, s 14 8 Tasracing Act, s 25 9 RR Act, Part 214 Tasracing has a board of seven directors, each of whom "must have the experience and expertise necessary to enable the company to achieve its objectives"7. Directors are appointed by a process which provides for input by persons with experience and expertise in thoroughbred racing, harness racing and greyhound racing and persons who are members of thoroughbred racing, harness racing and greyhound racing clubs, industry associations, license holders or owners or breeders8.
15 The Tasracing Act is a component of a legislative scheme centred on the RR Act. By its long title, the RR Act is an Act "to provide for the better regulation of thoroughbred, harness and greyhound racing and associated betting activities, and for related purposes". The RR Act includes Parts which deal with the appointment functions and powers of the Director of Racing9, the general function and powers of Tasracing[10], the creation and powers of the Tasmanian Racing Appeal Board11, and the regulation of racing12 including the holding of race meetings13, the role of racing clubs[14] and the appointment and powers of racing stewards15. The Act also provides for the regulation of bookmaking16.
[10] RR Act, Part 3 11 RR Act, Part 5 12 RR Act, Part 6 13 RR Act, Part 6 Division 1[14] RR Act, Part 6 Division 2 15 RR Act, Part 6 Division 3 16 RR Act, Part 7
16 The general functions and powers of Tasracing are stated in the Act, s 11(1), which should be
set out in full:
"11 General functions and powers of Tasracing (1) Tasracing is, with respect to racing in Tasmania, responsible for –
(a) developing a vision for the racing industry; and (b) promoting Tasmanian racing locally, nationally and internationally; and (c)
promoting the development of an efficient and effective racing industry; and
(d)
promoting the development of an efficient and effective horse and greyhound breeding industry; and
(e) corporate governance, strategic direction and funding; and (f)
providing advice to the Minister and making appropriate policy recommendations for the development of racing; and
(g) attracting sponsorship income; and
(h) allocating race dates; and
(i) race programming; and5 No 17/2024
(j) developing and maintaining racing and training venues under its control; and (k) making (by drawing up its own local rules and by adopting Australian Rules of Racing) the Rules of Racing, having regard to the recommendations of the Director; and (l) setting licence and registration standards and criteria, having regard to the recommendations of the Director; and (m) monitoring, coordinating and setting standards, in consultation with the Director, for the training of people employed or otherwise engaged in the racing industry other than – (i) persons appointed under section 51 ; or
(ii) persons employed in that industry appointed under the State Service Act 2000 ; and (n) representing the Tasmanian racing industry on national and international controlling bodies and in national and international forums; and (o) publishing industry journals; and
(p) approving, in a manner not inconsistent with the Corporations Act, the operating budgets of racing clubs; and (q) assisting racing clubs with the promotion and marketing of major race meetings and race carnivals; and (qa) determining, in consultation with the relevant racing clubs for each code of racing, a fee or series of fees for a race field information publication approval for each code of racing; and
(r) developing a code of conduct to be complied with by Tasracing and its employees; and (s) controlling race nominations, acceptances, field selections, handicapping, barrier draws and scratchings in thoroughbred racing; and (t) negotiating with broadcast providers scheduling and revenue-sharing arrangements for the broadcast of Tasmanian racing, both nationally and internationally; and (u) such other functions as may be conferred or imposed on it by or under this or any other Act."
17 Although it is Tasracing itself which, by s 11(1)(k), is responsible for making the Rules of Racing, it must, by s 11(11) perform its functions and exercise its powers in accordance with the Rules of Racing.
18 The RR Act provides for the Governor to appoint a State Service officer or employee to the office of Director of Racing[17]. The functions of the Director include responsibility for:
[17] RR Act, s 5
• regulating and controlling racing to ensure that it is conducted with integrity[18]; • researching and investigating racing integrity and related matters19; [18] RR Act, s 6(1)(a)6 No 17/2024
• liaising with authorities and persons responsible for racing integrity and related matters in this State and, as appropriate, elsewhere20; • providing advice and recommendations to Tasracing on the Rules of Racing21; and • ensuring that the Rules of Racing for all codes of racing are properly enforced by the stewards22.
19 The Director is also responsible for "controlling race nominations, acceptances, field selections, handicapping, barrier draws and scratchings in harness racing"23and "controlling race nominations, gradings, field selections, box draws and scratchings in greyhound racing"24. In contrast, for thoroughbred racing, the equivalent functions and powers of "controlling race nominations, acceptances, field selections, handicapping, barrier draws and scratchings" fall to Tasracing25.
20 In the main, thoroughbred, harness or greyhound race meetings are conducted by registered racing clubs26, although they may also be conducted by persons permitted to do so by the Director27. By s 51 of the RR Act, the Secretary of the Department may appoint stipendiary stewards to enforce the Rules of Racing of one or more codes of racing. Although appointed under the RR Act, the powers of stewards derive principally from the Rules of Racing. The powers are extensive and include, in the case of the AHRR, to direct and control the activities of licensed persons and anyone else engaged in harness racing and to determine all matters arising from race meetings and races or concerning the application of the rules, or concerning "any aspect of the harness racing industry"28. The stewards may impose fines and other penalties and "suspend or disqualify any person from participating in or being employed or engaged in or about the harness racing industry"29. The stewards "may, and when directed by the Controlling Body shall, conduct inquiries or investigations in such manner as they see fit" into any matter arising from any aspect of harness racing and administration or enforcement of the rules30. The stewards may suspend the licence of any licensed person pending the outcome of an inquiry or investigation31.
21 The AHRR state that stewards are appointed by the Controlling Body, relevantly defined as "an organisation which by convention, recognition or law is or is deemed to be in control of harness racing in a State"32. However, in Tasmania, stewards are appointed by the Secretary of the Department, although the RR Act provides that a person may not be appointed as a full time steward unless recommended by a panel consisting of the chairperson of Tasracing, the Director and a departmental representative33. As I have already pointed out, the RR Act provides that the responsibility for ensuring that the Rules of Racing for all codes of racing are properly enforced by the stewards falls to the Director, and not Tasracing or a racing club. Moreover, according to s 51(7), (8) and (9):
19 RR Act, s 6(1)(c) 20 RR Act, s 6(1)(e) 21 RR Act, s 6(2)(c) 22 RR Act, s 6(2)(d) 23 RR Act, s 6(2)(a) 24 RR Act, s 6(2)(b) 25 RR Act, s 11(1)(s) 26 RR Act, Part 6, Division 2
27 RR Act, ss 35, 36 and 38
28 AHRR, r 15(1)(a)
29 AHRR, r 15(1)(e)
30 AHRR, r 181A
31 AHRR, r 183
32 AHRR, Dictionary
33 RR Act, s 51(2)
7 No 17/2024
(7) Despite any law or Rules of Racing to the contrary, Tasracing or a registered club is not capable of –
(a) appointing or dismissing a person as a stipendiary steward or other racing official; or (b) authorising or requiring a person to perform, or not perform, the functions of a stipendiary steward or other racing official; or (c) performing the functions of a stipendiary steward or other racing official in its own right.
(8) Any purported appointment, dismissal or authorisation contrary to subsection (7)(a) or (b) is void.
(9) Any purported performance of functions contrary to subsection (7)(c) is
void.
22 According to the AHRR, the Controlling Body may, by licence, regulate any activity connected with the harness racing industry. Harness racing drivers, trainers and stable hands must all be licensed[34]. Stewards routinely conduct inquiries into allegations of breaches of the AHRR, both during races and otherwise, and, subject to the outcome of a particular inquiry, impose penalties on licensed persons.
[34] AHRR, Part 423 The provision of the RR Act directly relevant to this appeal is s 54, which provides:
"54 Warning-off notices
(1) The Director may, if satisfied that there are grounds to do so, issue a person with a notice directing the person not to enter a specified racecourse, or racecourses generally, on a specified day or during a specified period.
(2) Tasracing or a registered club may, if satisfied that there are grounds to do so, issue a person with a notice directing the person –
(a)
not to enter, on a specified day or during a specified period, a specified racecourse under the control of Tasracing or the club; or
(b)
to leave a racecourse under the control of Tasracing or the club where a race meeting or betting-only meeting is being or is about to be held.
(3) A notice issued under subsection (1) or (2) is called a warning-off notice. (4) Without limiting their discretion under subsection (1) or (2) , the Director or Tasracing or the registered club has grounds for issuing a person with a warning-off notice if the Director, Tasracing or the club knows or reasonably suspects that the person –
(a) is engaging in bookmaking without being registered as a bookmaker or bookmaker's agent; or (b) habitually engages in unauthorised betting. (5) A warning-off notice that directs a person to leave a racecourse must be served personally.
8 No 17/2024
(6) Within 5 days after issuing a person with a warning-off notice, Tasracing
or the registered club is to forward a copy of the notice to the Director.(7) As soon as practicable after issuing a warning-off notice, the Director is to forward a copy of it to –
(a) each club holding race meetings at the specified racecourse on or during the specified day or period; or (b) if the notice applies to racecourses generally, every club.
(8) A person who is issued with a warning-off notice must comply with the notice and, if the notice directs the person to leave a racecourse, the compliance must be immediate.
Penalty: In the case of –
(a) a first offence, a fine not exceeding 20 penalty units; and (b) a subsequent offence, a fine not exceeding 30 penalty units or imprisonment for a term not exceeding one month.
(9) A person who is issued with a warning-off notice directing the person to leave a racecourse must not, after leaving or being removed from the racecourse pursuant to the notice, enter or attempt to re-enter the racecourse on the same day.
Penalty: In the case of –
(a) a first offence, a fine not exceeding 20 penalty units; and
(b)
a subsequent offence, a fine not exceeding 30 penalty units or imprisonment for a term not exceeding one month.
(10) If a person contravenes subsection (8) or (9) –
(a) a police officer or an employee or agent of the club that issued the notice, using such reasonable force as may be necessary, may, depending on the offence, evict the person from the racecourse or prevent the person from re-entering the racecourse; and (b) a police officer may arrest the person without warrant.
(11) The issuer of a warning-off notice may, by a further notice, rescind the notice at any time if satisfied that there is no reason for it to remain in force.
(12) In their application to Tasracing or the registered club, the provisions of
this section –
(a) extend to every racecourse that Tasracing or the club has control of at the relevant time, whether or not the racecourse is owned by Tasracing or the club or is at any other time subject to a right of public use or entry; and (b) are in addition to and not in derogation of any other powers that Tasracing or the club may have.
(13) Nothing in this section limits the right of Tasracing or the registered club to do, by means other than a warning-off notice, either of the following:
(a)
refuse its permission for a person to enter a racecourse under its control;
9 No 17/2024
(b)
withdraw its permission for a person to remain on a racecourse under its control.
(14) In this section –
specified, for a warning-off notice, means specified in the notice."
24 The Act confers a right on a person aggrieved by a decision of the stewards to fine a person or disqualify a person, horse or greyhound to appeal to the TRAB[35]. It also confers a right of appeal to the TRAB against a decision of Tasracing or a club to issue a warning-off notice[36].
[35] RR Act, s 28(1)(b)[36] RR Act, s 28(1)(a)
The grounds of the application
25 The applicants contend that Tasracing would be acting in excess of jurisdiction if it were to issue the warning-off notices. The contention is advanced on four related grounds, two of which contain a number of sub-grounds. However, counsel for the applicants submits, correctly in my respectful opinion, that all of the grounds distil to the question of whether the express legislative power conferred on Tasracing to issue a warning-off notice, having regard to the text, context and purpose of the RR Act, excludes matters concerning the "integrity" of the conduct of racing and allegations of breach of the Rules of Racing. The applicants contend that such matters fall exclusively within the power of the Director and the stewards, and not Tasracing.
26 The respondents contend that there is no textual or contextual reason to limit or read down Tasracing's power to issue the proposed warning-off notices.
The first and second grounds
27 The question of statutory interpretation which is central to the applicants' contentions is squarely raised by the first and second grounds, which may conveniently be dealt with together. By the first ground, the applicants assert that notices based on the alleged breaches of the AHRR referred to in the Murrihy report "fall only for consideration within the functions and powers of the Director or the stewards and not Tasracing". The second ground asserts that the RR Act, on its proper construction, does not authorise Tasracing to issue the warning-off notices because the grounds are "substantially founded on issues of integrity and/or suspicion of breaches of the AHRR".
28 The correct approach to statutory construction was recently restated by the High Court in AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10 at [21]. The interpretation of a statutory provision, in this case s 54 of the RR Act, must "begin with a consideration of the text itself"[37], that is, the text of the statute as a whole.[38] Ascertaining the meaning of the text requires a consideration of its context, which includes the general purpose and policy of a provision and, in particular, the mischief it is seeking to remedy[39]. Those principles are supplemented by the Acts Interpretation Act 1931 which provides that an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object.[40]
[37] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 ("Alcan") at 46 [47][38] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 at 304 per
[39] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and
[40] Acts Interpretation Act 1931, s 8A(1)10 No 17/2024
In the case of ambiguity consideration may be given to extrinsic material, including a second reading speech made to a House of Parliament.[41]
[41] Acts Interpretation Act 1931, s 8B(3)(f)29 The applicants also relied on the following passage from the reasons of Gordon, Edelman, Steward and Gleeson JJ in ENT19 v Minister for Home Affairs[42]:
[42] [2023] HCA 18; 97 ALJR 509 at [86]-[87]"86 The starting point for the ascertainment of the meaning of a provision is its text, while at the same time regard is to be had to its context and purpose. Of course, the statutory context of regulations includes the Act under which the regulations were made and are sustained. Context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense, including by reference to legislative history and extrinsic material. As Kiefel CJ, Nettle and Gordon JJ explained in SZTAL v Minister for Immigration and Border Protection:
'This is not to deny the importance of the natural and ordinary meaning of a word ... Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.'
87 The context of the words, consideration of the consequences of adopting a provision's literal meaning, the purpose of the statute and principles of construction may lead a court to adopt a construction that departs from the literal meaning of the words of a provision. One such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. As expressed by Gageler J in SAS Trustee Corporation v Miles, 'statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means'. Where conflict appears to arise in construing an Act, 'the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions', and this 'will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended." (Footnotes omitted)
30 The applicants contend that the power to issue a warning-off notice conferred on Tasracing by s 54(2)(a) of the RR Act is not a "free-standing power", and does not extend to warning-off a licensed person where the grounds for warning-off are substantially founded upon issues of integrity and/or suspicions of breach of the AHRR. That is so, it is submitted, because the scheme of the RR Act is such that the power to deal with matters of integrity and allegations of breach of the AHRR is conferred in specific terms upon the Director, and, through the AHRR, upon the stewards. The applicants point out that, by s 6 of the RR Act, the Director is "responsible for" specified matters including to grant licences[43], to regulate and control racing so it is conducted with integrity[44], to research and investigate racing integrity and related matters[45], and to ensure the Rules of Racing are properly enforced by stewards[46]. The Director also has power to conduct inquiries[47]. In contrast, the applicants argue, the powers and functions conferred on Tasracing contain no reference to "integrity", do not confer power to grant or refuse licenses, confer no power to appoint, train or monitor stewards[48] and expressly preclude Tasracing from appointing or dismissing a steward, from
[43] RR Act, s 6(2)(f)[44] RR Act s 6(1)(a)[45] RR Act, s 6(1)(c)[46] RR Act, s 6(2)(d)[47] RR Act, s 7(2)(a)[48] RR Act, s 11(1)(m)(i) and s 5111 No 17/2024
authorising a person to perform or not perform the function of a steward and from performing a function of a steward in its own right[49]. As a result, Tasracing may not direct the stewards to exercise their power under the AHRR to conduct an inquiry or investigation into a suspected breach of the AHRR, or control or direct how the power is to be exercised. The applicants argue that the context of the legislation separates functions of integrity, which fall to the Director and the stewards, from commercial and corporate functions, which fall to Tasracing.
[49] RR Act, s 51(7)31 The applicants contend that the effect of these provision is to limit the jurisdiction of Tasracing to issue a warning-off notice to matters other than integrity and allegations of breaches of the AHRR. They submit that the conclusion is strengthened when consideration is given to the second reading speech made by the then Minister to the House of Assembly on 25 November 2004 on the introduction of the Racing Regulation Bill 2004. The Minister said:
"The overarching principle underpinning the restructure is the separation of integrity and commercial functions, with integrity matters to become the responsibility of Racing Services Tasmania. Commercial matters will remain the responsibility of the three code councils and TOTE Tasmania.
Mr President, the Government is committed to delivering the highest level of integrity in the racing industry. This, in turn, will result in increased confidence in the racing product, maximising betting turnover and associated returns to the racing industry. The changes are consistent with national trends to separate integrity and commercial functions, and will overcome any real or perceived conflicts of interest in the decision making process.
… The restructure will result in Racing Services assuming certain operational functions currently performed by code councils. These will include handicapping, grading, field selections, barrier draws, box draws, nominations and acceptances for both harness and greyhound codes, together with responsibility for all stewarding matters."
32 In my respectful view, the Minister's statements made in the second reading speech do little to advance the applicants' arguments. They were made in a different context and, in the twenty years since then, there has been significant legislative change. The RR Act was part of a legislative restructure to replace the scheme for administration of racing then in place under the Racing Act 1983 and the Racing Regulation Act 1952. Under the former regime, each racing code was controlled by a separate racing council. Each council made and administered the rules of racing and stewards were appointed under the Racing Regulation Act for the council. Each council was, however, subject to the direction of a Government business enterprise called TOTE Tasmania, the functions of which centred on the conduct of totalizator betting. What was referred to by the Minister in the second reading speech as "Racing Services Tasmania" was not identified and was not a statutory entity under the new Act. The principal change made by the new Act was to remove general control and administration of racing from the three code councils in favour of the Director and to supplement the regulatory scheme by introduction of racing regulatory panels for each code.
Under the pre-2004 legislative regime, a club committee, a code council and the Director had power to issue a warning-off notice. That did not change under the new Act. The racing councils remained in existence until 11 December 2008 when the Racing Regulation Amendment (Governance Reform) Act 2008 was introduced. Under that Act, the Tasmanian Racing Board was established and the parts of the Act which provided for the code councils and the regulatory panels for each code which had until then been in existence were repealed. The Board became the responsible rule making authority. The 2008 Act also established an entity called the Integrity Appeal Board the function of which was to hear appeals from decisions of the Director, including decisions to issue a warning-off notice.
12 No 17/2024
34 Tasracing came into existence the following year pursuant to the Racing (Tasracing Pty Ltd) (Transitional and Consequential Provisions) Act 2009 and the Racing (Tasracing Pty Ltd) Act 2009. The result of that legislative change was that Tasracing replaced and assumed the functions of the Tasmanian Racing Board. The other legislative change which should be referred to occurred in 2015 when the Racing Regulation Amendment (Board Amalgamation) Act 2015 abolished the Integrity Appeal Board and provided for all appeals to be made to the Tasmanian Racing Appeal Board.
35 At every stage of this process of legislative and regulatory change it was open to the Parliament to remove or limit the power of Tasracing, or the respective entities which previously exercised the equivalent functions, to issue a warning-off notice. It did not do so. Instead, the warning-off power conveyed by s 54, as it always has been, is expressed in broad terms and in terms which suggest that the discretion to issue such a notice is not limited by subject matter. The applicants contend that some indication is given of the type of situation in which Tasracing may issue a notice under s 54 is given by subs (4)(a) and (b) which provide that unregistered bookmaking and unauthorised betting are grounds for issuing such a notice. That argument does not advance the applicants' contentions because the same provision applies to the Director and, in any event, expressly do not limit the discretion under subss (1) and (2).
36 The applicants also contended that, when considering the jurisdictional question, it is relevant to consider the absence of any power for Tasracing to conduct an inquiry or direct the conduct of an inquiry. In the context of the statutory scheme explained earlier in these reasons, it is not a matter which removes or limits the power of Tasracing to issue the proposed notices. The applicants sought to distinguish the statutory functions of Tasracing and the Director. However, the power of the Director to issue a warning-off notice under s 54(1) of the RR Act is not conditioned on the Director's own power to conduct an inquiry or on the conduct of, or decision to conduct, an inquiry by stewards. The legislation permits a situation in which the Director may issue a warning-off notice independent of any inquiry, whether an inquiry by the Director[50] or an inquiry by the stewards under the AHRR. I also agree with the respondent's submission that the requirement in s 54(6) that Tasracing notify the Director of the issue of a warning-off notice within five days is a mechanical provision, not an indication that responsibility for the conduct which is the subject of the notice should thereafter become the responsibility of the Director or stewards.
[50] Refer RR Act, s 107(1) and Schedule 4.37 The applicants submit that the court may determine that the proposed notices exceed the jurisdiction of Tasracing without conclusively determining the limits on its power to issue a warning- off notice or describing the circumstances in which it may properly do so. However, in my view, the questions are unavoidable. The applicants' contentions assume a delineation between matters which concern "integrity" and breach or enforcement of the Rules of Racing and matters which do not. However, the distinction is not so easy to describe in terms which enable identification of matters which, if the applicants are correct, fall outside the jurisdiction of Tasracing. The applicants variously submit that the power should be confined to persons who "do not have rights, privileges and obligations under the Rules", or to matters which "concern the proper functioning of racecourses" or "for suspected breaches of the Rules not dealt with by stewards." In my respectful view, none of those suggested limitations withstand scrutiny. The RR Act contains no definition of the term "integrity". It is defined in the Macquarie Dictionary to relevantly mean "soundness of moral principle and character; uprightness; honesty." In the context of the RR Act I would take the term to include not only honesty but according to a sufficient standard of care, competence and propriety. I reject the proposition that the RR Act should be interpreted such that the power to deal with all matters which fall within that description are removed from Tasracing. It is difficult to think of a situation in which, if that were true, Tasracing could ever issue a warning-off notice. The applicants contend that the power may still be exercised to deal with unlicensed persons, who may fall beyond the power of the stewards. However, in that context it may also be pointed out that some Rules of Racing have broad
13 No 17/2024
application and apply to all persons, not just licensed persons. For example, the AHRR, r 231, provides that a person shall not threaten, harass, abuse, intimidate or assault anyone employed, engaged or participating in the harness racing industry or otherwise having a connection with it. It is a matter which clearly concerns integrity, but I would reject the proposition that it is not within the power of Tasracing to prohibit such a person from attending a racecourse, whether the person was licensed or not. Similarly, and of more direct relevance, rr 218 and 218A respectively provide that a person having responsibility for the welfare of a horse shall not fail to care for it properly and shall not mistreat a horse. In the rule, to "mistreat" means to abuse or treat a horse badly, cruelly or unfairly. Again, these matters go to integrity in the sense I have described, but I would reject the proposition that the power of Tasracing to warn off a person where there is credible evidence of such conduct depends on whether or not the person is licensed or whether the stewards or Director also have power to deal with that person.
38 I am not persuaded that the text, context or purpose of the legislation is such as to require the
express terms of s 54 to be read down to limit the power of Tasracing as the applicants contend. If it
were necessary to tie the exercise of the power to the general functions and powers of Tasracing I
would add that there could hardly be a factor more important to the development, promotion and
viability of racing as a commercial undertaking than public confidence that it is conducted withhonesty and propriety and with utmost regard to the welfare of the animals which participate in racing. The first and second grounds are not made out.
39
The third ground
40 By the third ground, the applicants contend that to issue the notices would be:
(i) an improper exercise of power because the function and power to enforce the AHRR is for the Director and the stewards, not Tasracing, and Tasracing is "not capable of performing or authorising the functions of a steward"; (ii) an exercise of power for a purpose other than which the power was conferred;
(iii) an exercise of discretionary power without regard to the merits of the applicants' cases; (iv) an unreasonable exercise of power; (v) an exercise of power which would result in uncertainty; and (vi) an abuse of process.
41 It is first to be pointed out that no decision to issue the proposed notices has yet been made by Tasracing. The originating application and the particulars which accompany it are directed to the assertion that Tasracing would be acting in excess of jurisdiction if it were to proceed to exercise the notices. Sub-paragraphs (i) and (ii) of this ground must be resolved against the applicants for the reasons already stated in relation to the first and second grounds. The applicants contend that the exercise of the power to warn off in these circumstances would be improper because Tasracing has no express power to enforce the AHRR, that the express power to do so is conferred on the Director and the stewards and Tasracing is not capable of performing the function of a steward or directing performance of that function. Similarly, the applicants contend that Tasracing's power to warn off is limited to "preventing unauthorised or illegal conduct on racecourses which it controls." Identification of the scope and purposes for which the statutory power is conferred involves a process of statutory construction: Thompson v Randwick Corporation (1950) 81 CLR 87 at 106; R v Toohey; Ex Parte Northern Land Council [1981] HCA 74; 151 CLR 170. The applicants' contentions in support of these sub-grounds depend on the incorrect assumption that the scope and purpose of Tasracing's power to
14 No 17/2024
issue the proposed notices is limited in the manner contended by the applicants in support of the first and second grounds. I am not satisfied that the actuating reason for the decision is outside the scope of the purpose of the legislation.
42 Sub-paragraphs (iii), (iv), (v) and (vi) of this ground raise somewhat different issues but again may conveniently be considered together. They respectively contend that the exercise by Tasracing of its power to issue warning-off notices to the applicants would be "without regard to the merits of the applicants' cases", would be "so unreasonable that no reasonable person could exercise the power", the result would be "uncertain" and an "abuse of process". The contentions are advanced on the related assertions that:
• Tasracing relies only on the Murrihy report when Tasracing has no power to investigate the determinations in the Murrihy report, nor to establish a panel of stewards to do so; • Tasracing has no express power to suspend or cancel licences under the RR Act or the AHRR; • there is no imminent prospect of the applicants engaging in unlawful conduct or conduct deleterious to the racing industry; • the determinations of non-compliance in the Murrihy report could not, without more, result in the imposition of penalties; • if no stewards inquiry is commenced, or if no action is taken, it is then "uncertain" what is to occur. 43 None of these contentions deprive Tasracing of jurisdiction to issue the notices. They may be reasons that Tasracing may, in the exercise of discretion, determine to not issue a warning-off notice. They may also constitute reasons that a decision to issue a warning-off notice may be appealed to the TRAB. However, the power to issue the notices remains.
44 As is the case with the Director, Tasracing's power to issue a warning-off notice is conditioned only on the issuer being "satisfied that there are grounds to do so": s 54(1) and s 54(2). This is not a case in which there is a challenge to whether Tasracing in fact reached that state of satisfaction (noting that the time for consideration of that issue has not yet arisen) such as to amount to a failure to address a jurisdictional fact. The complaint that the issue of the warning-off notices would be unreasonable is an attack upon the proposed exercise of a discretionary power said to be unreasonable in the sense attributed to Associated Provincial Picture Houses Ltd v Wednesbury Corporation[51]. The argument must be rejected. Tasracing acted on a report prepared by a highly experienced person after extensive investigations which, subject to the qualifications explained earlier in these reasons, determined that each applicant had committed the conduct detailed in the report on which the proposed notices were based. In my view, the sort of illogicality or irrationality which must be demonstrated to amount to legal unreasonableness would not attend either Tasracing's determination that it was "satisfied that there were proper grounds" to issue the notices or, indeed, a decision to issue the notices. Both Tasracing's state of satisfaction and its decision to give notice of the proposed new notices were based on a "factual substratum"[52] and did not lack an "evident and intelligible justification"[53].
[51] [1948] 1 KB 223.[52] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [130].[53] Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332, at [76].45 There is nothing uncertain about the result of the issue of a warning-off notice in the proposed form. It will have the result expressed by the notice in accordance with s 54 (2)(a) and (b) for the time specified in the notice. The applicants' complaint is that, if warning-off notices are issued in the
15 No 17/2024
proposed form, each will be left in a state of uncertainty about what is then to occur, given that (at least at the time of the hearing of this application) no stewards inquiry had commenced. That is not the type of legal uncertainty which deprives Tasracing of jurisdiction to issue the notices. Again, it may form the basis of an appeal to the TRAB, but does not remove the jurisdiction of Tasracing to so act.
46 Finally, under this ground, the applicants complain of an "abuse of process" arising from the circumstances leading up to the letters for the lawyers for Tasracing sent on 20 and 27 February 2024. In substance, this ground suggests an abuse of process because Tasracing gave notice of the proposed issue of the further notices "irrespective of the outcome of the appeal" concerning the first notices, and when no stewards inquiry has yet commenced. The contentions may be relevant to whether Tasracing should exercise its discretion to issue the notices, but do not deprive Tasracing of the power to do so.
47 None of the sub-grounds of the third ground of the application are made out.
The fourth ground
48 This ground asserts that "a breach of the rules of natural justice is happening, or is likely to happen, relating to the proposed warning-off notices". The substance of the contention is that, having breached its obligation to extend procedural fairness to the applicants by issuing the first notices without allowing the applicants an opportunity to be heard, and having given notice of its intention to issue further notices before the result of the appeal was known, Tasracing "was not brining an independent mind to a genuine consideration of whether to issue the proposed warning-off notices, and there was no proper procedural fairness being afforded to the applicants."
49 The TRAB found that Tasracing failed to afford procedural fairness to the applicants because the notices issued on 2 February 2024 invited the applicants to show cause why the notices should be rescinded rather than an opportunity to show cause why the notices should not be issued at all. The correspondence on 20 and 27 February and the proposed new notices was not in those terms. This time, the applicants were invited to show cause as to why the notices should not be issued. That process was interrupted by these proceedings. This ground could only succeed if it were established that the breach of procedural fairness found by the TRAB to have occurred concerning the first warning-off notices could not be remedied. The evidence falls far short of establishing that this is so. Nor does the evidence establish actual or apprehended bias such that Tasracing is irretrievably deprived of the power to issue the proposed notices. Tasracing has an ongoing duty to extend procedural fairness to each applicant. I have no evidence of whether, in the time which has lapsed since the relevant correspondence, the applicants have availed themselves of the opportunity to be heard. If submissions are made, Tasracing must take them into account. Be that as it may, it has not been established that there has been or will be such a breach of procedural fairness as to deprive Tasracing of jurisdiction to issue the notices, if in fact that occurs.
50 This ground of the application is not made out.
Result and orders
51 None of the grounds of the application are made out. The general order to show cause and the interlocutory injunction ordered on 1 March 2024 are set aside. The originating application is dismissed.
per Hayne, Heydon, Crennan and Kiefel JJ and SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137 at
149 [20] per Kiefel CJ, Bell and Nettle JJ, 157 [41] per Gageler J, 162 [64] per Edelman J.
Gibbs CJ, 320 per Mason and Wilson JJ.
Gummow JJ; Alcan [2009] HCA 41; 239 CLR 27 at 47 [47] per Hayne, Heydon, Crennan and Kiefel JJ.
0