JUDGMENT OF THE COURT

A The appeal is dismissed.
BThe appellant must pay the second respondent costs of $15,000 and reasonable disbursements, to be fixed if necessary by the Registrar.
REASONS
(Given by Blanchard J)

[1]       This appeal challenges the validity of a random drug-testing regime for jockeys contained in the Rules of Racing of New Zealand Thoroughbred Racing (NZTR) made prior to the enactment of the Racing Act 2003 but required by that Act to be regarded as having been made for the purposes of s 29 of the Act.[1] The Act requires every racing code to make and maintain in force rules regulating the conduct of racing by that code.[2] Without limiting that requirement, s 29(2)(d) authorises rules to provide, inter alia, for “the conduct and control of race meetings, including safety requirements”. Section 29(2)(i) authorises rules providing for “any other matters relating to the conduct of races and racing that the racing code thinks fit”. But, by virtue of s 31(1), any provision of any racing rule that is in conflict with any provision of the Act, any other Act, or the general law of New Zealand is invalid. Section 32 requires the racing code to send a copy of the rules to the Minister responsible for the administration of the Act (the Minister of Racing) and declares that the Regulations (Disallowance) Act 1989 applies to them as if they were regulations.[3] They must also be notified in the Gazette. They are not, however, transformed by this process into regulations. They remain rules of a domestic body made under authority delegated by Parliament.
[1]      Section 29(3).
[2]      Section 29(1).
[3]The fact that rules could have been disallowed, but were not, does not immunise them from a challenge in the Courts: McEldowney v Forde [1971] AC 632 at p 644.
[2]       NZTR’s Rules of Racing provide that a Racecourse Inspector may, and has power to:[4]
require a rider or stablehand to permit a sample of his blood, breath, urine, saliva or sweat (or more than one thereof), to be obtained from him by or under the supervision of a registered medical practitioner or by an authorised person at such time and place as the Racecourse Inspector shall nominate.
[4]      Rule 226(2)(d).

Every jockey’s licence to ride contains a condition that the licence holder must permit a urine sample to be so obtained whenever so required; and licence holders are deemed to accept all conditions imposed on their licences.[5]
[5] Rule 310(2) and (3).
[3] It is an offence against the rules for a jockey to have any controlled drug…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cropp v Judicial Committee

Details

AGLC: Cropp v Judicial Committee [2008] NZSC 46
Case: [2008] NZSC 46
Decision Date: 17 June 2008

CaseChat Overview and Summary

The appeal by Ms Lisa Kathryn Cropp against the random drug-testing regime for jockeys implemented by the New Zealand Thoroughbred Racing (NZTR) was dismissed by the Supreme Court of New Zealand. The regime, contained within the Rules of Racing of NZTR, was challenged on the basis of its validity under the Racing Act 2003 and its compatibility with the New Zealand Bill of Rights Act 1990. The central issue was whether the random drug-testing rules were authorised by the Racing Act, interpreted in accordance with the Bill of Rights.

The Court examined whether the drug-testing rules were authorised by the Racing Act, specifically under the statutory power to make rules for the conduct and control of race meetings, including safety requirements. The Court found that the rules were authorised as they were intended to ensure the safety of jockeys and horses by deterring drug use, which could lead to unsafe riding practices. The Court rejected arguments that the rules were overbroad or unreasonable, noting that the inherently dangerous nature of horse racing justified the need for random drug-testing to promote safety.

The Court also addressed concerns that the rules did not specify particular times, places, or circumstances for testing, or restrict the use of samples obtained. It was held that the rules could not be considered invalid on these grounds, as they were designed to achieve the overarching purpose of safety at race meetings, and the flexibility of the rules was necessary to effectively achieve this purpose.

Regarding the contention that the rules were invalid because they did not contain a protection against self-incrimination, the Court held that the rules did not require jockeys to provide testimonial information, and thus the privilege against self-incrimination did not apply.

Ultimately, the Court found that the drug-testing rules were validly made under the authority of the Racing Act and did not infringe upon the fundamental rights protected by the Bill of Rights. The appeal was dismissed, with costs awarded to the second respondent.

Orders