Australia: Decision to suspend harness racing licenses for cobalt doping overturned: licencees entitled to procedural fairness

Last Updated: 14 June 2017
Article by Michael Bishop and Lachlan Chisholm

On appeal from the New South Wales Supreme Court late last year, harness racing licensees Neil Day and Dean McDowell (Appellants) were successful in their claim to overturn the decision by Harness Racing New South Wales (HRNSW) to suspend their licences. The Court of Appeal held that the power of statutory bodies to affect someone's rights or interests may not be exercised until those potentially affected have been given a chance to respond.

Suspension for Banned Substance

On 30 April 2014, HRNSW suspended the Appellants' harness racing licences following a routine urine specimen test of their racing horses. The results showed that each horse tested exhibited elevated levels of cobalt; a substance banned beyond permitted levels.

Importantly, HRNSW suspended the Appellants' licences before any inquiry was held, before any formal charges were laid, and before any determination of guilt or punishment was imposed. This formed the basis for the Appellants' claim, which also included challenges to the HRNSW's power to create rules regarding the acceptable threshold for cobalt levels in racehorses.

Cobalt, found in many supplements and pre-mixed feeds for horses, is proven to enhance physical performance, as it increases the rate at which red blood cells are generated – allowing more oxygen to flow through the body and allowing peak performance levels to be maintained for a longer duration.

The initial decision

At trial, the Appellants argued that HRNSW had failed to afford them procedural fairness; the Appellants were not given a chance to be heard before their licences were suspended. The Appellants further challenged the validity of the decision to codify "Local Rule 188A", which prohibited levels of cobalt in urine above the specified threshold.

The Court held at first instance that the principles of procedural fairness did not apply in such circumstances. The Court reasoned that if HRNSW had given the Appellants the opportunity to be heard, there was nothing that the Appellants could have said that would have affected the outcome.

The Court of Appeal takes the reins

The NSWCA overturned the primary judge's decision and found that HRNSW ought to have given the Appellants the opportunity to be heard prior to suspending their licences. As noted by the NSWCA, HRNSW's power to make decisions affecting the rights of harness racing licence holders comes from the Harness Racing Act 2009 (NSW) (Act).

According to the NSWCA, the power afforded to HRNSW under the Act was effectively a power to prejudice or destroy the rights and interests of harness racing licence holders. As such, any decision by HRNSW to suspend licences attracted the obligation to afford procedural fairness.

It followed that HRNSW's failure to satisfy that obligation made its decision to suspend the Appellants' licences invalid.

For the Appellants, this decision was bittersweet, as the NSWCA also held that HRNSW's decision to make "Local Rule 188A" with respect to cobalt was indeed within the powers conferred on it by the Act.

The importance of procedural fairness

The NSWCA's decision in this case implies that the obligation to afford procedural fairness may still apply in circumstances where satisfying such an obligation has nil effect on the ultimate decision being made. It can be expected that members of the wider community will rely on this case in similar circumstances in other sports, where decisions have been made that threaten participants' livelihoods.

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Authors
Michael Bishop
Lachlan Chisholm
 
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