Racing Appeals Tribunal Act 1983

The Act directly affects three broad categories of participant.

First, racing industry participants – licensed trainers, drivers, jockeys, bookmakers, owners, breeders, stablehands and club officials – who are aggrieved by a steward’s decision, a racing association ruling, an Appeal Panel outcome, or a direct decision of Racing NSW, HRNSW or the Greyhound Welfare and Integrity Commission. Section 15(1) gives any such “person who is aggrieved” a statutory right to appeal in accordance with the regulations. Section 15A(1) extends the same right to decisions of a greyhound racing club or a steward appointed by the Greyhound Welfare and Integrity Commission. HRNSW, Racing NSW and certain clubs are also given express appeal rights in defined circumstances (ss 15(2), 15B(2)).

Second, the racing controlling bodies themselves. Racing NSW, HRNSW, Greyhound Racing NSW and the Greyhound Welfare and Integrity Commission are subject to the Tribunal’s supervisory jurisdiction and must fund its operations when they lose appeals (s 20). They are also bound by the Tribunal’s power to require production of documents and attendance of their officers (s 16A).

Third, the Tribunal members, acting members and expert assessors. Qualified persons appointed under ss 6 and 7, and assessors appointed under s 8A, are subject to the vacancy, remuneration, removal and conflict rules in Part 2. Judges appointed to the Tribunal retain their judicial status and rights (s 11), while non-judicial members are protected from the Government Sector Employment Act 2013 (s 14).

The Act indirectly affects the broader betting public and the integrity of wagering markets because many appealed decisions concern prohibited substances, interference, betting irregularities or licensing that can affect race results and payouts. However, the statute does not give the general public standing; only “aggrieved” persons within the statutory classes may appeal.

Transitional provisions in Schedule 1, clauses 5–10, continue to affect parties who had matters before the former Greyhound and Harness Racing Appeals Tribunal or the former Greyhound and Harness Racing Regulatory Authority. Those parties are now deemed to be before the Racing Appeals Tribunal on the same terms.

Rights of appeal are the central feature. A person aggrieved by an Appeal Panel decision, a racing association decision on delegation, a refused hearing, or a direct Racing NSW decision has a right to appeal to the Tribunal (s 15(1)). Parallel rights exist for greyhound club and steward decisions (s 15A(1)) and for HRNSW and harness Appeal Panel decisions (s 15B(1)). The controlling bodies themselves enjoy limited appeal rights (ss 15(2), 15B(2)).

Right to a new hearing. Appellants are entitled to run their case afresh; the Tribunal is not confined to the record below (s 16(1)).

Procedural rights. Parties are entitled to open-court hearings (s 16(2)), to compel witnesses and documents via Tribunal notice (s 16A), and to receive conduct money when served (s 16A(3)).

Rights of the Tribunal. The Tribunal may appoint assessors (s 8A), issue notices with coercive force (s 16A), stay decisions pending appeal where regulations permit (s 18(1)(b)), and exercise the full range of original decision-maker powers on appeal (ss 17, 17A).

Duties imposed on racing bodies. They must pay the Tribunal’s expenses (s 20(1)), supply staff when directed (s 19(2)–(3)), and treat the Tribunal’s decision as their own (ss 17(2), 17A(2)).

Duties on persons served with notices. A person served under s 16A must attend and produce documents unless they have a reasonable excuse; breach carries a serious criminal sanction (100 penalty units or 6 months imprisonment).

Duties on the Minister. The Minister appoints the Tribunal and acting members on Attorney General recommendation (ss 6, 7), determines remuneration for non-judicial members (s 12), may remove non-judicial members for cause (s 13(3)), approves use of public servants (s 19(1)), and can direct racing bodies to supply staff (s 19(2)).

Rights of judges appointed to the Tribunal. Their judicial tenure, salary, rank and pension rights are preserved (s 11).

The Act creates two principal offence provisions. The more serious is s 16A(2): failure without reasonable excuse to comply with a Tribunal notice to attend or produce documents carries a maximum of 100 penalty units or 6 months imprisonment or both. Proceedings are summary and may be brought in the Local Court (s 22).

The lighter offence is s 19(3): a racing controlling body that refuses to comply with a Ministerial direction to supply staff commits an offence punishable by 5 penalty units.

Regulations made under s 23(2) may impose penalties not exceeding 5 penalty units for any contravention.

Enforcement of monetary orders is civil: if Racing NSW, Greyhound Racing NSW or HRNSW fails to meet its share of Tribunal expenses, the Minister may sue for the amount as a debt in any court of competent jurisdiction (s 20(2)).

There are no direct contempt powers in the Act; the Tribunal relies on the statutory offence in s 16A and, where necessary, the inherent jurisdiction of the Supreme Court to protect its own processes.

The Act is deliberately embedded in the suite of racing legislation. It cross-references and relies upon the Thoroughbred Racing Act 1996 for the constitution of the Appeal Panel and the powers of Racing NSW (ss 4(1), 15, 17). It interacts with the Harness Racing Act 2009 for HRNSW decisions and harness Appeal Panel appeals (ss 4(1), 15B). Greyhound appeals now reference the Greyhound Racing Act 2017 and the Greyhound Welfare and Integrity Commission (s 15A).

The Betting and Racing Act 1998 supplies the meaning of “racing controlling body” used in ss 8A(5) and 19(4).

The Government Sector Employment Act 2013 is expressly disapplied to both Tribunal members (s 14(1)) and expert assessors (s 8A(3)). The office of Tribunal is deemed not to be an office of profit under the Crown (s 14(2)).

The Mental Health Act 1958 (now repealed and replaced) was historically referenced in the vacation-of-office provisions (s 13(2)(c)); current mental-health incapacity would be assessed under successor legislation but the section has not been updated, creating a minor interpretive lacuna.

The Industrial Relations Act 1996 is engaged indirectly because “court” is defined to include the Industrial Relations Commission (s 4(1)), ensuring that industrial aspects of racing disputes remain within the Tribunal’s purview where they intersect with steward or club decisions.

Transitional provisions in Schedule 1, Part 4, map the repealed Greyhound and Harness Racing Administration Act 2004 onto the current Act, preserving continuity of orders, pending proceedings and even the old regulation until new regulations are made.

The most recent substantive change was effected by the Racing and Gambling Legislation Amendment Act 2022, which substituted s 15B. The new section expanded HRNSW’s appeal rights and clarified that an appeal lies where the Appeal Panel neglects or refuses to hear an appeal or fails to make a decision. The transitional provision in Schedule 1, clause 13, grandfathers decisions made before the substitution. The change was driven by a desire to give the industry regulator symmetrical appeal rights and to close loopholes where the Appeal Panel simply sat on its hands.

The 2019 No 12 amendments modernised service rules (new s 21), increased the penalty in s 16A(2) from 20 to 100 penalty units, and made minor adjustments to assessor and staff provisions. These updates reflected contemporary needs for electronic service and stronger sanctions for non-compliance.

The 2017 No 13 amendments aligned greyhound provisions with the creation of the Greyhound Welfare and Integrity Commission, substituting new s 15A and updating cross-references.

The 2009 Racing Legislation Amendment Act was the most transformative: it abolished the separate Greyhound and Harness Racing Appeals Tribunal, folded its jurisdiction into the Racing Appeals Tribunal, inserted ss 15A, 15B, 17A and new cost rules in s 20, and added the bulk of Schedule 1 transitional provisions. The policy intent was to rationalise appeal structures, reduce duplication and ensure consistent standards of procedural fairness across all three codes.

The 2004 amendments fundamentally rewrote the thoroughbred appeal pathway, introduced the “new hearing” rule in s 16, and gave the Tribunal broader remedial powers.

Because the Tribunal’s decisions are declared final and are deemed to be the decisions of the original bodies (ss 17(2), 17A(2)), judicial review is the only avenue to the Supreme Court. Challenges have typically alleged denial of procedural fairness, jurisdictional error, or that the Tribunal asked itself the wrong question.

A recurring controversy has been the interplay between the Tribunal’s “fresh evidence” jurisdiction and the rules of racing that impose strict liability for prohibited substances. Appellants sometimes argue that the Tribunal must admit scientific evidence unavailable at first instance; the Tribunal has generally accepted such evidence but must still apply the racing rules as they stand.

Another area of contention is the scope of “aggrieved person”. Courts have interpreted the term broadly, consistent with the beneficial nature of the appeal right, but have drawn the line at purely commercial third parties who are not themselves the subject of the decision.

The constitution of the Tribunal has been challenged on the basis that a part-time acting member who also holds a racing-industry consultancy creates an apprehension of bias. Section 7(3) prevents the permanent member and an acting member sitting on the same appeal, but does not address other potential conflicts; the common-law bias rules continue to apply.

The deemed-decision fiction has produced litigation where a participant seeks to appeal a Tribunal decision to another statutory body that no longer exists because the Tribunal has stepped into its shoes. Courts have generally held that the statutory fiction operates only for the purposes of the racing rules themselves, not to create new appeal rights.

No challenge has yet succeeded in striking down the entire statutory scheme, but the accumulation of cross-referenced legislation has made the appeal pathway opaque, leading to occasional jurisdictional arguments at the threshold.

Most practitioners assume the Tribunal is bound by the rules of evidence; it is not. Section 16(1) permits fresh evidence without any precondition of “special reason”, and the Tribunal routinely receives hearsay, opinion evidence from industry experts and even unsworn statements. The only real limit is relevance and weight.

Another trap is believing that a stay is automatic. The Act does not itself stay the underlying decision; a stay must be obtained either under the regulations made pursuant to s 18(1)(b) or by separate application to the Tribunal or Supreme Court. Many participants discover too late that their disqualification has already taken effect.

The cost provisions in s 20 are asymmetric. A successful appellant does not automatically recover costs; the Tribunal has no express power to award costs against the racing body unless the regulations so provide. Conversely, the racing body must pay the Tribunal’s own expenses even if it wins.

Section 16A notices are deceptively powerful. They can be served on any person, not merely parties. A journalist or punter who holds relevant footage can be compelled to produce it. The “reasonable excuse” defence has been narrowly construed; inconvenience or commercial sensitivity has not sufficed.

Transitional provisions in Schedule 1 are not merely historical. Clause 13 continues the pre-2022 version of s 15B for decisions made before the 2022 amendment. Failure to check the date of the original decision can lead to arguing the wrong statutory test.

The definition of “qualified person” (s 4(1)) includes retired judges “whether or not in New South Wales”. This has allowed the appointment of former interstate or Federal Court judges, but it also means that a retired judge who has since been disqualified in another jurisdiction could theoretically be appointed unless the Minister exercises the removal power in s 13(3).

Finally, many lawyers overlook that the Tribunal may sit in multiple panels simultaneously (s 7(3)) provided the permanent member and an acting member do not sit on the same appeal. This can produce apparently inconsistent outcomes on similar facts if different assessors or acting members are used; there is no stare decisis rule binding one panel to another.

For racing participants contemplating an appeal:

1. Identify the exact decision and the statutory pathway (s 15 for thoroughbred, s 15A for greyhound, s 15B for harness).
2. Check the time limit and any prescribed fee in the regulations (currently the Racing Appeals Tribunal Regulation 2015).
3. Gather all fresh evidence early; the Tribunal will not usually grant adjournments once the hearing date is fixed.
4. If a witness or document is outside your control, request the Tribunal to issue a s 16A notice at least 14 days before the hearing.
5. Serve all material on the opposing racing body in accordance with the service rules in s 21.
6. Consider whether an interim stay is required and apply promptly.

For racing controlling bodies:

1. Maintain accurate records of every steward, committee and Appeal Panel decision so that the Tribunal file can be produced within 7 days of a notice.
2. Budget annually for Tribunal expenses; the obligation under s 20(1) is strict and recoverable as a debt.
3. Ensure staff directed to assist the Tribunal under s 19 are released; the 5 penalty unit fine is small but reputational damage is not.
4. When the Tribunal varies or substitutes a decision, treat it as your own for all purposes of the Rules of Racing and implement it immediately.

For legal practitioners appearing before the Tribunal:

1. Remember it is not a court of law; address the Tribunal as “Sir/Madam” or “Tribunal Member”, not “Your Honour”.
2. Focus on the merits and the regulatory purpose rather than technical evidentiary objections.
3. Prepare cross-examination on the basis that the Tribunal may have an industry assessor who already understands stable practices.
4. Cite specific rules of the relevant code (e.g. Australian Rules of Racing r 177 for prohibited substances) and show exactly how the original decision-maker erred or why the substituted decision is preferable.
5. After the hearing, monitor the Tribunal’s written reasons; although not required by statute they are almost always published and will bind the parties.

For the Tribunal itself and the Minister:

1. Keep the list of qualified acting members current and maintain the seniority order required by s 7(1A).
2. When appointing assessors under s 8A, record the consultation with the racing body and specify remuneration clearly to avoid later disputes.
3. Use the regulation-making power in s 18 to prescribe standard directions, electronic filing and costs scales so that practice is consistent across codes.
4. The Minister should review the list of non-appealable matters (permitted by s 18(2)) every three years to ensure that only truly minor or administrative decisions are excluded.

Compliance ultimately turns on understanding that the Tribunal is not an adversarial court but a specialist merits reviewer embedded within the racing regulatory pyramid. Parties who treat it as such, prepare fresh evidence thoroughly and respect the statutory timelines achieve the best outcomes.