Racing (Jockeys Accident Insurance) Regulation 2006

The central concept is that of “applied NSW Acts”. The regulation incorporates by reference two NSW statutes as modified by section 5, treating them as if they were ACT law for the purposes of compensation for injuries to ACT jockeys. The dictionary defines “1987 NSW Act”, “1998 NSW Act”, “ACT jockey”, “applied NSW Acts”, and “injury” by cross-reference to section 61A of the Racing Act 1999. That section (not reproduced in the regulation) presumably defines an “ACT jockey” as a person licensed or registered under the Racing Act to ride in races, and “injury” likely adopts the workers’ compensation definition. Because the primary definitions sit in the Racing Act, any amendment to that Act automatically flows into the regulation’s interpretation.

The regulation uses a “pick-up” technique: it does not re-enact the NSW provisions but renders them applicable as ACT law. This is constitutionally permissible under the ACT’s self-government powers but creates dynamic referencing - if the NSW Acts are amended in NSW, those amendments may automatically apply in the ACT unless the Racing Act or this regulation provides otherwise. The source does not specify whether the applied Acts are as in force at a particular date or as amended from time to time; given the absence of a fixed date, the general rule in applied law cases is that later amendments are picked up unless expressly excluded. This is a key variable that practitioners must verify against the Racing Act itself.

The exclusions listed in section 5 are just as important as the inclusions. They carve out sections that, had they applied, would have fundamentally altered the scheme. For example, the exclusion of section 9A of the 1987 NSW Act means that an ACT jockey does not need to show that employment was a substantial contributing factor to the injury. This potentially lowers the evidentiary bar for compensation. The exclusion of Part 4 Division 6 (uninsured liabilities) of the 1987 Act means there is no dedicated fund or special mechanism to compensate jockeys if their employer fails to insure - a significant gap. The exclusion of section 234 of the 1998 NSW Act (no contracting out) means that in the ACT, the protections against contracting out of the scheme may not apply; however, the Racing Act may contain its own anti-avoidance provisions. The exclusion of most of Chapter 4 Part 2 of the 1998 Act (claims procedures, notice requirements, medical disputes) means that the detailed procedural steps required in NSW are replaced by whatever general ACT law provides, plus the Civil Law (Wrongs) Act pre-court procedures for common law claims.

The concept of “ACT jockey” is the triggering status. Only a person falling within that definition can access this scheme. The regulation does not apply to trainers, strappers, or other racing participants, unless they qualify as jockeys when riding. The injury must be suffered “as an ACT jockey” - meaning while riding in a race or related activity covered by the Racing Act. This is a narrower scope than general workers’ compensation.

The regulation directly affects three groups: ACT jockeys, their employers (typically racing clubs or owners who engage jockeys), and insurers that underwrite the required accident insurance. Indirectly, it affects the ACT courts (Supreme and Magistrates) that will hear compensation disputes, and legal practitioners who advise on claims.

ACT jockeys are the beneficiaries of a mandatory insurance scheme that provides compensation for workplace injuries. Because the substantive entitlements are drawn from NSW workers’ compensation law, jockeys likely have access to weekly payments, medical expenses, and lump sum compensation for permanent impairment, subject to the exclusions (e.g., no commutation provisions from 1987 Act, so no buyout of future weekly payments). However, because the procedural machinery of NSW is largely excluded, jockeys may face a less streamlined claims process. For example, there are no NSW-style notification of decisions, nor a dedicated Workers Compensation Commission; instead, disputes go to the ACT courts, which may be slower and more costly. The application of the ACT Civil Law (Wrongs) Act pre-court procedures (mandatory mediation or settlement conference) before a common law damages claim can be litigated imposes additional steps and costs on jockeys seeking common law damages over and above statutory compensation.

Racing clubs and other employers bear the compliance burden. They must take out a policy of insurance that meets the minimum requirements of the applied NSW Acts, but only sections 159 and 160 of the 1987 NSW Act are preserved from the insurance part. This means the policy must contain the provisions required by NSW law (such as covering all liabilities under the Act), and the employer can be required by the insurer to reimburse an excess. However, because the broader insurance provisions (Part 7 of the 1987 Act) are excluded, employers do not face the full NSW regulatory framework with its licensing of insurers, premium setting, and mutual fund contributions. This may reduce costs for employers but also means less regulatory oversight. The exclusion of the uninsured liabilities division is a notable risk: if an employer fails to insure, there is no NSW-style Uninsured Liability Fund to pay compensation. A jockey would then have to rely on suing the employer directly, or perhaps on a claim against the Racing Fund if the Racing Act provides it (not in this regulation). Employers therefore have a strong financial incentive to ensure continuous cover to avoid personal liability.

Insurers must design policies that comply with the applied NSW Acts as modified. Because the 1998 NSW Act’s Chapter 7 Parts 3-10 (new claims procedures, enforcement, expedited assessment, court proceedings for work injury damages, costs) are largely excluded, the insurer’s administrative obligations are significantly lighter than under the full NSW scheme. However, the exclusion of division 6 (claims obligations enforcement) of Chapter 7 Part 3 means that the mechanisms for the regulator to enforce insurers’ claims handling are absent. Insurers still face liability for common law damages claims subject to the ACT pre-court procedures.

Legal practitioners must navigate a patchwork: NSW substantive law, ACT procedural law for common law claims, and the gaps left by the exclusions. The lack of a dedicated tribunal means all disputes are in the ACT courts, which have limited specialist workers’ compensation experience.

The regulation itself does not create duties or rights directly; it operates by importing them from the NSW Acts as modified. Consequently, the key duties and rights are those found in the applied NSW Acts, limited by the exclusions.

Employers’ duties: Under the applied NSW Acts, an employer of an ACT jockey must have a policy of insurance that covers all liabilities that may arise under the scheme. Section 159 of the 1987 NSW Act (preserved by the regulation) requires that certain provisions be included in insurance policies, and section 160 allows the insurer to recover any excess from the employer. The employer must also comply with the Racing Act 1999’s Part 5A (not reproduced in the regulation), which likely includes a requirement to maintain accident insurance as a condition of a race meeting licence. Failure to insure may lead to penalties under the Racing Act, or personal liability to pay compensation and damages.

Jockeys’ rights: An ACT jockey who suffers an injury has a right to compensation under the applied NSW Acts. This includes statutory benefits (weekly payments, medical expenses, lump sums for permanent impairment) calculated according to NSW formulae, but without the ability to commute weekly payments into a lump sum (since Part 3 Division 9 of the 1987 Act is excluded). The jockey also retains a right to claim common law damages for negligence, but any such claim is subject to the pre-court procedures in Chapter 5 of the Civil Law (Wrongs) Act 2002. This means the jockey must give pre-court notice, participate in a mandatory conference or mediation, and comply with time limits before filing a claim in court. The exclusion of section 9A of the 1987 Act means that to obtain statutory compensation, the jockey does not need to prove that the employment was a substantial contributing factor to the injury - a lower threshold than in NSW. However, for common law damages, the ordinary ACT law of negligence will apply, and the Civil Law (Wrongs) Act includes its own provisions on proportionate liability and damages caps (depending on the chapter).

Rights against third parties: The applied NSW Acts likely include provisions for the insurer to recover from third parties (subrogation), but the exclusion of Chapter 4 Part 2 Division 6 of the 1998 Act (restrictions on commencing court proceedings) may affect how jockeys can pursue third party claims.

No right to contract out: Notably, section 234 of the 1998 NSW Act (no contracting out) is excluded. This means that an employer and jockey could theoretically agree to modify or exclude some of the entitlements under the applied Acts, but that agreement would be subject to the Racing Act 1999 and general contract law. The Racing Act may contain its own anti-avoidance provisions; the regulation does not mention them. This is a potential vulnerability: without the “no contracting out” protection, a jockey might be pressured into accepting less favourable terms. However, the practical reality is that jockeys are likely covered under standard industry insurance arrangements that do not negotiate individual contracts.

The regulation itself creates no offences and sets no penalties. The front matter of the republication notes that the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation, but that is a generic note applicable to any offence provision that happens to be in the law. As drafted, there are no offence provisions in the seven sections. Therefore, the usual enforcement mechanisms arise from two sources: the Racing Act 1999 and the applied NSW Acts.

Under the Racing Act 1999, it is an offence to conduct a race meeting without the required insurance (see Part 5A, not reproduced, but likely enforceable by the racing controlling body or the ACT government). Penalties under the Racing Act may include fines, suspension of licences, or forfeiture of prize money. The regulation does not reference these, but they are part of the legislative scheme.

Under the applied NSW Acts as modified, the only preserved enforcement-related provisions are sections 159 and 160 of the 1987 NSW Act. Section 159 governs what an insurance policy must contain; a policy that does not comply is likely void or unenforceable. Section 160 allows the insurer to recover any excess from the employer - a private right of action, not a penalty. The exclusion of the 1998 Act’s Chapter 7 Part 3 Division 5 (enforcement of claims obligations) and Part 10 (administration) means there is no dedicated regulator in the ACT to audit compliance, investigate complaints, or impose administrative sanctions. Enforcement of the insurance requirement is therefore left to the courts: an uninsured employer can be sued by the injured jockey, or the racing controlling body may take action under the Racing Act. There is no Workers Compensation Commission or inspectorate.

The practical effect is that enforcement is relatively weak compared to the full NSW scheme. The incentives for employers to maintain insurance come primarily from the risk of civil liability (if no insurance, the employer must pay compensation out of pocket) and from the racing licensing regime. There is no government-run guarantee fund for uninsured employers, because the uninsured liabilities division of the 1987 Act is excluded. This is a significant enforcement gap: if an employer becomes insolvent or evades insurance, the jockey may have no effective recourse beyond a worthless judgment.

The regulation sits within a complex web of ACT and NSW legislation.

Racing Act 1999 (ACT): This is the primary statute. Section 61B empowers the making of this regulation and sets out the broad framework for jockeys accident insurance. The regulation is subordinate to that Act. Any amendment to the Racing Act’s Part 5A would automatically affect the scope of this regulation. Practitioners must therefore read the regulation in conjunction with Part 5A of the Racing Act, which is not reproduced here but contains the definitions of “ACT jockey”, “1987 NSW Act”, and “1998 NSW Act”. The Racing Act also likely contains the obligation to hold insurance and the consequences of failure to do so, which are separate from the incorporation of NSW law.

Civil Law (Wrongs) Act 2002 (ACT): Section 6 of the regulation expressly applies Chapter 5 of that Act to any common law damages claim by an ACT jockey. Chapter 5 imposes mandatory pre-court procedures: notice of claim, mandatory conference, time limits, and obligations to exchange information. This overrides any inconsistent procedures that might apply under the applied NSW Acts (which, as noted, largely exclude NSW claim procedures anyway). For statutory compensation claims (not common law damages), the Civil Law (Wrongs) Act pre-court procedures do not apply; instead, the jockey would make a claim directly against the insurer or employer, and any dispute would be litigated in the ACT courts without pre-action protocols (unless the court’s practice directions require them).

Workers Compensation Act 1951 (ACT): The general ACT workers’ compensation scheme does not apply to ACT jockeys covered by this regulation. The Racing Act and this regulation create a special scheme that displaces the ordinary ACT workers’ compensation regime for this class of workers. This means that ACT workers’ compensation premium calculations, employer obligations, and claims procedures do not apply to racing employers for their jockey employees. Instead, the NSW substantive law governs. This creates a divide: other workers in the racing industry (e.g., stable hands) are likely covered by the ACT Workers Compensation Act, while jockeys are on a different regime. This may cause administrative complexity for employers who have mixed workforces.

Related ACT laws: The Magistrates Court Act 1930 and the Supreme Court Act 1933 govern the jurisdiction and procedures of the courts that hear disputes under this regulation. The regulation specifies that the Magistrates Court’s jurisdiction is as if the proceeding were a personal action under section 257 of the Magistrates Court Act. This imposes monetary limits (currently $250,000 for personal actions) and procedural rules that may differ from workers’ compensation proceedings.

NSW Acts as amended: The applied NSW Acts are dynamic references. Any amendment to the 1987 or 1998 NSW Acts in NSW will automatically apply in the ACT unless the Racing Act or this regulation expressly dis- applies it. This creates an unusual situation where the ACT scheme can change without any ACT legislative action. The exclusions in section 5 are fixed, but the rest of the applied Acts float with NSW amendments. This is a significant interaction risk: practitioners must monitor NSW legislative changes, not just ACT ones.

The regulation has been amended only once since its commencement on 31 March 2006. The amendment was made by the Statute Law Amendment Act 2019 (A2019-42), which commenced on 14 November 2019. According to the amendment history, the only provisions amended were in section 5, and the amendments are identified as amendments 3.99 to 3.101. The precise content of those amendments is not specified in the republication, but given the nature of a Statute Law Amendment Act, they were likely minor - perhaps updating references, correcting numbering, or removing obsolete transitional provisions. The original section 5 was not substantially restructured; the three amendments probably adjusted the list of excluded provisions to reflect changes in the NSW Acts or to fix drafting errors.

The regulation has had two republications: R1 on 31 March 2006 (the original regulation) and R2 on 14 November 2019 (the current version incorporating the 2019 amendment). The section 2 (commencement) was omitted at some point under section 89(4) of the Legislation Act 2001, which automatically deletes commencement provisions from republications after the law is fully in force. There is no evidence of any other amendments, including any that might have been made by the Racing Act amendments. The regulation has therefore been stable for over 13 years.

The sparse amendment history suggests that the legislature has been content with the scheme as originally drafted, or that the dynamic referencing to NSW Acts has absorbed the need for frequent ACT amendments. However, it also means that structural issues identified by practitioners (such as the absence of an uninsured liabilities fund) have not been addressed in over a decade. The 2019 amendments may have merely updated cross-references; they did not expand or contract the exclusions in any major way.

The republication contains no reference to any litigation concerning this regulation. Neither the endnotes nor the text mention any court decisions interpreting its provisions. This does not prove that no litigation has occurred - the regulation has been in force since 2006, and disputes may have been settled without reported judgments, or heard in the ACT Supreme Court without appearing in the legislation register’s notes. However, the absence of any cited cases in the official republication is notable.

The applied NSW Acts have extensive case law in NSW, particularly around the meaning of “injury”, “worker”, and “arising out of or in the course of employment”. Because the regulation incorporates the substantive provisions of those Acts (subject to exclusions), NSW case law is likely to be highly persuasive in the ACT courts. For example, NSW interpretations of the 1998 Act’s impairment assessment provisions (sections 322 and 323, which are preserved) will guide ACT adjudicators. However, the exclusions of certain provisions (e.g., section 9A of the 1987 Act, and the claim procedural provisions) mean that NSW decisions on those points are irrelevant in the ACT.

There has been no need for the ACT courts to interpret the regulation itself in a reported decision, possibly because the regulation is so narrowly focused that its meaning is largely clear. The only likely area of interpretive dispute would be over which NSW provisions have been excluded and what fills the gaps. For instance, if a jockey’s injury is not covered by the applied NSW Acts but is arguably caught by the general ACT workers’ compensation scheme, the court would need to decide the boundary. Another potential dispute is whether a common law claim can proceed without complying with the Civil Law (Wrongs) Act Chapter 5, given that section 6 says it “applies” - mandatory language. A jockey who fails to comply may find their claim stayed or dismissed. No reported case has tested this yet.

The lack of litigation history could indicate that the scheme operates smoothly, that claims are settled early, or that the number of jockey injuries is too low to generate precedent. Jockeys are a small cohort, and the financial stakes may not justify extensive litigation. However, the absence of precedent also brings uncertainty - every new dispute is a matter of first impression, and parties cannot rely on settled ACT authority.

Several traps within the regulation can catch the unwary.

1. Dynamic referencing of NSW Acts. The regulation does not fix a date for the applied NSW Acts. This means that if the NSW Parliament amends its workers’ compensation legislation, those amendments automatically apply in the ACT for jockeys, except where the regulation expressly excludes them. An employer or insurer that monitors only ACT legislation may be unaware of changes in NSW that affect their obligations. For example, if NSW increases the maximum weekly payment or adds a new impairment table, that change instantly becomes part of the ACT scheme. Conversely, if NSW reduces benefits, the ACT scheme shrinks with no ACT legislative consent.

2. The excluded provisions create gaps that are not filled. The most significant gap is the absence of a compensation fund for uninsured employers. In NSW, Part 4 Division 6 of the 1987 Act and Part 8 of the 1998 Act provide for a fund to pay workers when an employer is uninsured or insolvent. The regulation expressly excludes that division. Therefore, if an ACT racing club fails to insure, the jockey has no fallback fund. The jockey’s only recourse is to sue the club directly - and if the club has no assets, the judgment may be worthless. This is a major structural deficiency.

3. Section 9A (substantial contributing factor) does not apply. While this may seem beneficial to jockeys (lower causation threshold), it also means that injuries that would be excluded in NSW (e.g., injuries not arising from employment but from ordinary risks of life) are compensable in the ACT. This broadens the scope of coverage and could increase premiums for insurers, which may be passed on to employers. The exclusion also removes a tool that employers could use to contest questionable claims.

4. The “no contracting out” provision (section 234 of the 1998 Act) is excluded. This means that an employer and jockey could, in theory, enter an agreement that reduces or excludes compensation entitlements. While unlikely in practice (industry insurance contracts are standardised), it opens the door for exploitation, especially if a jockey is in a weak bargaining position. The Racing Act may contain protections, but they are not in this regulation.

5. The imposition of ACT pre-court procedures for common law claims adds cost and delay. Section 6 applies Chapter 5 of the Civil Law (Wrongs) Act. This means that before a jockey can sue for common law damages, they must go through a mandatory conference (formerly known as a “personal injuries conference”) and exchange extensive documentation. Failure to comply can be fatal to the claim. This procedural requirement is not present in the NSW scheme for workers’ compensation common law claims, where the Workers Compensation Commission has its own streamlined process.

6. The jurisdictional scheme may produce forum shopping issues. The Magistrates Court has jurisdiction only up to the personal actions monetary limit (likely $250,000). For higher-value claims, the Supreme Court must be used. If a claim for statutory compensation (not damages) exceeds that limit, the Magistrates Court cannot hear it. But the regulation does not specify the monetary limits for statutory compensation claims; it only says the Magistrates Court has jurisdiction as if it were a personal action. This may create confusion about which court handles which type of claim.

7. The dictionary defines key terms by cross-reference to the Racing Act, but the Racing Act is not reproduced. Anyone reading the regulation in isolation cannot determine who is an ACT jockey, what constitutes an injury, or the date of the NSW Acts. Practitioners must always have the Racing Act open alongside this regulation.

8. The regulation excludes most of the 1998 Act’s claims procedures, but it preserves sections 322 and 323 (impairment assessment). This means that the NSW method for assessing permanent impairment (e.g., using the AMA Guides) applies in the ACT, but the accompanying procedural safeguards (examination procedures, review rights) may not. The preserved sections provide the substantive rules for calculating impairment, but the process for obtaining an assessment is unclear. This could lead to disputes over who assesses and how.

Compliance with this regulation is primarily a matter for employers of ACT jockeys (racing clubs and owners who engage jockeys) and for insurers. The regulation imposes no direct obligations on jockeys, but they must be aware of their rights and the procedures to enforce them.

Step 1: Identify the applicable insurance requirement. The employer must obtain a policy of accident insurance that satisfies the requirements of the applied NSW Acts, but only to the extent that those requirements are not excluded. The preserved substantive provisions from the 1987 NSW Act (sections 159 and 160) require that the policy contain particular provisions (likely covering all liabilities under the applied Acts and not excluding standard coverage) and that the employer may be liable to reimburse the insurer for any excess. The employer should confirm with their insurer that the policy is specifically designed for ACT jockeys under this hybrid scheme, not a general NSW workers’ compensation policy or a standard ACT workers’ compensation policy (which would not apply). Because the apportionment of premiums and the coverage scope are unique, off-the-shelf policies may not comply.

Step 2: Verify the Racing Act obligations. This regulation is subordinate to the Racing Act 1999, Part 5A. The employer must also satisfy any licensing or registration requirements under the Racing Act, which likely include producing evidence of insurance as a condition of holding a race meeting. The racing controlling body (not specified in this regulation) should be consulted for its specific compliance requirements.

Step 3: Maintain records and provide notices. Although the 1998 Act’s procedural provisions on notice of injury and claims are excluded, the substantive liability still requires that claims be made. The employer should have a clear process for jockeys to report injuries and should cooperate with the insurer in handling claims. The employer should also ensure that jockeys are aware of their rights, perhaps through a notice at the racecourse or in their engagement contracts.

Step 4: Understand the common law damages pathway. If a jockey intends to sue for common law damages (e.g., for injuries caused by negligence of the race club or a third party), the employer (or its insurer) must comply with Chapter 5 of the Civil Law (Wrongs) Act 2002. This means that upon receiving a pre-court notice of claim, the employer must appoint a legal representative, participate in a mandatory conference, and exchange offers of settlement. Failure to do so can result in costs penalties. The employer’s insurer typically handles this, but the employer must be aware that the ACT procedures are different from the NSW Workers Compensation Commission process.

Step 5: Monitor NSW legislative changes. Because the applied NSW Acts are dynamic, the employer’s insurance policy may need periodic updates to reflect changes in NSW law. An annual review with the insurer is advisable. The employer should also track the Racing Act for any amendments that might modify the definition of ACT jockey or the scope of the regulation.

Step 6: For insurers - design the policy with the exclusions in mind. The policy does not need to cover the excluded provisions (e.g., no need for commutation benefits, no uninsured liabilities fund contributions). But it must cover all other liabilities under the applied Acts, including permanent impairment assessed under sections 322 and 323 of the 1998 NSW Act. The premium should reflect the reduced procedural burden but also the increased risk from the exclusion of the “substantial contributing factor” test (section 9A of the 1987 Act). The insurer should also confirm whether the policy is subject to ACT’s Civil Law (Wrongs) Act pre-court procedures for any common law claims.

Step 7: For jockeys - know the claims process. A jockey who suffers an injury should obtain a copy of the employer’s insurance policy details and make a claim directly to the insurer. If the claim is disputed, the jockey can seek compensation through the ACT Magistrates Court or Supreme Court, depending on the amount. For common law damages, the jockey must first comply with the pre-court procedures under the Civil Law (Wrongs) Act, which includes sending a mandatory notice of claim and attending a conference. Legal advice should be sought early to avoid procedural pitfalls. The jockey should also note that there is no NSW-style Workers Compensation Commission to expedite disputes; court proceedings may be slower and more expensive.