Racing (Public Interest Disclosures) Regulations 2019

The central concept is the confidentiality notice. This is a written instrument issued by the Racing Integrity Commissioner under section 37T of the Racing Act 1958 that restricts a person from disclosing specified restricted matters. The prescribed form in Schedule 1 is the only lawful format for such a notice. A restricted matter is not defined in the Regulations themselves; it is a term from the Racing Act, but the form indicates it must be specified in the notice. The form provides a table where the Commissioner inserts the restricted matter or matters. The notice then operates as a legally binding restraint on the recipient’s freedom to speak about those matters.

A second concept is permitted disclosure. The form sets out a default list of persons and entities to whom the recipient may disclose the restricted matter: a spouse or domestic partner, an employer or manager, a registered health practitioner, a trade union (if the recipient is a member), an employee assistance program, the Victorian WorkCover Authority for a workers’ compensation claim, and the Fair Work Commission for an application or related proceeding. However, the form also includes a section where the Commissioner can direct that the recipient cannot disclose to any or all of those default recipients. That direction power is a critical feature: the default permissions are revocable at the Commissioner’s discretion, and the notice must indicate which ones have been negated. This means a recipient cannot assume the default list applies; they must check the direction column.

Another concept is the list of always‑permitted disclosures. These are circumstances where the recipient is always allowed to disclose a restricted matter, regardless of the default permissions or any direction. They include: disclosing to IBAC if IBAC referred the complaint and later withdrew the referral; making a complaint to the Victorian Inspectorate or IBAC; complying with a witness summons from the Inspectorate or IBAC; disclosure to Victoria Police if the Commissioner has already disclosed information to the Chief Commissioner about criminal conduct; disclosure as directed or authorised by the Commissioner; disclosure authorised or required by the Racing Act 1958; disclosure necessary to obtain information to comply with a witness summons, confidentiality notice, or court order; disclosure to a legal practitioner for legal advice or representation; and disclosure of information already made public in accordance with the Racing Act or another Act, or published in a report by certain investigating entities (IBAC, Victoria Police, the Victorian Ombudsman, the Victorian Inspectorate, the Judicial Commission, the Chief Municipal Inspector, or the Information Commissioner). The notice also permits disclosure to specific vulnerable person supports: an interpreter, a parent or guardian for a minor, or an independent person for those with literacy or impairment needs.

The concept of penalty units is relevant: the notice warns of penalties of up to 12 months imprisonment or 120 penalty units or both. The explanatory details in the endnotes give the value of a penalty unit for the 2019-20 financial year as $165.22, making 120 units equal to approximately $19,826.40. That value adjusts annually. Finally, the notice has a defined expiration mechanism: it expires when cancelled by the Commissioner (with or without replacement), when the Commissioner concludes the investigation and cancels it, or when the Supreme Court extends it and that extension expires. The notice itself does not carry a fixed expiry date.

The Regulations directly affect any person who receives a confidentiality notice from the Racing Integrity Commissioner. That person is typically someone involved in or connected to an investigation under the Racing Act 1958 where a public interest disclosure has been made. Likely recipients include complainants, witnesses, racing industry participants (trainers, jockeys, club officials, stablehands), employees of racing bodies (Racing Victoria, the greyhound or harness boards), or any person who possesses information about a restricted matter. The notice may also be given to a person who has made an assessable disclosure under the Public Interest Disclosures Act 2012, as the form explicitly references that Act and the notice states that additional obligations under sections 52 and 53 of that Act may apply.

Indirectly, the Regulations affect the persons and organisations listed in the permitted disclosure categories: spouses, domestic partners, employers, managers, registered health practitioners, trade unions, employee assistance program providers, the Victorian WorkCover Authority, and the Fair Work Commission. These entities may receive restricted information but only if the disclosure is permitted under the notice and only if they also receive a copy of the confidentiality notice and any extensions or replacements. Those recipients then become subject to the same confidentiality obligations (though the form does not explicitly state that they are bound; the obligation to give them a copy is on the original recipient, but the legal effect on secondary recipients would flow from the Racing Act provisions attached to the notice).

The Regulations also affect the Racing Integrity Commissioner, who must ensure each notice issued is in the prescribed form. Failure to use the correct form could render a notice invalid, potentially jeopardising an investigation or a prosecution for unauthorised disclosure. The Commissioner’s staff must understand the intricate table structure and ensure the direction column is correctly completed for each restricted matter. Legal practitioners who advise notice recipients are affected insofar as they are an always-permitted disclosure recipient, but only for the purpose of legal advice or representation relating to the Racing Act, the Public Interest Disclosures Act, the IBAC Act, the Victorian Inspectorate Act, the Ombudsman Act, or the Commonwealth Fair Work Act 2009. The Supreme Court is affected insofar as it may extend the duration of a confidentiality notice, and when it does, the extended notice must be passed to anyone who received the original.

Journalists, researchers, and the general public are affected indirectly: if a restricted matter is disclosed to them without authorisation, the person making the disclosure commits an offence. The notice itself warns that information published in a report by certain investigating entities is no longer restricted, so once an official report makes the information public, the gag is lifted for that information. The broader economic impact is on the racing industry: confidentiality notices can suppress the flow of information during integrity investigations, which may affect betting markets, public confidence, and the ability of participants to defend themselves or seek support if the Commissioner exercises the direction power to block disclosures to employers or unions.

The primary duty imposed by the Regulations, through the prescribed form, is the duty not to disclose any restricted matter except in the circumstances authorised by the notice. The notice states: “If you disclose a restricted matter when you are not permitted to, you can face severe penalties, including up to 12 months in prison or a fine of up to 120 penalty units or both.” This is a negative duty of non-disclosure. It applies from the moment the notice is received and until the notice expires or is cancelled.

A second and often overlooked duty is the duty to provide a copy of the confidentiality notice to any person to whom the recipient makes a permitted disclosure. The form states: “If you disclose information about a restricted matter to another person because the disclosure is permitted, you must give that person a copy of this confidentiality notice, and any order extending this confidentiality notice, unless you have a reasonable excuse for not doing so.” Failure to do so carries the same penalty as unauthorised disclosure. This creates a cascading compliance burden: each time a recipient tells their spouse, employer, or health practitioner, they must hand over the formal notice. The practical cost includes ensuring they have multiple printed copies, or risking an offence if they forget.

A third duty arises if the notice is replaced, cancelled, or extended. The recipient must give a copy of the new notice, the cancellation notice, or the extension order to each person to whom they have previously made a disclosure. Again, the same penalty applies unless there is a reasonable excuse. This duty persists even after the original notice has expired; if a person disclosed to their spouse in year one, and the notice is cancelled in year two, they must track down the spouse and provide the cancellation notice.

The rights conferred include the right to disclose restricted matters in the always-permitted circumstances: to IBAC, the Victorian Inspectorate, Victoria Police (in certain circumstances), a legal practitioner for advice, and others listed. The recipient also has the right under the default table to disclose to a spouse, employer, health practitioner, union, employee assistance program, WorkCover Authority, and Fair Work Commission - but only if the Commissioner has not directed otherwise in the second column of the table. The recipient has the right to seek legal advice about the notice, and to an interpreter or support person if needed to understand compliance obligations. The notice itself does not create a right to apply to the Supreme Court for extension or cancellation; that right is in the Racing Act. However, the notice’s expiration clause refers to the Supreme Court’s power to extend.

The Racing Integrity Commissioner has the right to direct that the default permissions do not apply, and to cancel or replace the notice at any time. The Commissioner must also attach copies of relevant sections of the Racing Act and, if applicable, Part 7 of the Public Interest Disclosures Act 2012 to the notice. This is a duty imposed by the form.

The Regulations do not set penalty amounts themselves; they prescribe a form that warns of penalties for non-compliance. The penalty for disclosing a restricted matter without authorisation is, according to the notice, up to 12 months imprisonment or up to 120 penalty units, or both. The same penalty applies for failing to provide a copy of the notice to a person who receives a permitted disclosure, and for failing to provide a copy of a cancellation, replacement, or extension notice to a prior disclosure recipient. The penalty is a maximum; actual sentences depend on the circumstances and are imposed by a court under the Racing Act 1958.

The value of a penalty unit for the 2019-20 financial year was $165.22, so 120 penalty units equates to $19,826.40. That amount adjusts annually under the Monetary Units Act 2004, as noted in the explanatory details. The endnotes state the amount may be rounded to the nearest dollar, which is a minor administrative point. For future financial years, the Treasurer fixes the value and publishes it in the Government Gazette and a newspaper. A person charged with an offence under section 37T of the Racing Act would be prosecuted in the Magistrates’ Court or, if imprisonment is sought, perhaps in a higher court. The regulations themselves are not enforced directly; they are the evidentiary form.

Enforcement is entirely a matter for the Racing Integrity Commissioner and the relevant prosecutorial authorities. The Commissioner may refer breaches to Victoria Police or to the Director of Public Prosecutions. The penalties are significant enough to deter most casual indiscretions. However, the practical enforcement cost is high: proving an unauthorised disclosure requires evidence of what was said, to whom, and that it amounted to a restricted matter. The notice also creates a reverse onus in the sense that if a recipient discloses to someone not on the permitted list, they bear the burden of showing they fell within an always-permitted category or had a reasonable excuse for not providing a copy notice.

There is no civil penalty regime; only criminal. The notice’s warning includes the word “offence” in bold and capitals. The Racing Act likely provides defences, such as a reasonable excuse for failing to provide a copy notice, but the notice itself says “unless you have a reasonable excuse.” The regulations do not define “reasonable excuse,” leaving that to judicial interpretation. The cost of defending a prosecution could easily exceed the maximum fine, providing a strong incentive to comply strictly.

The Regulations are made under the Racing Act 1958, specifically sections 37T(2)(a) and 68(1)(d). Section 37T is the provision that empowers the Racing Integrity Commissioner to issue confidentiality notices in relation to restricted matters. The Regulations are thus a procedural adjunct to that section; without the prescribed form, the Commissioner could not lawfully issue a notice under that subsection. The form itself attaches copies of sections 37T(3) to (7), 37U, and 37W of the Racing Act, meaning those provisions are part of the notice package. The notice warns that additional obligations under sections 52 and 53 of the Public Interest Disclosures Act 2012 may apply. Those sections relate to confidentiality of assessable disclosures and the identity of the person who made the disclosure. A person who receives a confidentiality notice may already be bound by the PID Act not to disclose information that would identify a whistleblower. The notice therefore sits on top of existing confidentiality duties.

The always-permitted disclosure list references several other Acts: the Independent Broad-based Anti‑corruption Commission Act 2011 (IBAC Act), the Victorian Inspectorate Act 2011, the Ombudsman Act 1973, and the Commonwealth Fair Work Act 2009. Disclosures to IBAC, the Victorian Inspectorate, Victoria Police (in specified circumstances), and for the purpose of making a complaint to those bodies are always permitted, overriding the confidentiality notice. This means the notice cannot be used to prevent a person from reporting misconduct to IBAC. Similarly, compliance with a witness summons under the IBAC Act or the Victorian Inspectorate Act is always permitted.

The form also references the Sentencing Act 1991 for the definition of penalty units, and the Monetary Units Act 2004 for the calculation of the dollar amount. The endnotes of the regulations reproduce standard interpretive notes about the Interpretation of Legislation Act 1984, including style changes, headings, examples, and punctuation forming part of the statutory rule. These are generic and not specific to the Regulations.

The interaction with the PID Act is particularly significant. A person who makes an assessable disclosure under the PID Act is generally entitled to confidentiality protections. However, the confidentiality notice can still be issued to them, potentially restricting them from disclosing the same information to others beyond the PID Act’s protections. The notice acknowledges this by stating that additional obligations under PID Act sections 52 and 53 may apply. This creates a layered compliance regime where a person must navigate two sets of rules. The PID Act is not overridden; it is additional. A disclosure that is permitted under the PID Act may still be restricted under the confidentiality notice if it is not one of the always-permitted categories. For example, the PID Act might allow a whistleblower to disclose to a journalist in certain circumstances, but the confidentiality notice would not permit that unless the journalist falls into an always-permitted category (which they do not). The interaction is therefore potentially restrictive rather than harmonising.

The Regulations have no amendment history. They were made on 17 December 2019 as S.R. No. 147/2019 and came into operation on 1 January 2020. The table of amendments in the endnotes states: "There are no amendments made to the Racing (Public Interest Disclosures) Regulations 2019 by statutory rules, subordinate instruments and Acts." The amendments not in operation table also states none. The version at publication is Version No. 001. This means the Regulations have been in force unchanged for over four years (as of 2024). The lack of amendments suggests either that the form is working adequately, or that no urgency has been felt to update it, or that the Racing Act provisions themselves have not been amended in a way that requires a revised form. It is also possible that the Regulations are too minor to attract legislative attention. The sunset date of 17 December 2029 provides a built-in review mechanism: the Regulations will automatically lapse unless remade. This sunset is a form of forced amendment or re-evaluation. The absence of amendments does not necessarily indicate that the form is optimal; it may simply reflect low usage or low political priority. The Racing Integrity Commissioner has operated under the same form since January 2020.

There is no recorded litigation history in the source. The Regulations themselves have not been the subject of any reported court decisions, as of the publication of the version. The endnotes contain no reference to any case law, and the table of amendments is empty. This is unsurprising for a regulation that merely prescribes a form. Any litigation would more likely concern the underlying Racing Act provisions, the validity of a specific confidentiality notice, or the prosecution for unauthorised disclosure. If such cases exist, they are not cited in the regulations. The absence of litigation could mean that recipients comply without challenge, that the Commissioner uses the form correctly, or that any challenges were settled or unreported. It could also mean that the penalty threat deters breaches, so no prosecutions have been necessary. Alternatively, the provision may be underused. In the absence of judicial interpretation, the meaning of terms such as “reasonable excuse” and the extent of the Commissioner’s direction power remain untested. This creates uncertainty for compliance: a recipient cannot rely on precedent to know what a court would consider a reasonable excuse for failing to provide a copy notice. The first prosecution or judicial review would be a test case. The Regulations’ sunset in 2029 may come before any significant litigation occurs.

The most significant gotcha is the direction column in the table of permitted disclosures. The default list appears generous: spouse, employer, health practitioner, union, employee assistance program, WorkCover Authority, Fair Work Commission. But the Commissioner can check the “cannot disclose” column for any or all of those recipients. A recipient who reads only the “You can disclose” column and fails to check the “The Racing Integrity Commissioner has directed that you cannot disclose” column risks committing an offence. The form presents both columns side by side, but a hurried reader might stop at the check marks. The notice reinforces this with instruction text: “If a person or organisation does not appear under ‘You can disclose this restricted matter:’ or under ‘Can you disclose in any other circumstances?’, then you cannot disclose the restricted matter to that person or organisation.” But the direction column effectively removes default permissions. This is a trap for anyone who assumes the default applies.

A second gotcha is the obligation to give a copy of the notice to anyone you disclose to, even if the disclosure is permitted. This applies to spouses, health practitioners, union officials, and every other permitted recipient. If the recipient tells their spouse without handing over the notice, they commit an offence. The notice must be provided “unless you have a reasonable excuse.” But what constitutes a reasonable excuse? The regulations do not define it. Losing the notice is not likely to excuse. Forgetting is not likely to excuse. This creates a high administrative burden: the recipient must have multiple copies available at all times, or risk a criminal penalty. If the notice is later cancelled or replaced, the recipient must then track down every person they disclosed to and give them the new document. This duty persists potentially for years.

A third gotcha is that the expiration clauses do not give a fixed date. The notice expires when the Commissioner cancels it (with or without replacement), or when the investigation concludes and the Commissioner cancels it, or when the Supreme Court extends it and that extension expires. The recipient has no way of knowing when the investigation ends unless the Commissioner tells them. The notice does not require the Commissioner to inform the recipient of cancellation. The form says the notice expires when the Commissioner cancels it, but if the Commissioner simply does nothing, the notice remains in force indefinitely. The recipient must assume it is in effect until they receive a cancellation notice. This could be a permanent gag if the investigation stalls.

A fourth gotcha is the requirement to attach copies of sections of the Racing Act and, if applicable, Part 7 of the Public Interest Disclosures Act 2012 to the notice. The form says to attach them. If the Commissioner fails to attach them, the notice might be defective, but the recipient is still bound by the terms stated. The form is prescribed; the attachment requirement is part of the form. However, the penalty warning does not condition compliance on receipt of the attached sections. A recipient who receives a notice without the attachments still faces penalties for non-compliance.

A fifth gotcha is the interaction with the PID Act. The notice states that additional obligations under sections 52 and 53 of the PID Act may apply. The recipient must understand both regimes. For example, section 52 of the PID Act makes it an offence to disclose information that identifies a person who has made an assessable disclosure. The confidentiality notice may restrict disclosure of the restricted matter itself. A disclosure that is permitted under the PID Act (e.g., to a journalist) is not automatically permitted under the confidentiality notice unless the journalist is in the always-permitted list. The recipient must comply with both, which may require a more restrictive approach.

Finally, the penalties are high relative to the regulatory simplicity. 120 penalty units (nearly $20,000) plus 12 months imprisonment is a serious criminal sanction for what might be a casual conversation with a spouse. The potential for a criminal record and imprisonment is a strong deterrent, but it also means the state has given itself a powerful tool to silence individuals during an investigation. There is no civil alternative; the only enforcement is criminal.

If you receive a confidentiality notice under the Racing Act 1958, the first step is to read the entire notice carefully, including all footnotes and the attached sections. Identify the restricted matters specified in the notice. Check both columns of the table under “When are you authorised to disclose information?”: note the default permissions and whether the Commissioner has directed that you cannot disclose to any of those recipients. Do not assume the default applies. If the direction column is checked for a particular recipient, you cannot disclose to that person even if they appear in the “You can disclose” column.

Second, memorise or keep a copy of the always-permitted disclosure circumstances. These are outside the Commissioner’s direction power. They include disclosures to IBAC, the Victorian Inspectorate, Victoria Police (in limited circumstances), a legal practitioner for advice, and for compliance with witness summonses. If you are unsure whether a situation qualifies, seek legal advice before disclosing.

Third, before you make any permitted disclosure to a person (even your spouse), ensure you have a copy of the confidentiality notice (and any extension orders) ready to give to that person. You must provide the notice at the time of disclosure, unless you have a reasonable excuse. Consider keeping multiple printed copies in a safe but accessible place. If you disclose electronically, you must still provide a copy (e.g., by email or hand delivery). Failure to do so is an offence.

Fourth, keep a record of every person to whom you disclose a restricted matter, along with the date and the fact that you gave them a copy of the notice. This record will be essential if the notice is later replaced, cancelled, or extended. You must then provide each of those persons with a copy of the new notice, cancellation, or extension. Without a record, you may not remember who you told, and you could be in breach. The duty to pass on updates applies even if the original disclosure was years ago.

Fifth, if the notice is cancelled or replaced, confirm in writing with the Racing Integrity Commissioner that you have complied with the duty to notify prior disclosure recipients. Seek a written acknowledgment if possible.

Sixth, if you are a legal practitioner advising a notice recipient, note that you are an always-permitted recipient but only for the limited purpose of advice or representation concerning the listed Acts. Do not further disclose the restricted matter to others unless you are authorised under one of the always-permitted categories (e.g., to comply with a legal duty of disclosure or professional obligation to your client). If you receive a copy of the notice from your client, you are not personally bound by it unless you are also a recipient of the notice in your own right, but you should still handle the information carefully to avoid assisting a breach.

Seventh, if you are a trade union, employer, health practitioner, or other default permitted recipient, be aware that the person who disclosed to you was required to give you a copy of the notice. If they did not, they have committed an offence. You should ask for a copy. Once you have it, you are not prohibited from the information per se, but you should not further disclose it unless you are also within an always-permitted category. The notice does not explicitly bind you, but further disclosure could lead to the original recipient being implicated if the information is traced back. Your safest course is to treat the information as confidential and not share it.

Eighth, if the notice includes a direction that you cannot disclose to your employer, be particularly careful. You may need to seek legal advice about your employment rights, especially if the investigation concerns your conduct. You can still disclose to a legal practitioner for advice. The Commissioner’s direction cannot stop you from seeking legal representation.

Ninth, if you believe the notice is unlawful or disproportionate, you can apply to the Supreme Court for extension or challenge (though the notice itself does not detail this right; it is in the Racing Act). You should seek legal advice promptly, as any unauthorised disclosure you make during a challenge could still lead to prosecution.

Tenth, for the Racing Integrity Commissioner, ensure that every confidentiality notice issued exactly follows the form in Schedule 1, including the table for each restricted matter, the direction column correctly completed, and the required attachments of sections 37T(3) to (7), 37U, and 37W of the Racing Act, and if applicable Part 7 of the PID Act. A defective notice could be challenged, potentially derailing an investigation or leading to an acquittal in a prosecution for unauthorised disclosure. Also ensure that recipients are given clear instructions on how to comply, perhaps through a covering letter summarising key duties, as the form itself is dense and legalistic. Consider providing a compliance checklist with the notice.