Racing Restriction Act 2003

The Act draws its key definitions from the Racing and Wagering Western Australia Act 2003 (the RWWA Act), except where this Act gives another meaning or the contrary intention appears (s 3(2)). The central defined term is ARO - an approved racing organisation, which is a body corporate that the Minister has approved under section 9(3). An ARO is the only entity (other than RWWA under section 12) that may lawfully conduct horse or pony races that are not thoroughbred or harness races, provided the race involves a stake, prize, or betting (s 7).

Metropolitan region has the meaning given by section 4 of the Planning and Development Act 2005. This definition matters for the ministerial direction provisions in Part 5, which distinguish between race meetings customarily conducted inside and outside that region.

Prize is defined in section 3(1) as a trophy, cup, or any other material reward or benefit with a value exceeding the amount prescribed under the rules of racing for that kind of race; if no such amount is prescribed, the threshold is $50. This means that a race offering a prize worth more than $50 (or more than a prescribed higher amount, if any) is caught by the restrictions, even if betting is not involved. The phrase “for the purpose of betting” appears in ss 4-7 as an alternative trigger, so a race run purely for betting without a prize is also regulated.

The Act distinguishes three categories of racing. Thoroughbred races and harness races are subject to the strictest regime: they must be licensed by RWWA under the RWWA Act and held at an RWWA-licensed racecourse (ss 4-5). Greyhound races receive identical treatment (s 6). All other horse or pony races (s 7) - which by exclusion includes quarter horse, pony, stock horse, and any other equine racing that is not thoroughbred or harness - must be conducted by an ARO in compliance with its approval conditions, or alternatively be licensed by RWWA under section 12. Notably, neither an ARO nor a section 12 licence may authorise thoroughbred or harness races (ss 9(8), 12(7)). Stake is not defined in this Act but takes its meaning from the RWWA Act; the effect is to capture race entries where money or property is contributed by owners or trainers to form a pool.

The public interest standard appears in ss 9(3)(c) and 12(3)(c) as a precondition for Ministerial approval of an ARO and for RWWA issuance of a section 12 licence. In determining the public interest for ARO approval, the Minister may have regard to the applicant’s capacity to control races and to conduct them honestly and free from criminal influence (s 9(4)). This provides a wide, subjective criterion that grants significant discretion to the decision maker.

The Act directly affects anyone who organises, conducts, or assists in holding commercial horse or greyhound races in Western Australia. The primary regulated entities are racing clubs registered under the RWWA Act, which are the usual licensees for thoroughbred and harness racing; RWWA itself, which must license races and racecourses for thoroughbred, harness, and greyhound racing and may issue licences under section 12 for non thoroughbred, non harness racing; approved racing organisations (AROs) , which are bodies corporate approved by the Minister to conduct non thoroughbred, non harness horse races; and individuals who hold a race, on whose behalf a race is held, or who serve as stewards, starters, judges, or otherwise assist in conducting an unlicensed or unauthorised race, since they face criminal liability under section 8.

Indirectly, the Act affects racehorse owners, trainers, breeders, jockeys and drivers, on course bookmakers, punters, and racecourse operators, because the supply of racing events is constrained by the licensing and approval system. The Act also affects community organisations and agricultural show societies that might wish to hold a small pony race with a modest prize or incidental betting, because any race involving a prize over $50 or any betting purpose falls within the prohibition unless conducted through the ARO or section 12 licence pathway.

From a market structure perspective, the Act entrenches the position of RWWA as the sole gatekeeper for thoroughbred, harness, and greyhound racing and gives the Minister a controlling role over the non thoroughbred racing sector through the ARO approval system and ministerial directions under ss 13-14. New entrants cannot simply decide to hold a race meeting; they must either be a registered racing club under the RWWA Act (which itself requires RWWA approval) for thoroughbred or harness racing, or obtain ARO status from the Minister (which requires being a body corporate with suitable rules and satisfying the public interest test) for other horse racing. The s 12 licence is a residual category available only to persons who are not eligible for a licence under the RWWA Act and for whom no ARO is eligible to hold the meeting. This creates high barriers to entry and limits competition. The compliance burden falls most heavily on small scale or regional operators who may lack the legal and administrative resources to navigate the approval processes.

The Act imposes several negative duties. Under ss 4-7, no person shall hold a thoroughbred, harness, greyhound, or other horse race for a stake, prize, or betting purpose unless the race is properly licensed or authorised. This is a prohibition, not a positive duty to ensure compliance, but the effect is that anyone who organises a race meeting bears the risk of verifying licensing status.

The offence provision under s 8 imposes a positive duty on potential organisers and participants not to be involved in a race held in contravention of ss 4-7. The persons listed in s 8 - the holder, those on whose behalf the race is held, committee members of the holding or benefitting association, and anyone acting as steward, starter, judge, or otherwise assisting - each commits an offence regardless of whether they personally arranged the race or knew of the licensing deficiency. The duty is therefore strict in the sense that no mental element is specified in the section, which suggests strict liability subject to the Criminal Code principles of honest and reasonable mistake.

For AROs, the Act imposes ongoing duties. An ARO must not vary its approved rules without Ministerial approval (s 10(2)), must provide any information the Minister requires (s 10(3)), and must comply with conditions of its approval (s 9(5)). Breach of a condition may lead to discretionary revocation under s 11(2)(b). RWWA has a duty under s 12(6) to give written reasons if it decides not to issue a section 12 licence. The Minister has a duty under s 9(7) to give written reasons if it decides not to approve an applicant as an ARO.

Rights under the Act are procedural. A person may apply to the Minister for approval as an ARO (s 9(1)). An ARO may apply to the Minister to vary its conditions or approved rules (s 10(1)(a) and (b)). A person who meets the criteria in s 12(1) may apply to RWWA for a licence to hold a non thoroughbred, non harness horse race. RWWA may apply to the Minister for variation or cancellation of a direction under s 13 or s 14. There is no statutory right of appeal or judicial review expressly provided in the Act, although general administrative law remedies (judicial review, merits review under the State Administrative Tribunal Act 2004 if applicable) may be available depending on the character of the decision.

The Minister also has a right (and duty) to revoke approval if the ARO no longer meets s 9(1) or it is not in the public interest (s 11(1) - mandatory), and a power to revoke for contravention or breach of condition (s 11(2) - discretionary). The direction powers under ss 13-14 give the Minister the right to intervene in disputes about race meeting programmes that would affect regional meetings.

The Act creates a single criminal offence under section 8. The penalty is a maximum fine of $10,000. This is a relatively modest sum compared to the commercial value of a race meeting, which can involve prize money, betting turnover, and gate receipts that may reach hundreds of thousands of dollars. The deterrent effect is therefore limited for well resourced operators, but it may be significant for small community groups or individuals.

Liability is broad. The offence is committed by each of the categories of persons listed in s 8(a)-(e) if a race is held in contravention of ss 4, 5, 6, or 7. This means that if a race is unlawful, every person involved in the categories is separately liable and can be prosecuted individually. It is not a single corporate offence; multiple natural persons and bodies corporate can be charged for the same race. The categories include:

• (a) any person who holds the race;
• (b) any person on whose behalf the race is held;
• (c) each member of any managing body or committee of any association (incorporated or unincorporated) which holds the race;
• (d) each member of any managing body or committee of any association on whose behalf the race is held;
• (e) any person who acts at the race as a steward, starter, or judge or otherwise assists in the conduct of the race.

The phrase “otherwise assists in the conduct of the race” is extremely broad. It could extend to race announcers, timekeepers, clerk of the course, or even volunteers handling race day tasks. This creates a significant compliance risk for anyone who participates in an event that might be unlicensed or unauthorised.

The Act does not specify who enforces the offence. Likely enforcement agencies include the Western Australia Police Force, the Department of Local Government, Sport and Cultural Industries, or RWWA itself under its general powers. There is no provision for search warrants, seizure, or infringement notices. Prosecutions would proceed in the Magistrates Court. Because the penalty is a monetary fine only, there is no imprisonment option. The Act does not create a civil penalty regime, so private enforcement (e.g., by a competitor who suffers economic loss from an unlicensed meeting) would need to rely on other causes of action such as breach of statutory duty or unconscionable conduct.

A practical enforcement risk is that the offence is defined by reference to the holding of the race. A race that is held in breach is already completed, so the penalty is retrospective. The threat of prosecution may deter some, but others may gamble that the financial benefits outweigh the fine. There is no power to stop a race in advance, although an injunction could theoretically be sought under general law if an apprehended breach is shown.

The Act is expressly linked to the Racing and Wagering Western Australia Act 2003 (the RWWA Act). Section 3(2) provides that words and expressions used in this Act have the same meaning as in the RWWA Act unless this Act gives another meaning or the contrary intention appears. This means that terms such as “race”, “racecourse”, “licensed”, “registered racing club”, “stake”, “thoroughbred”, “harness”, and “greyhound” are defined by cross-reference to the RWWA Act. Practitioners must consult both Acts together to determine the full regulatory framework.

The definition of metropolitan region is taken from section 4 of the Planning and Development Act 2005. This geographic definition determines the application of the ministerial direction powers in ss 13 and 14. A change to the Planning and Development Act’s definition would automatically change the scope of the Racing Restriction Act, without an amendment to this Act.

The Criminal Code (WA) would apply to the offence under s 8. Because s 8 does not specify a fault element, the general principles in Chapter 5 of the Criminal Code would determine whether liability is strict or requires proof of intention or recklessness. Section 8 does not include a defence of honest and reasonable mistake of fact, but that defence would be available under Code s 24. A person who genuinely and reasonably believed the race was properly licensed might escape liability, though the burden would be on the accused to raise the defence.

The Act does not interact directly with the Racing (Proprietary Business) Act 2000 (WA) or the Betting Control Act 1954 (WA), but overlaps exist. For example, a race that is licensed under this Act may still need approvals for on course betting under the Betting Control Act. The Act also sits alongside the Animal Welfare Act 2002 and the Dog Act 1976, which impose separate obligations for greyhound racing.

The uncommenced provision from the TAB (Disposal) Act 2019 s 155, once proclaimed, will amend the Racing Restriction Act. The content of that amendment is not specified in the source, but it likely concerns the transfer of TAB assets following privatisation. Until proclaimed, that amendment has no legal effect. Practitioners should monitor the Gazette for commencement.

The Act does not purport to exclude or override the Competition and Consumer Act 2010 (Cth) or the Competition Code of WA. However, the licensing and approval system it creates could raise competition concerns because it restricts who may supply racing services. The Act is a State law that might be immune from Part IV of the CCA if it is an authorising law (i.e., if it compels the conduct in question). Whether the s 12 licence and ARO approval are competitively neutral is arguable.

The Act received Royal Assent on 26 June 2003 and commenced on 1 August 2003 (see Gazette 29 July 2003 p 3260). There has been one substantive amendment to date.

Amendment by the Planning and Development (Consequential and Transitional Provisions) Act 2005 (No. 38 of 2005), s 15. This amendment, which commenced on 9 April 2006, updated the definition of “metropolitan region” in section 3(1). Originally the definition referred to the now repealed Planning and Development Act 2003; the amendment substituted a reference to the Planning and Development Act 2005. This was purely a consequential update to maintain the correct cross reference after the planning legislation was restructured. No substantive change to the boundaries of the metropolitan region was made, as the definitions in the two Planning Acts are identical in effect.

Uncommenced provision: TAB (Disposal) Act 2019 (No. 21 of 2019), s 155. This provision was assented to on 18 September 2019 but its commencement is subject to proclamation (see s 2(1)(b)(xiii) of that Act). As of the compilation date, it has not been proclaimed. The exact text of the amendment is not reproduced in the source, but the heading suggests it relates to the disposal of the TAB. It is plausible that s 155 will amend or repeal parts of the Racing Restriction Act to accommodate the transfer of wagering licensing functions from RWWA to a private operator or a new regulator. Practitioners should check whether this amendment has been proclaimed before relying on the current text.

There have been no other amendments. The Act is therefore relatively stable law, having operated in its current form since 2006. Any future changes will likely arise from the TAB disposal process or from broader reform of Western Australia’s racing legislation.

The source text contains no references to any court cases that have interpreted or applied the Racing Restriction Act 2003. This does not mean that no litigation exists; the compilation notes do not include a litigation history table. It is possible that prosecutions under s 8 have occurred but are unreported or unpublished. It is also possible that the administrative decisions of the Minister (approving or refusing ARO status, revoking approvals, giving directions) have been challenged in the Supreme Court of Western Australia or the State Administrative Tribunal, but those cases are not noted in the source.

In the absence of reported case law, practitioners should be cautious. The interpretation of key phrases such as “for the purpose of betting” (ss 4-7) and “otherwise assists in the conduct of the race” (s 8) has not been judicially settled in the context of this Act. The phrase “customarily conducted” in ss 13 and 14 is also untested; it may give rise to disputes about what constitutes customary practice, particularly if a local club has run meetings only intermittently.

Because the offence is criminal, any prosecution would be subject to the rules of evidence and criminal procedure. The Criminal Code (WA) would apply, and the defence of honest and reasonable mistake would be available. The burden of proof on the prosecution is beyond reasonable doubt. If a prosecution were brought against a steward or other assistant who had no knowledge of the licensing status of the race, that person could potentially rely on the defence. However, without case law, the scope of the defence remains uncertain.

The ministerial direction powers have not been litigated publicly. A direction that reduces the number of race meetings in a region could be challenged by the affected club or ARO on grounds such as jurisdictional error or unreasonableness. Judicial review under the Supreme Court Act 1935 (WA) or the Judicial Review Act 2004 (WA) would be available if the Minister acted beyond power or denied procedural fairness. The fact that the Act gives the Minister a very wide discretion (“such direction as the Minister thinks fit”) would make a substantive challenge difficult.

Overall, the litigation history appears sparse. The Act has not generated a body of interpretive case law. Practitioners advising clients on the scope of the Act will need to rely on the plain language of the statute and general principles of criminal and administrative law.

Several provisions contain traps for the unwary.

Broad definition of “prize”. Section 3(1) defines prize as any material reward or benefit with a value exceeding the prescribed amount (if any) under the rules of racing, or otherwise exceeding $50. A race offering a ribbon or trophy worth $60 that is not a commercial betting event is still caught if the race is for a stake, prize, or betting. Small community events, gymkhana races, or school horse shows that award modest prizes could inadvertently breach the Act if they do not obtain an ARO approval or s 12 licence. The $50 threshold is low and not indexed.

“For the purpose of betting”. Even if no prize is offered, a race run for the purpose of betting is within the prohibition. This captures informal races where friends or patrons place wagers among themselves; the organiser need not be the bookmaker. Any organiser who knowingly allows a race to be used for betting purposes (including sweeps or tipping competitions) could be liable.

Liability of committee members and assistants. Section 8(c)-(e) imposes personal criminal liability on each member of the managing body or committee of an association that holds the race, and on any person who acts as steward, starter, judge, or otherwise assists. A committee member who had no role in race day logistics or who voted against the race can still be charged if the race is held. A volunteer timekeeper or gate attendant may be considered to have “assisted in the conduct of the race”. There is no requirement of knowledge or intent on the face of the section. The only safety net is the general defence of honest and reasonable mistake of fact under the Criminal Code.

No appeal mechanism. The Act does not provide for internal review or external merits review of a Minister’s decision to refuse ARO approval or to revoke an approval, or of RWWA’s decision to refuse a s 12 licence. The only statutory right is to receive reasons (ss 9(7), 12(6)). Aggrieved applicants must resort to judicial review, which is limited to errors of law, procedural fairness, or unreasonableness. The broad public interest test gives the decision maker a wide latitude that is difficult to challenge.

Ministerial direction can override contractual arrangements. Under ss 13 and 14, the Minister may give directions that effectively force RWWA or an ARO to alter its programme of meetings. This could override existing contracts between RWWA and a race club, or between an ARO and a venue. The direction power is not subject to any limitation other than that the proposed change must “require” or “necessitate” a reduction or other change to meetings outside the metropolitan region. The Minister can give “such direction as the Minister thinks fit”, which is expansive.

Uncommenced TAB amendment. The TAB (Disposal) Act 2019 s 155 is still unproclaimed. If it commences, it may alter or remove some of the ARO provisions or the licensing framework. Practitioners should check the current status before advising, and should insert a clause in any contract or approval application that accounts for potential legislative change.

No grace period for licensing. The Act imposes an immediate prohibition. There is no transitional period for existing racing operations. Any race held without the required licence or approval from the date the Act commenced (1 August 2003) was unlawful. New entities seeking to enter the market must have approvals in place before the first race day.

Compliance with the Racing Restriction Act 2003 requires identifying which category a proposed race falls into and then securing the necessary authorisation before the race is held.

Step one: Determine the type of race. Thoroughbred races and harness races are subject to ss 4 and 5. Greyhound races are subject to s 6. All other horse or pony races are subject to s 7. If the race involves a stake, a prize (over $50 or the prescribed amount), or is for the purpose of betting, the Act applies.

Step two: For thoroughbred, harness, or greyhound races. The organiser must ensure that the race is both licensed by RWWA under the RWWA Act and held at a racecourse that RWWA has licensed under that Act. This means the organiser must be (or be acting for) a racing club registered under the RWWA Act that has obtained an annual licence or specific race meeting licence from RWWA. The racecourse itself must hold a licence from RWWA. A person who is not a registered racing club cannot lawfully hold a thoroughbred, harness, or greyhound race for a stake, prize, or betting. If a person wants to hold such a race and is not a registered club, they would need to become one, which involves application to RWWA and compliance with its rules.

Step three: For other horse or pony races (non thoroughbred, non harness). Two pathways exist.

• Pathway A: Become an ARO. The applicant must be a body corporate, have the capacity to hold such races, and meet any prescribed requirements (s 9(1)). It must apply to the Minister providing proposed rules, details of the racecourse, and any other information the Minister requires (s 9(2)). The Minister will approve if satisfied that the applicant meets the requirements, the rules are suitable, and it is not contrary to the public interest (s 9(3)). The approval may be subject to conditions (s 9(5)). The ARO must then conduct all races in accordance with those conditions and the approved rules. It must not vary the rules without further Ministerial approval (s 10(2)). The ARO must provide any information the Minister requires (s 10(3)). The Minister may revoke approval for failure to meet requirements, public interest concerns, contravention of the Act, or breach of conditions (s 11). Ongoing compliance includes reporting changes, seeking approvals for rule changes, and maintaining honest, criminal free operations.

• Pathway B: Obtain a section 12 licence from RWWA. This is a residual pathway available only to a person who (i) is not a racing club registered under the RWWA Act, (ii) is not eligible to apply for a licence for the race under the RWWA Act, and (iii) there is no ARO eligible to hold the race meeting or race (s 12(1)). The applicant must provide proposed rules, racecourse details, and any other information RWWA requires (s 12(2)). RWWA may issue the licence if satisfied the applicant meets the criteria, the rules are suitable, and it is not contrary to the public interest (s 12(3)). The licence may be subject to conditions (s 12(4)). The applicant must then conduct the race in accordance with the licence conditions and approved rules. RWWA must give reasons if it refuses (s 12(6)).

Step four: Avoid the offence. Any person who holds, assists in holding, or serves as steward, starter, judge, or various committee members of an unlawful race commits an offence (s 8). To avoid liability, each such person should verify in writing that the race has the necessary licence or ARO approval before the race begins. A reasonable belief based on incorrect information may be a defence under the Criminal Code, but it is safer to obtain a copy of the licence or approval and keep it as a record.

Step five: Comply with ministerial directions. If RWWA or an ARO receives a direction from the Minister under ss 13 or 14, it must give effect to it. Failure to do so would not itself be an offence under this Act (the offence only relates to ss 4-7), but it could lead to legal proceedings for non compliance, and for an ARO, could contribute to revocation under s 11(2).

Step six: Monitor the uncommenced amendment. The TAB (Disposal) Act 2019 s 155 may at any time be proclaimed. If it commences, the licensing framework may change. Practitioners should check the WA Legislation website for the current text and any gazette notices. The amendment may require existing AROs or licence holders to reapply or transition to a new regime.