Harness Racing Act 2009 (NSW)

Harness Racing Act 2009 No 20 An Act to make provision with respect to the control and regulation of harness racing; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Harness Racing Act 2009. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 2A Objects of Act The objects of this Act are as follows— (a) to provide for the efficient and effective regulation of the harness racing industry, (b) to protect the interests of the harness racing industry and its stakeholders, (c) to facilitate the development and operation of a sustainable and viable harness racing industry, (d) to ensure the integrity of harness racing and associated wagering in the public interest, (e) to provide for the functions and the powers of regulatory bodies, (f) to ensure harness racing industry stakeholder engagement and participation in the strategic development of the harness racing industry as a whole, (g) to protect and promote the welfare of harness racing horses. 3 Definitions (1) In this Act— eligible industry body means a body determined to be an eligible industry body for the time being under section 32(2). exercise a function includes perform a duty. function includes a power, authority or duty. harness racing means pacing or trotting. harness racing club includes any body or other association of persons, whether incorporated or unincorporated and whether registered or not, promoting, conducting or controlling, or formed for promoting, conducting or controlling, a harness racing meeting or harness racing meetings. harness racing meeting has the same meaning as meeting for harness racing has in section 4 of the Betting and Racing Act 1998. HRICG means the Harness Racing Industry Consultation Group established by this Act. HRNSW means Harness Racing New South Wales constituted by this Act. Integrity Auditor means the Harness Racing Integrity Auditor appointed under this Act. racing official means the following— (a) a member of HRNSW, (b) the chief executive officer of HRNSW, (c) a steward appointed by HRNSW, (d) a member of staff of HRNSW, (e) a member of the HRICG. recommended members list—see section 7(1)(a). rule means a rule made under this Act. Selection Panel means the Selection Panel established under section 7. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) A reference in this Act to a person associated with harness racing is a reference to the following— (a) a person who handles horses at a harness race, (b) a bookmaker's clerk, (c) a breeder of horses for harness racing, (d) a person who is an officer or employee of a harness racing club or is otherwise concerned in the management or control of any such club, (e) any other person of a class prescribed by the regulations for the purposes of this subsection. (3) Unless the regulations otherwise provide, a reference in any provision of this Act— (a) to registration includes a reference to licence, and (b) to register includes a reference to license, and (c) to registered includes a reference to licensed. (4) Notes included in this Act do not form part of this Act. Part 2 Harness Racing New South Wales 4 Constitution of Harness Racing New South Wales (1) There is constituted by this Act a body corporate with the corporate name of Harness Racing New South Wales. (2) HRNSW may use another name approved by the Minister by order published in the Gazette. (3) Without limiting subsection (2), HRNSW may use that other name when entering into any agreement or in relation to any other dealings of HRNSW. 5 HRNSW independent of Government HRNSW or any of its subsidiaries— (a) does not represent the Crown and is not subject to direction or control by or on behalf of the Government, and (b) cannot render the State liable for any debts, liabilities or other obligations of HRNSW or its subsidiaries, unless this or any other Act expressly provides otherwise. 6 Membership (1) HRNSW is to consist of the chief executive officer of HRNSW and 5 members appointed as follows— (a) 5 members recommended for appointment by the Selection Panel under section 7 and appointed by the Minister to give effect to the recommendation of the Selection Panel, unless the appointment is to fill a casual vacancy under paragraph (b), (b) the appointment of a member to fill a casual vacancy (a vacancy in the office of a member occurring other than by reason of the completion of the member's term of office) is to be made by the Minister on the nomination of HRNSW. (2) A person is not eligible to be a member of HRNSW if the person— (a) during the previous 12 months has been an employee, or a member of the governing body, of— (i) a harness racing club, or (ii) an eligible industry body, or (b) (Repealed) (c) is registered by or with HRNSW under this Act, or (d) is registered by the Greyhound Welfare and Integrity Commission under the Greyhound Racing Act 2017, or (e) holds a licence issued by Racing New South Wales, or (f) is currently, or during the previous 10 years has been, warned off, disqualified or named on the Unpaid Forfeit List under the rules, or (g) during the previous 10 years has been convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or (h) is an undischarged bankrupt or is taking advantage of the laws in force for the time being relating to bankruptcy, or (i) is a mentally incapacitated person. (3) A person is not eligible to be appointed as a member of HRNSW if the person is a member of the Selection Panel at the time the Selection Panel makes its recommendation for the appointment concerned. (4) A person is not eligible to hold office as a member of HRNSW for more than 10 years in total (whether or not involving consecutive terms of office). (4A) The chief executive officer of HRNSW does not have a vote at meetings of HRNSW. (5) While a person is a member of HRNSW, any entitlement of the person to vote as a member of a harness racing club or of an eligible industry body is suspended. (6) Schedule 1 contains provisions relating to members of HRNSW. 7 Selection Panel (1) The Minister must establish a Selection Panel— (a) to prepare and give to the Minister a list of persons recommended for appointment as members of HRNSW (a recommended members list), and (b) to recommend the term of office for each person recommended. (2) A member of the Selection Panel must consider the interests of the harness racing industry as a whole when exercising the functions of a member. (3) The Selection Panel must consider the balance and diversity of the skills and experience of the members of HRNSW when preparing the recommended members list. (4) The Selection Panel must recommend more than the number of persons required to be appointed. (5) The Minister may appoint a person for a term of office that is different from the term of office recommended by the Selection Panel. 8 Eligibility to be included on recommended members list (1) The Selection Panel must not include a person in the recommended members list if— (a) the person is not eligible to be a member of HRNSW, or Note— See section 6. (b) the Panel is satisfied the person has a direct or indirect pecuniary interest in a matter that gives rise, or is likely to give rise, to a conflict of interest of a nature that is incompatible with membership of HRNSW. (2) The Selection Panel may include a person in the recommended members list only if the Panel is satisfied— (a) the person has experience in a senior administrative role, or at a senior level, in 1 or more of the following fields— (i) business, (ii) finance, (iii) law, (iv) marketing, (v) technology, (vi) commerce, (vii) regulatory administration, (viii) regulatory enforcement, and (b) the person's skills and experience are relevant to the functions of HRNSW. (3) The Selection Panel must choose between persons for inclusion in the recommended members list on the basis of merit. (4) The merit of a person is to be decided on the basis of the person's abilities, qualifications, experience and personal qualities that are relevant to the exercise of the functions of HRNSW. 8A Probity checks of persons to be included on recommended members list (1) Before including a person in the recommended members list, the Selection Panel must conduct a probity check of the person. (2) The level of scrutiny of a probity check is to be decided by the Minister. (3) The Minister must appoint a Probity Adviser to assist the Selection Panel to conduct probity checks. 9 Functions of HRNSW (1) HRNSW has the functions conferred or imposed on it by or under this or any other Act or law. (2) Without limiting subsection (1), the functions of HRNSW include the following— (a) to control, supervise and regulate harness racing in the State, (b) to register harness racing clubs, harness racing horses, owners, trainers and drivers of harness racing horses, bookmakers for harness racing and other persons associated with harness racing, (c) to initiate, develop and implement policies considered conducive to the promotion, strategic development and welfare of the harness racing industry in the State, (d) to distribute money received as a result of commercial arrangements required by the Totalizator Act 1997, (e) to allocate to harness racing clubs the dates on which they may conduct harness racing meetings, (f) to initiate, develop and implement policies relating to the welfare of harness racing horses. (3) HRNSW may affiliate with such organisations, whether in or out of New South Wales, as HRNSW considers appropriate. (4) The functions of HRNSW are not limited by the rules and are to be exercised independently of Harness Racing Australia or any successor. 10 Powers of HRNSW (1) HRNSW has power to do all things that may be necessary or convenient to be done for or in connection with the exercise of its functions. (2) Without limiting subsection (1), HRNSW has power to do the following— (a) investigate and report on proposals for the construction of new racecourses, and inspect new racecourses or alterations or renovations to existing racecourses, (b) supervise the activities of harness racing clubs, persons registered by HRNSW and all other persons engaged in or associated with harness racing, (c) inquire into and deal with any matter relating to harness racing and to refer any such matter to stewards or others for investigation and report and, without limiting the generality of this power, to inquire at any time into the running of any harness racing horse on any course or courses, whether or not a report concerning the matter has been made or decision arrived at by any stewards, (d) direct and supervise the dissolution of a harness racing club that ceases to be registered by HRNSW, (e) appoint an administrator to conduct the affairs of a harness racing club, (f) disqualify a harness racing horse from participating in a race, (g) exclude from participating in a race a harness racing horse not registered under the rules, (h) prohibit a person from attending or taking part in a harness racing meeting, (i) impose a penalty on a person registered by it or on an owner of a harness racing horse for a contravention of the rules, (j) consult, join, affiliate and maintain liaison with other associations or bodies, whether in the State or elsewhere, concerned with harness racing, (k) enter into contracts, (l) acquire, hold, take or lease and dispose of real and personal property whether in its own right or as trustee, (m) borrow money, (n) order an audit of the books and accounts of a harness racing club by an auditor who is a registered company auditor nominated by HRNSW, (o) scrutinise the constitutions of harness racing clubs to ensure they conform to any applicable Act and the rules and that they clearly and concisely express the needs and desires of the clubs concerned and of harness racing generally, (p) publish material, including periodical publications, to inform the public about matters relating to harness racing, whether in the State or elsewhere, (q) undertake research and investigation into all aspects of the breeding of harness racing horses and of harness racing generally, (r) take such steps and do such acts and things as are incidental or conducive to the exercise of its powers and the performance of its functions. (3) Nothing in this Act confers on HRNSW power to conduct harness racing meetings on its own behalf. 11 Registration functions of HRNSW—general (1) HRNSW is to exercise its registration functions so as to ensure that any individuals registered by HRNSW are persons who, in the opinion of HRNSW, are fit and proper persons to be so registered (having regard in particular to the need to protect the public interest as it relates to the harness racing industry). (2) Without limiting subsection (1), a person is not to be so registered if the person has a conviction and HRNSW is of the opinion that the circumstances of the offence concerned are such as to render the person unfit to be so registered. (3) This section does not limit any provisions of the rules relating to the exercise of the registration functions of HRNSW. (4) In this section— conviction has the same meaning as in the Criminal Records Act 1991 but does not include a conviction that is spent under that Act. registration functions means the functions referred to in Division 1 of Part 3. 12 Consultation and planning (1) HRNSW is to prepare strategic plans for its activities from time to time. (2) HRNSW must prepare and publish a plan (a stakeholder engagement plan) setting out— (a) the stakeholders to be engaged by HRNSW, and (b) the nature of the engagement, and (c) the times at which the engagement will occur. (3) HRNSW is to prepare an initial strategic plan for the harness racing industry within 12 months after the commencement of this section and is to prepare a further strategic plan for the harness racing industry at least every 3 years after the initial strategic plan is prepared. Each such strategic plan must be prepared in consultation with HRICG and other harness racing industry stakeholders. (4) The strategic plans under subsections (1) and (3) may be combined into a single strategic plan for HRNSW and the harness racing industry. 13 Chief executive officer of HRNSW (1) HRNSW may employ a chief executive officer of HRNSW. (2) The chief executive officer is responsible for the day-to-day management of HRNSW. (3) The Government Sector Employment Act 2013 does not apply to or in respect of the chief executive officer. 14 Staff of HRNSW (1) HRNSW may employ such other staff as it requires to exercise its functions. (2) HRNSW may fix the salary, wages and other conditions of staff employed under subsection (1) (including the chief executive officer of HRNSW) in so far as they are not fixed by or under any other Act or law. (3) The Government Sector Employment Act 2013 does not apply to or in respect of staff employed under subsection (1). (4) HRNSW may engage consultants for the purposes of obtaining expert advice. 15 Arrangements for use of staff and facilities of Racing New South Wales (1) HRNSW may arrange for the use of the services of any staff (by secondment or otherwise) or facilities of Racing New South Wales. (2) For the purposes of this Act, a person whose services are made use of under subsection (1) is taken to be a member of staff of HRNSW. (3) Without limiting subsection (1), HRNSW may arrange for a steward appointed by Racing New South Wales to perform the functions of a steward of HRNSW under this Act. Any such person is taken to have been appointed by HRNSW as a steward for the purposes of this Act while exercising functions under this Act in accordance with those arrangements. (4) Without limiting subsection (1), HRNSW may arrange to share with Racing New South Wales any equipment, information technology (such as computer software) or office or any administrative system relating to licensing or registration. (5) HRNSW is not authorised to enter into an arrangement under this section in relation to stewards, or registration, without the consent of the Minister. (6) The consent of the Minister under subsection (5)— (a) may be given in relation to a particular arrangement or a class of arrangements, and (b) may be subject to conditions, and (c) may be amended from time to time. 16 Annual report of HRNSW (1) HRNSW must, as soon as practicable after 30 June and in any case before 1 November in each year prepare and forward to the Minister a report of its work and activities for the 12 months ending on that 30 June. (2) The report must include copies of the financial statements of HRNSW for the 12-month period to which the report relates together with an auditor's report on those statements prepared by an independent auditor. (2A) The report must also include the following— (a) for the period to which the annual report relates—progress reports on the implementation, in accordance with section 12, of— (i) the strategic plan of HRNSW and the harness racing industry, and (ii) the stakeholder engagement plan under section 12, (b) the report provided by the Integrity Auditor under section 27AA, (c) the report provided by the Chairperson of HRICG under section 34(4). (3) The Minister is to table the report or cause it to be tabled in both Houses of Parliament as soon as practicable after the report is forwarded to the Minister. (4) HRNSW is to make copies of the report available to the public free of charge. Part 3 Control and regulation of harness racing Division 1 Registration 17 Registration of harness racing clubs (1) HRNSW may, in accordance with the rules, register or refuse to register any harness racing club. (2) HRNSW must not refuse to register a harness racing club under this section unless it is of the opinion that— (a) the racing club is not, or will not be, financially viable in relation to participation in the harness racing industry, or (b) the registration of the harness racing club (whether under this or another Act) has previously been cancelled, or (c) it would be in the best interests of the harness racing industry to do so. 18 Registration of harness horses and persons associated with harness racing (1) HRNSW may, in accordance with the rules, register or refuse to register any harness racing horse, or any owner, trainer or driver of harness racing horses, bookmaker or other person associated with harness racing. (2) HRNSW must not refuse to register any harness racing horse or any person under subsection (1) unless it is of the opinion that it would be in the best interests of the harness racing industry to do so. 19 Registration of bookmakers (1) An individual over the age of 18 years or a proprietary company may apply to HRNSW for registration as a bookmaker in relation to harness racing. (2) Despite section 18(2), HRNSW must refuse to grant an application for registration of a proprietary company as a bookmaker unless satisfied that the company is an eligible company. (3) For the purposes of this section, eligible company means a proprietary company that is registered under the Corporations Act 2001 of the Commonwealth and in which— (a) each director, shareholder and person concerned in the management of the company is of or over the age of 18 years, and (b) each director is registered as a bookmaker under this Act, and (c) each director is a shareholder and person concerned in the management of the company, and (d) each shareholder who is not a director is a close family member of a director, and (e) each shareholder or person concerned in the management of the company who is not a director is, in the opinion of HRNSW, a fit and proper person to be registered as an individual as a bookmaker under this Act, and (f) no shareholder or person concerned in the management of the company, other than a director, is registered as an individual as a bookmaker under this Act, and (g) subject to the regulations, no person (other than a shareholder) has any interest in the shares or assets of the company. (4) It is a condition of a company's registration as a bookmaker under this Act that— (a) the company continues to be an eligible company, and (b) no director, shareholder or person concerned in the management of the company— (i) is a director, shareholder or person concerned in the management of, or is an employee or agent of, any other company that is registered as a bookmaker under this Act, or (ii) has a financial interest in any business of a bookmaker that is carried on by any such other company under the authority of its registration under this Act, or (iii) is registered or otherwise authorised as an individual to carry on, or carries on, the business of a bookmaker, bookmaker's clerk or turf commission agent, or a totalizator business, or any other kind of betting, wagering, gambling or gaming business, in another country, or (iv) is a director, shareholder or person concerned in the management of a corporation, or is a member of a partnership, that is registered or otherwise authorised to carry on, or that carries on, any such business in another country, or (v) is an employee or agent of any individual, partnership or corporation referred to in subparagraph (iii) or (iv), or (vi) has a financial interest in the business of a bookmaker or turf commission agent, or a totalizator business, or any other kind of betting, wagering, gambling or gaming business, that is authorised to be carried on or is carried on in another country. (5) It is a condition of a company's registration as a bookmaker under this Act that no director, shareholder or person concerned in the management of the company— (a) carries on the business of a bookmaker, otherwise than on behalf of the company, in relation to any greyhound, horse or harness race, at a harness racing meeting in New South Wales, or (b) carries on, at a racecourse licensed for harness racing, the business of a bookmaker in respect of a declared betting event otherwise than on behalf of the company. (6) In subsection (4)(b), a reference to carrying on the business of a bookmaker, or the business of a bookmaker's clerk or turf commission agent, includes a reference to acting as a bookmaker, or a bookmaker's clerk or turf commission agent. (7) HRNSW may suspend or cancel the registration of a company as a bookmaker if satisfied that any condition referred to in subsection (4) or (5) is contravened in respect of the company. This does not limit the powers of HRNSW to suspend or cancel the registration of a company as a bookmaker under section 21. (8) Any debt that is incurred by a company in carrying on business as a bookmaker registered under this Act is enforceable jointly and severally against all persons who are directors of the company at the time the debt is incurred (whether or not they are directors at the time the debt is sought to be enforced). (9) In this section— close family member of a director means— (a) a spouse, de facto partner, parent, child, brother or sister of the director, or (b) a person who has a relationship with the director that is prescribed by the regulations for the purposes of this definition. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. declared betting event has the same meaning as it has in the Betting and Racing Act 1998. financial interest in a bookmaking business means an entitlement to receive any of the income from the business. proprietary company has the same meaning as in the Corporations Act 2001 of the Commonwealth. racecourse licensed for harness racing means a racecourse in respect of which a licence for harness racing meetings granted under section 7 of the Betting and Racing Act 1998 is in force. 20 Suspension or cancellation of registration of harness racing clubs on commercial grounds (1) HRNSW may, in accordance with the rules, suspend or cancel the registration of any harness racing club. (2) HRNSW must not suspend or cancel any registration under this section unless it is of the opinion that— (a) the harness racing club is not, or will not be, financially viable in relation to participation in the harness racing industry, or (b) it would be in the best interests of the harness racing industry to do so. (3) HRNSW may not suspend or cancel any registration under this section for the purpose of taking disciplinary action or for the purposes of work health and safety. 21 Disciplinary and work health and safety action may be taken by HRNSW (1) HRNSW may, in accordance with the rules, do any of the following— (a) cancel the registration under this Act of— (i) any harness racing club, or (ii) any harness racing horse, or (iii) any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing, (b) disqualify, either permanently or temporarily, any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing, (c) prohibit any person from participating in or associating with harness racing in any specified capacity, (d) prohibit any horse from competing in any harness race, (e) prohibit any person from attending or taking part in a harness racing meeting, (f) impose fines, not exceeding 200 penalty units, on any harness racing club or on any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing for breaches of the rules, (g) suspend, for such term as HRNSW thinks fit, any right or privilege conferred by this Act or the rules on any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing, (h) prohibit any person registered under the rules from taking part in any harness racing meeting held by any harness racing club that is not registered under the rules. (2) Any fine imposed under subsection (1)(f) is to be paid to and be the property of HRNSW. (3) HRNSW may only take action under this section for disciplinary purposes or for the purposes of work health and safety. Division 2 Rules 22 Rules in relation to harness racing (1) HRNSW may make rules, not inconsistent with this Act or the regulations, for or with respect to the control and regulation of harness racing. (2) Without limiting the generality of subsection (1), HRNSW may make rules for or with respect to the following— (a) any matter that by this Act is required or permitted to be prescribed by the rules, (b) any of the matters referred to in Division 1, (c) the effect of a disqualification of, or other penalty imposed on, a person or harness racing horse under section 21(1), (d) the allocation to harness racing clubs of dates on which they may conduct harness racing meetings and harness races, (e) the holding and conduct of harness racing meetings and of races at any such meeting, (f) the keeping of horses that are in the care or custody of persons registered under the rules, (g) the breeding of harness racing horses, (h) the naming and identification of harness racing horses, (i) the appointment of stewards by HRNSW and the functions of those stewards (including functions that do not relate to harness racing meetings), (j) conferring on stewards appointed by HRNSW the same functions as are exercisable by HRNSW under Division 1, (k) the extent to which and the circumstances in which stewards appointed by HRNSW may exercise their functions to the exclusion of stewards of harness racing clubs, (l) the fees and charges referred to in section 38. 23 Rules generally (1) A provision of a rule made under this Division may— (a) apply generally or be limited in its application by reference to specified exceptions or factors, or (b) apply differently according to different factors of a specified kind, or (c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body, or may do any combination of those things. (2) A rule made under this Division may apply, adopt or incorporate any publication as in force at a particular time or as in force from time to time. (3) A rule made under this Division may not be made for or with respect to any of the matters for or with respect to which regulations may be made by virtue of this Act (section 48(1)(b) excepted). (4) HRNSW may amend or repeal a rule made under this Division. Division 3 Harness Racing Integrity Auditor 24 Appointment of Integrity Auditor (1) HRNSW is to appoint a person who, in the opinion of HRNSW, has suitable legal qualifications to hold the office of Harness Racing Integrity Auditor. (2) HRNSW is to conduct a probity check of a person (with the level of scrutiny to be determined by the Minister) before appointing a person to the office of Harness Racing Integrity Auditor. (3) An appointment of a Harness Racing Integrity Auditor has no effect unless the Minister approves of the appointment. (4), (5) (Repealed) 25 Functions of Integrity Auditor (1) The Integrity Auditor has the following functions— (a) the primary oversight of those aspects of the functions of HRNSW that relate to stewards, drug testing and control and registration, (b) providing advice to HRNSW on the matters referred to in paragraph (a), (c) receiving and investigating complaints against racing officials in respect of the exercise of functions relating to harness racing, (d) such other functions as are conferred or imposed on the Integrity Auditor by or under this or any other Act. (2) The functions of the Integrity Auditor are to be exercised independently of HRNSW. 26 Inquiries and investigations by Integrity Auditor in relation to complaint (1) A person may make a complaint to the Integrity Auditor in respect of the exercise of functions by a racing official relating to harness racing. (2) On receiving a complai