Hannon v Queensland Racing Integrity Commission
[2021] QCAT 74
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- Unreported Judgment
- Hannon v Queensland Racing Integrity Commission[2021] QCAT 74
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Hannon v Queensland Racing Integrity Commission[2021] QCAT 74
Hannon v Queensland Racing Integrity Commission[2021] QCAT 74
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hannon v Queensland Racing Integrity Commission [2021] QCAT 74 |
PARTIES: | diane hannon (applicant) V QUEENSLAND RACING INTEGRITY COMMISSION (respondent) |
APPLICATION NO/S: | OCR133-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 24 February 2021 |
HEARING DATE: | 19 February 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Member Traves |
ORDERS: | The reviewable decision, being the internal review decision of 2 April 2020, is confirmed. |
CATCHWORDS: | PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – GENERALLY where investigative steward attended the applicant’s greyhound kennels – where permanently prohibited substances located at the kennels – where applicant accepts this to be the case – where applicant charged with breach of Rule 79A(7) of the Greyhound Australasia Rules – whether failure to provide applicant with access to the respondent’s Standard Operating Procedure (SOP) prior to the investigation a failure to provide natural justice – where no failure to comply with the SOP identified – whether charge should nonetheless be set aside – determination of appropriate penalty. Greyhound Australasia Rules, Rule 79A, 79A(2), (4) and (7), Rule 80, Rule 81(2), Rule 86(f)(i), Rule 86(p) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Racing Integrity Act 2016 (Qld), s 3(1), s 246 Briginshaw v Briginshaw (1938) 60 CLR 336 Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583 Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146 Russell v Queensland Racing Integrity Commission [2020] QCAT 329 Taylor v Racing Queensland Limited [2011] QCAT 576 |
APPEARANCES & REPRESENTATION | |
Applicant: | Mr J Fuller, Gadens |
Respondent: | Mr SA McLeod QC, instructed by QRIC Legal |
REASONS FOR DECISION
- [1]This matter is related to the matter OCR134-20 involving Mr Reginald Hazelgrove. Ms Hannon and Mr Hazelgrove are both licensed greyhound trainers with the same registered kennel address. On 3 November 2020, the Tribunal made a direction that matters OCR133-20 and OCR134-20 would remain separate files but be heard and determined together. Ms Hannon and Mr Hazelgrove made joint submissions and were represented by the same legal representative at the hearing. Consequently, except where necessarily and specifically related to Ms Hannon, these Reasons are identical to those in OCR134-20.
- [2]The applicant, Ms Diane Hannon, is a licensed Greyhound Trainer.
- [3]Ms Hannon was charged with the following breaches of the Greyhound Australasia Rules (GAR):
- (i)Charge 1: GAR86(f)(i)
- (i)
That on Thursday 14 November 2019, Ms Hannon did engage in improper conduct and used offensive language towards the Investigative Stewards.
- (ii)Charge 2: GAR86(p)
That on 14 November 2019, Ms Hannon did fail to comply with the lawful order of a Steward, in that she failed to provide his mobile phone when directed; and
- (iii)Charge 3: GAR79A(7)
That on 14 November 2019, Ms Hannon was found to have in her possession at her registered address, a permanently banned substance, namely Nandrolone.
- [4]A Stewards’ Inquiry was held on 21 February 2020 where it was concluded that each of the charges had been substantiated and the following penalties imposed:
Charge 1 – disqualify Hannon’s licence for a period of 28 weeks;
Charge 2 – suspend Hannon’s licence for a period of 28 weeks; and
Charge 3 – disqualify Hannon’s licence for a period of 9 months.
- [5]The sanctions were to be served as follows: Charges 1 and 2 to be served concurrently and served cumulatively to charge 3.
- [6]Ms Hannon applied for internal review of that decision. On internal review, the original decision that the charges were substantiated was confirmed but the penalties were amended as follows:
Charge 1 – penalty amended to 3 month disqualification;
Charge 2 – penalty amended to 3 month disqualification; and
Charge 3 – penalty confirmed as 9 month disqualification.
- [7]Again, the sanctions in respect of charges 1 and 2 were to be served concurrently and cumulatively to charge 3, totalling a period of 12 months disqualification.
- [8]Ms Hannon has applied to the Tribunal for review of the internal review decision.
- [9]During the hearing, the applicant’s representative informed the Tribunal that charges 1 and 2 and the penalties imposed in respect of those charges were not contested and that the review was, accordingly, confined to charge 3.
The applicant’s submissions
- [10]With respect to charge 3, the applicant submits that the respondent failed to afford natural justice/procedural fairness to the applicant and that GAR, Rule 79A and Rule 80 “do not have ‘sufficient regard’ to individuals’ rights and liberties as they are inconsistent with natural justice”.
- [11]Further, the applicant submits that racing participants are prejudiced by the failure of the respondent to make available to participants the Queensland Racing Integrity Commission Standard Operating Procedure: Collection of Samples and Things (SOP). The failure to provide the SOP creates uncertainty as to whether stewards are following the testing procedures set out in the SOP in enforcing the GAR. This failure, it was submitted, constituted a denial of natural justice and, accordingly, that the charge should be set aside.
The respondent’s submissions
- [12]The respondent submits that the applicant accepts charge 3 as substantiated and does not call into question the integrity of the manner in which the samples were taken or tested or the subsequent results. No positive case has been advanced as to how, if at all, the SOP was not complied with. In those circumstances, it is submitted, the applicant’s case at best is that, had she been given the SOP prior to the investigation, she might have acted differently or been better advised. The respondent submits this is not a proper basis upon which to challenge charge 3. In any event, the respondent submits, the Tribunal should not look behind the Certificate of Analysis unless there is clear evidence that something adversely affected the integrity of the testing procedure, referring to Taylor v Racing Queensland Limited [2011] QCAT 576, [19].
- [13]Further, the respondent submits that the 9 month disqualification penalty imposed is within the reasonable range for this particular breach and that the expertise of the decision-maker in arriving at the appropriate penalty should be taken into account on review.
Consideration
- [14]The internal review decision, relevantly, that GAR 79A(7) had been contravened and a 9 month disqualification imposed, is a decision that may be reviewed in the Tribunal.[1]
- [15]The purpose of the review is to arrive at the correct and preferable decision by way of a fresh hearing on the merits.[2] The Tribunal, upon review, may: confirm or amend the reviewable decision; set aside the reviewable decision and substitute its own decision; or set aside the decision and return the matter to the disciplinary board for consideration with appropriate directions.[3] The Tribunal, in determining whether, relevantly, a charge has been substantiated, must be satisfied on the balance of probabilities having regard to the Briginshaw standard.[4]
- [16]GAR Rule 79A(7) provides:
If any substance or preparation that could give rise to an offence under this rule if administered to a greyhound at any time is found at any time at any premises used in relation to the training or racing of greyhounds then any registered person who owns, trains or races or is in charge of greyhounds at those premises is deemed to have the substance or preparation in their possession and such person shall be guilty of an offence and liable to penalty.
- [17]On 14 November 2019, QRIC Investigative Stewards attended the licensed kennels of trainers Reginald Hazelgrove and Diane Hannon for the purpose of conducting an inspection of the kennels. During the course of that inspection the stewards located, relevantly, two vials of Laurabolin, the active constituent of which is Nandrolone. Nandrolone is an anabolic steroid used to improve performance in racing animals and is deemed by Rule 79A(2)(xx) to be a ‘Permanently Banned Prohibited Substance.’ If that substance were to be administered to a greyhound it would constitute an offence under Rule 79A(4), thereby giving rise to a breach of Rule 79A(7).
- [18]A Stewards’ Inquiry was held on 21 February 2020 in relation to both trainers Mr Hazelgrove and Ms Hannon regarding the discovery of Nandrolone at their kennels. At the conclusion of the inquiry, the specifics of each of the charges were read out to Mr Hazelgrove and Ms Hannon. In relation to charge 3, the following was said:
The Chairman: …And also Charge 3, the permanently banned substance being found in your possession?
Ms Hannon: I can’t deny that.
- [19]Further, it was made clear at the hearing, that the applicant concedes charge 3 to be substantiated. However, it was submitted that there had been a denial of natural justice and that therefore, the decision in relation to charge 3 should be set aside.
- [20]The applicant submits that GAR Rules 79A and 80 do not have sufficient regard to the rights of individuals and liberties as they are inconsistent with natural justice.
- [21]There is no substance in this submission. It is not contended that Rules 79A or 80 as promulgated were beyond power. Moreover, there is no sensible basis to suggest that the principles of “natural justice” somehow invalidate the promulgated Rules.
- [22]Nor does the failure to provide or make available a copy of the SOP amount to a “denial of natural justice”. There has been no authority put before me which would justify the proposition that considerations of procedural fairness would apply to the issue of whether a procedural manual is made available to racing participants before an investigation. There is no “free-standing” right to be accorded procedural fairness. There must be an administrative decision to which the principles can properly attach.[5] Accordingly, I do not agree with the submission made on behalf of the applicant, that the failure to provide or make available the SOP prior to the investigation on 14 November 2019 constitutes a denial of procedural fairness and therefore a basis upon which to set aside the decision.
- [23]Moreover, I am satisfied that, as far as the review in the Tribunal is concerned, the applicant was provided with the SOP in August 2020, well before the hearing. The applicant did not contend either in written submissions or in oral submissions at the hearing that the SOP had not been complied with or that there was any basis for arguing, based on the SOP, that GAR Rule 79A(7) had not been breached. Further, under Rule 81(2), where it is necessary to prove that a substance is a permanently banned prohibited substance, a certificate signed by a veterinary surgeon, chemist or laboratory officer approved by the Controlling Body, shall be prima facie evidence of the matters contained therein for the purpose of any proceedings pursuant to these Rules. In these circumstances, I accept the submissions of the respondent, that the Tribunal should not look behind the Certificate of Analysis unless there is clear evidence that something has adversely affected the integrity of the testing procedure.[6]
- [24]Accordingly, the internal review decision that the applicant has contravened GAR Rule 79A(7) is confirmed.
- [25]I turn to consider the appropriate penalty for the breach by the applicant of GAR Rule 79A(7). The task of imposing a penalty has been said to involve consideration of the severity of the offence, the need for deterrence and any mitigating factors.[7] In Queensland Racing Integrity Commission v Gilroy[8] Thomas J observed:
A key consideration in determining penalty is to maintain the integrity of the industry as a whole and to demonstrate to participants in the industry and the public, that behaviour which breaches the rules will not be tolerated. There is a need to deter participants in the industry from acting in a way that is in breach of the rules, which have been formulated to achieve the purposes which include: maintenance of public confidence, ensuring the integrity of all persons involved in the industry, and safeguarding the welfare of all animals involved in racing.[9]
- [26]In terms of penalty, I accept the submissions of the respondent that the views of the primary decision-maker as to penalty, should, as the regulatory authority with expertise and unique experience in dealing with these matters, be given some weight. I accept the submissions of the respondent that, given the seriousness of the offence, 9 months disqualification is within the reasonable range of penalty for this offence.
- [27]There were no submissions as to penalty by the applicant other than that the decision should be set aside. However, in the applicant’s favour, I take into account that Ms Hannon has approximately 45 years of experience in the greyhound racing industry, has no prior offences of this nature under the GAR[10] and has admitted the permanently banned prohibited substance was located at her kennels and to that extent, has co-operated with the regulatory authority. I note in saying that, Ms Hannon denies knowledge of the presence of the prohibited substance and denies ever using it on greyhounds at the kennels. I also note that, Ms Hannon has no other source of income apart from the age pension.
- [28]It is accepted that consistency in penalties for like offences is desirable,[11] but the respondent was unable to direct me to any other decided cases involving a breach of this Rule. That said, I accept that the breach involves possession of a permanently banned performance enhancing substance, which is a serious offence that undermines the integrity of greyhound racing generally as well as public confidence in greyhound racing. Knowledge that the substance was located at the registered kennel is not an element of the offence. In any event I could not be satisfied, even for the purposes of penalty, that Ms Hannon had no knowledge the substance was there.
- [29]I am satisfied that the penalty of 9 months disqualification is within the reasonable range of penalty for the offence, given the nature of the offence and any mitigating factors. Accordingly, the penalty of 9 months disqualification is confirmed.
Footnotes
[1]Racing Integrity Act 2016 (Qld), s 246.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20.
[3]QCAT Act, s 24.
[4]Briginshaw v Briginshaw (1938) 60 CLR 336, 361–362.
[5]Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583.
[6]Taylor v Racing Queensland Limited [2011] QCAT 576, [19].
[7]Russell v Queensland Racing Integrity Commission [2020] QCAT 329, [27] per Member Fitzpatrick citing El-Issa v Racing Queensland Limited [2011] QCATA 280, [23].
[8][2016] QCATA 146.
[9]Ibid, [24]; see Racing Integrity Act 2016 (Qld), s 3(1).
[10]There is one $300 fine on Ms Hannon’s record for improper conduct at Ipswich Racecourse that occurred in 2017.
[11]Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146; Russell v Queensland Racing Integrity Commission [2020] QCAT 329, [29].