Thursday, 9 February 2023
Racing Amendment (Unauthorised Access) Bill 2022
Racing Amendment (Unauthorised Access) Bill 2022
Introduction and first reading
The PRESIDENT (17:21): I have a message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Racing Act 1958 to prohibit unauthorised access to certain areas of race-courses during race-meetings and official trial meetings and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Lizzie BLANDTHORN: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Lizzie BLANDTHORN (Western Metropolitan – Minister for Disability, Ageing and Carers, Minister for Child Protection and Family Services) (17:22): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Racing Amendment (Unauthorised Access) Bill 2022 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The Bill amends the Racing Act 1958 (the Act) to:
• prohibit unauthorised access to certain areas of race courses during race meetings and official trial meetings;
• to prohibit certain conduct during race meetings and official trial meetings; and
• to provide enforcement of these provisions.
The purpose of these amendments is to promote the safety and welfare of all patrons and participants, including animals, at race meetings and official trial meetings and to avoid the potential consequences of incursions and disruptive conduct. The consequences of disruptive behaviour or incursions onto a race-track (or a restricted racing area) can be significant, including serious injury or death to humans and animals. Notably, the Major Events Act 2009 currently contains crowd management provisions; however, these only apply to eight major feature thoroughbred race meetings. The Bill seeks to include in the Act equivalent arrangements to specified crowd management provisions contained in the Major Events Act 2009 so that equivalent conduct is prohibited at all race-meetings and official trial meetings (as defined in the Act and the Bill).
Human Rights Issues
This statement of compatibility commences with an outline of the human rights that are relevant to this Bill. It then discusses how relevant provisions of the Bill engage those rights.
Protection from cruel, inhuman or degrading treatment (s 10)
Sections 10(a)–(b) of the Charter provide that a person must not be subjected to torture or treated or punished in a cruel, inhuman or degrading way. The right is concerned with the physical and mental integrity of individuals, and their inherent dignity as human beings.
Cruel or inhuman treatment or punishment includes acts which do not constitute torture, but which nevertheless possess a minimum level of severity. Degrading treatment or punishment involves acts of a less severe nature again but which inflict a level of humiliation or debasement of the victim. Whether conduct meets the necessary threshold will depend upon all the circumstances, including the duration and manner of the treatment, its physical or mental effects on the affected person, and that person’s age, sex and state of health.
Right to freedom of movement (s 12)
Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria, to enter and leave Victoria, and to choose where to live in Victoria. The right extends, generally, to movement without impediment throughout the State, including a right of access to public places and premises, subject to (amongst other things) the private and property rights of others. It is one of the most qualified of rights.
Privacy (s 13)
Section 13 of the Charter provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. It is wide in scope, and includes protecting a person’s interests in the freedom of their personal, spatial and social sphere, including their right to identity, social relations, dignity and employment. Section 13(a) contains internal qualifications – namely, an interference with privacy will only limit the right if it is unlawful, in that an applicable law is infringed; or it is arbitrary, in that it is capricious, or has resulted from conduct which is unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought.
Freedom of expression (s 15)
Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. However, section 15(3) provides that special duties and responsibilities attach to this right, which may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.
Right to peaceful assembly and freedom of association (s 16)
Section 16(1) of the Charter provides that every person has the right of peaceful assembly. The right of peaceful assembly encompasses the right to privately and publicly gather or associate with others to attain a particular end and the right to organise and to participate in public demonstrations and marches. The right only extends to protect peaceful gatherings, and violent assemblies, such as riots and affrays, are not protected.
Right to be presumed innocent (s 25(1))
Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.
Offence to enter or remain in a restricted racing area during a race-meeting or an official trial meeting
Under new Division 4A, section 32A makes it an offence for a person, without reasonable excuse, to enter or remain in a restricted racing area during a race-meeting or an official trial meeting unless the person is authorised or acting in accordance with an engagement in the management or conduct of the meeting.
Freedom of movement
While prohibiting persons from entering certain areas may interfere with their freedom of movement, it is doubtful as to whether the right would extend to protect unfettered access to a racing area on a premises, where an occupier is otherwise able to exercise their property right to exclude entry.
In the event that the provision is considered to limit freedom of movement, in my view, any interference is justified. Significantly, the limits serve the important purpose of promoting safety and order at race events and are aimed at protecting public order and, in turn, the rights and freedoms of others. The extent of the interference will be limited as the restrictions on movement are confined as they only affect specified ‘restricted racing areas’. The provision includes a ‘reasonable excuse’ defence for non-compliance, which safeguards against any further interference with the right. I am therefore satisfied that the provision is compatible with this right.
New section 32A may also engage and limit the right to peaceful assembly, which entitles persons to gather intentionally and temporarily for a specific purpose. However, the right to peaceful assembly may be justifiably limited on private property, or on Crown land where access is restricted, as long as the circumstances including the purpose behind restricting access, are proportional under 7(2) of the Charter.
I consider the limits on peaceful assembly to be reasonably necessary and proportionate to achieve the legislative purpose. The limits imposed on the right to peacefully gather is for a significant and important purpose, that is, safety and good order during race-meetings and official trial meetings. Also, the extent of the limit on peaceful assembly only apply to ‘restricted racing areas’ of limited scope, being: the track which is being used for racing; space which is being used for the saddling and keeping or animals; pathways which connect 2 of more restricted racing areas and a prescribed land area. Finally, the extent of any limitation is confined, in that there remain other means available for a person or group to exercise this right, such as peacefully gathering in neighbouring or adjoining areas that do not pose a danger to patrons and racing participants. Accordingly, I am satisfied that any interference with this right is compatible with the Charter.
Offences for disrupting, climbing, or causing objects to enter, fly into or land in a restricted racing area during an official trial or race-meeting
The Bill seeks to create a number of offences around unsafe or unreasonable behaviours, subject to a ‘reasonable excuse’ exception. New section 32B creates an offence where a person, who is in a restricted racing area during a race-meeting or an official trial meeting, disrupts the meeting; further sections makes it an offence to throw or kick projectiles or otherwise cause them to land in a restricted racing area (32C) or climb on fences, barriers or barricades within the restricted racing area during a race meeting or an official trial meeting, unless the person is authorised or is acting in accordance with an engagement in the management or conduct of the meeting (section 32D).
Freedom of expression
As disorderly conduct can have an expressive component, new sections 32B, 32C and 32D may engage section 15 of the Charter. It is well recognised that the right to freedom of expression protects the expression of ideas that offend, shock or disturb and covers behaviour that is irritating, contentious, heretical, unwelcome or provocative – provided that any relevant expression does not tend to provoke violence or itself constitute violence or damage to property.
However, as noted above, section 15(3) provides that the right to freedom of expression can be subject to lawful restrictions that are reasonably necessary to respect the rights and reputation of other persons or for the protection of national security, public order, public health or public morality. The offences concern prohibiting unsafe or anti-social conduct during meetings (s 32B, 32C and 32D) and serve the legitimate purpose of protecting public order and safety at such events. As any limits are proportionately tailored to the important objective, which is only concerned with behaviour that is unsafe or poses risks, I consider these provisions to be compatible with the right to freedom of expression.
Powers to direct a person to leave and not enter a restricted racing area
New section 32E provides an authorised officer with powers to direct a person to leave and not re-enter a restricted racing area or race-course for the duration of a race-meeting or an official trial meeting if an authorised officer believes on reasonable grounds that the person is committing or has committed one of the offences outlined above (see 32A 32B, 32C or 32D). 32F(1) makes in an offence to not comply with direction issued under s 32E.
These powers of direction are relevant to the rights to freedom of movement and peaceful assembly.
Freedom of movement and peaceful assembly
Following the discussion above, it is doubtful as to whether this power of direction, which is limited to being exercised in relation to ordering a person to leave and not re-enter a restricted racing area or race-course, would limit freedom of movement in light of ordinary powers of an occupier to exclude a person from such premises. Additionally, as the power is able to be exercised in relation to disruptive or anti-social conduct, it may also be beyond the scope of protection afforded by the right to peaceful assembly.
However, to the extent that the exercise of this power constitutes a limit on either right, I consider that such rights will not be limited under 7(2) of the Charter. The directions power provides authorised officers with an immediate tool to prevent or mitigate an identified risk to safety and public order at race meetings and official trials. The scope of the power is precisely prescribed to meet the objective, in that there is a clear and rational connection between the limitation on rights and the purpose of the provision. An authorised officer can only make a direction where they believe on reasonable grounds that a specified offence has been committed, they have informed the person of that belief and the person has refused to comply. The effect of the direction is limited to the duration of the race-meeting or official trial meeting during which it was exercised. I am thus satisfied that any limits on rights are reasonably justified and the power is compatible with the Charter.
Powers to use force to prevent or remove a person from a restricted racing area
The Bill inserts new section 32F(4), which provides a police officer with powers to use ‘no more force than is reasonably necessary’ in order to prevent a person from entering or re-entering a restricted racing area or race-course contrary to a direction given under s 32E, or remove a person from such areas who has refused to comply with such a direction.
Protection from cruel, inhuman or degrading treatment (s 10)
The use of force on a person may engage a person’s right to protection from cruel, inhuman or degrading treatment, however I do not consider the right to be limited. For a use of force power to be compatible with the Charter, it must be precisely circumscribed and aimed at achieving the legitimate objective, only authorise necessary force and the minimum needed to be considered effective, generally be a measure of last resort and be subject to adequate training and governance.
The power is directed to ensuring the legitimate objective of safety and good order at race meetings and trials. It is only exercisable by police officers (and not authorised officers) who will have the requisite training regarding the proportionate use of force. The power is only enlivened in relation to a person who has already been issued a direction to leave or not enter under s 32E, and can only be used for the purpose of preventing a person from entering and removing a person from a restricted racing area or race-course. The provision contains the internal qualification permitting ‘no more force than is reasonably necessary’, which ensures that any force used by a police office is proportionate and necessary in the circumstances to achieve the public order and public safety objectives. Accordingly, I am satisfied that this power is compatible with the Charter.
Powers to make ‘ban orders’
The Bill inserts new section 32G, which seeks to enable a court to make a ban order when a person is found guilty of one of the specified offences (32A, 32B, 32C, 32D or 32F). A ban order will mean that a person is barred from attending specified race-meetings or official trial meetings, or categories of those meetings. The penalties under this section range from banning that person from attending one race or official trial meeting, through to imposing a ban order on participation at meetings of up to five years.
Freedom of movement and privacy
New section 32G creates ban orders which prohibit a person from attending race and official trial meetings and penalises them for non-compliance, limiting that person’s right to freedom of movement. Additionally, a ban order made under section 32G may interfere with the right to privacy in circumstances where they impact on a person’s employment or social identity to the extent that it involves attendance at such events. However, I consider that any interference with these rights will be compatible with the Charter, in that any limit on the freedom of movement will be reasonable and justifiable under s 7(2) of the Charter, and any interference with privacy will not be arbitrary.
The ban orders are for a preventative purpose of preventing repeat offending and are only enlivened following a finding of guilt of specified offences outlined above involving disruptive, unsafe or anti-social conduct. Given the dangerous nature of the proposed prohibited conduct, the orders provide a significant additional deterrent and ensure public safety where the offending conduct is particularly serious. The ban order is a discretionary order of the court, and subject to the objective standards and criteria within a court’s jurisdiction, as well as an independent and fair hearing. The order is also limited in maximum duration (up to five years) and scope (applies only to specified race-meetings or official trial meetings where the offence was committed, or to specified categories of race-meetings or official trial meetings). This allows the orders to be appropriately tailored to the nature of the offence. I consider there is no less restrictive means reasonably available to achieve the purpose of the limitations. I also note that these orders are consistent with existing provisions that apply to other events under the Major Events Act 2009. Accordingly, I consider these orders to be compatible with the Charter.
New offence provisions
The Bill inserts new sections 32A, 32B, 32C, 32D and 32J, which are offence provisions. The new sections inserted all include exceptions based on authorisations or on having a reasonable excuse. New section 32A creates an offence to enter into a restricted racing area without a reasonable excuse. Section 32B makes it an offence to disrupt an official trial meeting or race-meeting without a reasonable excuse. Section 32C makes it an offence to throw or kick things or cause an object to fly into or land in a restricted racing area without authority. Section 32D prohibits climbing certain infrastructure without authority. 32J prohibits obstructing an authorised officer without a reasonable excuse.
Presumption of innocence
As these offences are summary offences, section 72 of the Criminal Procedure Act 2009 will apply to require an accused who wishes to rely on the ‘lawful authority or excuse’ defence to present or point to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the excuse. By providing for a ‘reasonable excuse’ offence exception, the offence provisions may be viewed as placing an evidential burden on the accused, in that it requires the accused to raise evidence as to a reasonable excuse. However, in doing so, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution who must prove the essential elements of the offence. Case law has held that an evidential onus imposed on establishing an excuse or exception does not limit the Charter’s right to a presumption of innocence, as such an evidentiary onus falls short of imposing any burden of persuasion on an accused. Accordingly, I do not consider that an evidential onus such as this limits the right to be presumed innocent.
Powers to request a person’s name and address
New section 32K provides an authorised officer with powers to request a person’s name and address if the authorised officer believes on reasonable grounds that the person has committed an offence against 32A, 32B, 32C, 32D or 32F. Section 32L makes it an offence to refuse to give a name and address to an authorised officer under 32K. Section 32M provides that, if an authorised officer believes that a person required to give information under 32K is giving false information they may require that person to produce evidence of their name and address, which the person must comply with.
The right to privacy is relevant to these provisions as they effectively compel a person to disclose their name and address, which is personal information. However, in my view, this section does not limit the right to privacy because any interference is permitted by law (this Bill) which is precise and appropriately circumscribed. The section is not arbitrary because it is for the clear and legitimate purpose of enabling authorised officers to enforce offences under the Bill where necessary. It is not possible for an authorised officer to prosecute offences and enforce directions to leave without the power to confirm the identity of the suspect.
The provision is subject to reasonable limitations in that the powers can only be exercised where an authorised officer has formed a belief on reasonable grounds that a person has committed an offence or when directing a person to leave. Authorised officers who are not police officers are required to produce their identity card, inform the person and state that they believe that a relevant offence has been committed. The power to compel a person to produce evidence of their name and address is only enlivened when an authorised officer believes on reasonable grounds that the name and address given a person may be false. Further, 32N requires that an authorised officer must not disclose any information obtained in the course of the authorised officer’s duty or incur a penalty of 50 penalty units. These provide effective safeguards against inappropriate disclosure by an authorised officer obtained in the course of their duties.
Authority to disclose information
The Bill inserts new section 32N, which provides that authorised officers may disclose the information obtained in the course of the officer’s duties or the exercise of a power under provisions 32K or 32M in certain circumstances (being details or evidence of a person’s name and address).
New section 32N will engage the right to privacy as it allows for an authorised officer to disclose personal information. In order for information to be disclosed under this provision, an authorised officer must hold a reasonable belief that disclosure is necessary for the purposes of the Act. The section enumerates limited circumstances in which the information can be shared; and imposes 50 penalty units if the information is not shared for these strict purposes.
In my view, this section will not be arbitrary or unlawful interference with privacy, as any disclosure of personal information authorised by this section will only occur to the extent necessary to carry out the functions of the authorised officers under the Act, or for other specified purposes such as in the course of legal proceedings or pursuant to a court or tribunal order. Consequently, I consider that new section 32N is compatible with section 13 of the Charter.
The Hon Gayle Tierney
Minister for Training and Skills
Minister for Higher Education
Minister for Agriculture
That the bill be now read a second time.
Ordered that second-reading speech be incorporated into Hansard:
The Victorian racing industry contributes $4.7 billion annually to the Victorian economy and helps sustain 34,900 full-time-equivalent jobs across our State. The Government is committed to ensuring the Victorian racing industry remains a pre-eminent racing jurisdiction in Australia.
There is at least one Victorian racing industry meeting conducted on every day of the year, except for Christmas Day. There were almost 2,300 Victorian race meetings conducted in 2021–22. This included 538 thoroughbred racing meetings, 436 harness racing meetings and 1,312 greyhound racing meetings.
In recent years there have been instances of unauthorised entry to a racetrack area during the running of horse races at Victorian racecourses. While the frequency of track incursions by spectators is relatively low, the potential consequences are significant, and could result in serious injury or death to patrons, human and animal participants, and officials.
This Bill amends the Racing Act 1958 (Racing Act) to provide for offences and penalties to ensure the safety and welfare of all patrons and participants, including animals, at all Victorian race meetings and official trial meetings.
To this end, the Bill identifies certain parts of a racecourse as restricted areas for the purposes of new offences and penalties relating to unauthorised access to those areas during a race or official trial meeting. The areas that have been identified reflect the current operational arrangements that are already in place at racecourses across Victoria. Access to these areas usually requires a person to produce an authorisation to enter, and include racing and training tracks, and other areas used by racing animals and their handlers, such as mounting yards, parade rings, stabling and kennelling facilities, and pathways between these areas.
Importantly, the introduction of restricted areas on racecourses will not affect the enjoyment of race goers. As race goers are already prohibited from entering restricted areas, those provisions will not affect their enjoyment or change the areas of the racecourse that they can access. The Bill will not alter who is authorised to enter restricted areas and what they are authorised to do.
The new crowd management offences and penalties apply to behaviours in or near restricted areas. They do not apply to the general conduct of persons in other parts of the racecourse.
New offences to manage crowd behaviour
The Bill will insert provisions into the Racing Act to create offences with regard to specific behaviours in and around the restricted areas, without a reasonable excuse.
The offences are consistent with similar offences in the Major Events Act 2009 (Major Events Act) which apply at major sporting events covered by that Act. This includes eight of Victoria’s feature race meetings during the Spring Racing Carnival: Caulfield Racecourse on Caulfield Cup Day, Caulfield Guineas Day and Thousand Guineas Day, Flemington Racecourse on a day that a race meeting of the Melbourne Cup Carnival takes place, and Moonee Valley Racecourse on Cox Plate Day.
The Bill will not affect the operation of the Major Events Act. It is important that those race meetings continue to be subject to all relevant provisions of the Major Events Act, which extend beyond the management of crowd behaviour.
The offences relate to of the disruption of a race meeting or official trial meeting; throwing or kicking projectiles, or otherwise causing projectiles to enter into a restricted racing area; and climbing on fences or barricades that are adjacent to a restricted racing area. The latter activity could lead to animals reacting unpredictably creating a risk of injury to persons near the area. It could also result in patrons inadvertently entering a racetrack area, endangering themselves and participants, and disrupting races.
These new statutory offences and related penalties will provide a clear and strong deterrent to persons who are not authorised to access certain areas of the racecourse from engaging in dangerous and disruptive conduct.
Racing industry participants
It is not intended that the new offences under the Bill apply to those persons who are licensed or registered to participate in the conduct of the meeting, or who are engaged in the management or conduct of the meeting, while they are carrying out their roles at the meetings.
For example, there may be times when a person engaged at a race meeting throws to a jockey on the race track a towel or water bottle. This type of action, which takes place in the general conduct of a race meeting, would not constitute an offence under this Bill.
This Bill does not alter who is authorised to enter restricted areas and what they are authorised to do. It also has no impact on activities that are not connected with the restricted areas.
The Victorian racing industry is fully supportive of the Bill. The new offence and penalty provisions will enable racing clubs and the racing code bodies to provide clear warnings to patrons about the consequences of dangerous and anti-social behaviour at the races.
The new offences will be enforced by Victoria Police or authorised officers appointed by the Secretary of the relevant department.
Victoria Police will have primary responsibility for the enforcement of the provisions at those race meetings where a sworn officer is in attendance.
However, most Victorian race meetings are conducted without any police presence. In those instances, the offences will be enforced by other authorised officers. The Bill inserts new provisions into the Racing Act that enable the Secretary of the relevant department to appoint racing stewards and persons who have appropriate skills, qualifications, knowledge, or experience as authorised officers. It is intended that at least one authorised officer will be present at every Victorian race meeting or official trial meeting.
The Bill provides that the Secretary can delegate this power of appointment to other Executives within the Secretary’s department.
Dealing with offenders
Authorised officers will also have powers to manage people who are reasonably believed to have committed offences. Authorised officers will have the power to direct a person, reasonably believed to have committed an offence under the new provisions, to leave the restricted racing area or racecourse for the duration of the race meeting or official trial meeting. The objective of the provision is to ensure that the person does not cause further disruption at the meeting.
To assist with enforcement of the new offences to manage crowd behaviour, the Bill provides authorised officers with the power to require a person reasonably believed to have committed an offence against the new provisions to provide their name and address.
The Bill provides that safeguards are in place for the disclosure of information obtained by authorised officers in the course of exercising their powers under these new provisions.
Infringement notices are an effective and efficient way to enforce crowd management laws. The Bill empowers authorised officers to serve an infringement notice on a person reasonably believed to have, without reasonable excuse, entered a restricted racing area without authorisation, thrown or kicked a projectile, or otherwise caused a projectile to enter into a restricted racing area, or climbed any fence, barrier or barricade of a restricted racing area.
There may be some instances where a more severe penalty is warranted where an individual repeatedly offends against the provisions, or where the consequences of the offending are serious or significant. To address this, the Bill provides the courts with the option of imposing a ban order against an individual.
The ban order may specify the race meeting or official trial meeting, or category of race meetings or official trial meetings and racecourse or racecourses to which the order will apply.
Where a person’s conduct is serious enough for a court to ban the person from all thoroughbred race meetings and official trial meetings, the ban could also apply to race meetings which are covered in the Major Events Act to ensure that there are no gaps in the regulatory framework.
Fortunately, the conduct this Bill seeks to discourage doesn’t occur frequently. Nevertheless, the potential consequences are so serious that any occurrence is extremely concerning. That is why these additional deterrents, which are already in place at other major sporting events, are needed to help ensure the safety and welfare of all participants, animals, and patrons at Victorian race meetings and official trial meetings.
I commend the Bill to the house.
That debate on this bill be adjourned for one week.
Motion agreed to and debate adjourned for one week.