On 9 August 2011 the Queensland Civil and Administrative Tribunal (QCAT) handed down its decision in the matter of Wiggins v Racing Queensland Limited  QCAT 370. McInnes Wilson Lawyers represented Mr Ryan Wiggins in this matter and in this edition of the Administrative Law Update we will take a closer look at the outcome and the effect it will have on the Queensland racing Industry.
Mr Ryan Wiggins is a registered jockey in the Brisbane Metropolitan area and has been riding professionally for some 12 years. On 28 May 2011 Mr Wiggins, at the completion of riding at a racing meeting at Doomben Racecourse, provided a urine sample that returned traces of morphine and codeine. Morphine and codeine are listed as banned substances in the Australian Rules of Racing (the Rules). The levels found in Mr Wiggins’ system were above the acceptable threshold set out within the Rules.
Mr Wiggins explained his positive sample as being due to the fact that he had sought medical treatment, during the week prior to his drug test, for tooth ache associated with problematic wisdom teeth. Mr Wiggins was prescribed Panadeine Forte for his pain. He last took this medication sometime in the early hours of the Friday morning before his positive test on the Saturday afternoon.
At a Steward’s Inquiry on 21 June 2011, Mr Wiggins’ account of the presence of the substance was entirely truthful. However, he was found to be in breach the Rules, and was handed a 12 day racing suspension. Mr Wiggins appealed this decision to the First Level Appeals Committee which upheld the original decision. Mr Wiggins then brought the matter before QCAT.
QCAT overturned the original decision of the Steward’s Inquiry ordering that the 12 day suspension be set aside in lieu of a reprimand.
What the Rule States
For the context of this decision to be understood it is important to briefly set out what the Rules state in respect of banned substances. Rules 81B and 81C of the Rules set out the expectations on riders in terms of banned substances. Rule 81B contains a list of banned substances, which includes morphine and codeine. Under the Rules morphine and codeine are acceptable at certain levels within a jockey’s system. Rule 81C specifies the acceptable thresholds for these substances. Mr Wiggin’s urine sample returned a figure which exceeded this limit.
Rationale of Rule
The rationale behind Racing Queensland Limited’s drug policy is to ensure the safety of riders. The purpose of rule 81C is not dissimilar to drink driving laws where drivers are allowed on our roads as long as their blood alcohol reading does not exceed the legal limit. Racing Queensland Limited believes that a rider over the prescribed limit would have decreased cognitive capacity and would be a risk to themselves and other riders and therefore should be prohibited from riding.
Mr Wiggins was the first jockey to be charged under the ‘banned substance’ rules since the inception of a proposed new policy introduced by Racing Queensland Limited. The new policy involved harsher penalties for riders charged under these rules. Where previously jockeys charged under these rules had received a reprimand, it was the policy of Racing Queensland Limited that they were now likely to receive a suspension.
The Tribunal was satisfied, by way of the medical evidence before it, that although Mr Wiggins returned a positive result it is very likely that the effects of the Panadeine Forte had dissipated by the time Mr Wiggins rode his first race on Saturday 28 May 2011. The Tribunal was also satisfied that other factors including Mr Wiggins’ wasting before his races, dehydration and level of metabolism may have contributed to the elevated reading.
Inadequate Method of Dissemination
Notifications to Riders
A key issue in this case was Racing Queensland Limited’s method of dissemination to its riders. Mr Wiggins argued that, although he was aware of the Rules, he was not specifically aware and/or familiar with rule 81B and 81C of the Rules. He was aware of them to the extent he knew that there was a banned substance list, however, he was uncertain of what specific substances were contained on that list. Mr Wiggins was also unaware of Racing Queensland Limited’s new policy to enforce harsher penalties for breaches concerning the banned substance rules.
Racing Queensland Limited argued that it was incumbent upon riders to be up to date, aware of and ensure compliance with the Rules. It stated that riders were advised of news and policy changes by way of the Monthly Racing Queensland Magazine. Specifically, it relied on an article it published in the February edition of the magazine advising riders of the banned substance rules and forewarning of the policy change to impose harsher penalties for breaches of these rules in the future.
Evidence from Mr Wiggins, supported by evidence of other prominent Brisbane jockeys, suggested that this was an inadequate way of educating riders and notifying them of important policy changes. The Tribunal heard that some of the riders did not read this magazine at all and others only flicked through the magazine to look at photos and articles that interested them. Of particular significance in this case was that the article was on page six of the magazine – in a part designated for thoroughbred, harness and greyhound racing – as opposed to being specifically relevant to thoroughbred racing. There was nothing on the cover of the magazine drawing the attention of riders to the Rules and the proposed policy change in the final few paragraphs of the article.
The Tribunal held that it was Racing Queensland Limited’s responsibility, as administrators of the sport, to ensure that jockeys were aware of such issues and that the magazine article was insufficient in this respect. The Tribunal contended that if Racing Queensland Limited wanted to change policy then it is ‘incumbent upon them to publicise that change of policy in a manner which is likely to come to the jockey’s attention.’1 The Tribunal stated that a monthly magazine ‘may not attract a lot of attention’2 and that if it was going to be used as a vehicle of dissemination then it should at least have a notification on the cover drawing the attention of riders to the article. The Tribunal went on to suggest that there was nothing preventing Racing Queensland Limited from adopting a more suitable system of dissemination such as notices in the jockey rooms or bulk emails to advise riders of policy changes or other important notifications.
Information available to riders
In respect of rule 81C, Mr Wiggins contended that he was unaware of the morphine and codeine threshold levels and what medication, or amount thereof, he would have to consume to exceed the thresholds. This again was a view supported by several other prominent Brisbane jockeys who put to the Tribunal that there was no material readily available to them on this subject. Racing Queensland Limited’s website contained no information or discussion on the topic of banned substances. The only place where information could be found was within the Rules themselves. Critically, although they set out what substances are banned, the Rules do not contain any advice as to what medications, or quantities thereof, a rider can or cannot take in terms of preventing a breach of the Rules.
The Tribunal found Racing Queensland Limited’s method of educating its riders in respect of the banned substance rules to be inadequate. The Tribunal found that simply providing the Rules alone, without discussion or explanation, was remiss of Racing Queensland Limited in its duty to educate its riders. The Tribunal suggested that Racing Queensland Limited adopt a strategy similar to that introduced by Racing Victoria Limited as a consequence of a similar banned substance case involving prominent jockey Damien Oliver. Racing Victoria Limited, as a result of the Oliver case, developed a section on their website devoted to banned substances which is readily accessible to its riders. It thoroughly explains the rules, what substances are banned, what medications a rider can and cannot take, the appropriate quantities of medication and contains contact information of nominated medical professionals for assistance.
Effect of Decision on Queensland Racing Industry
This decision is an important decision moving forward for Queensland jockeys. It will act as a precedent for matters involving jockeys and banned substances and should act as a catalyst to improve the manner in which Racing Queensland Limited educates and disseminates information and notifications to its jockeys.