Equestrian competition demands a lot of time, money and effort on the part of athletes (including the horse) and their supporters. Riders, drivers, handlers and breeders come from the amateur ranks mostly, some of them serious amateurs, but there are also many competitors who derive a livelihood from the horse industry. For all competitors, winning or placing at an event is a big deal personally and professionally.
Competitions, across all breeds and disciplines, are subject to conditions of entry. These conditions usually incorporate the rules of the body that convenes and conducts the event. In modern Australia, these bodies will be incorporated associations (with the initials “Inc.” after their name) or companies limited by guarantee (with the initials “Ltd” after theirs). These bodies are legal entities in their own right, separate from their members. Some of these competitions involve large numbers of participants vying for the prestige of placing and earning titles and prizes. Behind the scenes, whether the event is big or small, a large number of people, mostly volunteers from the membership, work tirelessly to organise and stage the event. So a lot of people come together and rules and conditions are important underpinnings of a successful, fair and enjoyable event.
Compliance with rules and conditions of the competition are policed by stewards or other officials delegated by the body. Many rules of course address matters of safety for the horse and competitor and these are fundamental and must be observed strictly, without question. Dereliction from these rules is dealt with immediately to avoid harm to the competitor or other individuals. But there are other rules which address welfare of the horse (like use of the whip and prohibited substances) and behaviour of the athlete or exhibitor (like attire, interaction with judges and social media) and many other matters. Breach of these rules might be addressed on the day or reserved for consideration on a later date. Although some rules are more important than others, every one of them must be obeyed whatever the athlete or exhibitor might think of them. They apply to everyone and are to be applied and enforced without fear or favour.
The application of the conditions and rules of competition and enforcement of them are ultimately in the hands of the association’s committee of management or the company’s board of directors. It is a burdensome and demanding task. It entails ascertaining the meaning of the conditions and rules, making findings of fact around the incident, applying the conditions and rules to those facts and then determining a disciplinary outcome for the competitor. When exercising powers to investigate breaches of conditions and rules and punish a competitor, the committee or board adopts a number of roles: prosecutor, judge and jury. The competitor has agreed, by virtue of being a member of the body holding the event and agreeing to enter the competition subject to its conditions, to be subject to the disciplinary process conducted in this way. But it is important for everyone involved to remember that the process, while private and consensual, is not above the law.
While Australian courts do not play any role in reviewing the reasonableness of a disciplinary decision nor afford the competitor a right to a rehearing on the merits, they will exercise jurisdiction over the disciplinary body and intervene on behalf of the competitor where legal error has occurred in the disciplinary process including the nature of the sanction imposed.
Bodies can fall into reviewable legal error for a number of reasons. Chief amongst them, the failure to accord the competitor ‘fair process’ (or ‘natural justice’ as it is known in the area of administrative law). Fair process entails 2 fundamental principles: Firstly, impartiality and, second, fairness.
Where the body has laid out the disciplinary process in rules, then those provisions must obviously be followed strictly. Any serious departure from that process can potentially amount to legal error since the body and the member legally agreed there would be no deviation from that process. It would be unfair for the body to deviate from agreed process and act arbitrarily. But slavish adherence to the process laid down in the rules is never conclusive, from a legal view, of whether fair process has been followed. This is despite the amount of detail in the rules around the process. Whether fair process was accorded the competitor of course depends on the willingness and capacity of him or her to challenge it in a court. On a legal challenge, the whole process will be subject to close scrutiny by lawyers and the court to determine if the fine, disqualification, suspension or expulsion was valid in the eyes of the law. I am now seeing more challenges by professionals whose livelihood is impacted by a sanction because they have the financial means to commence a legal challenge.
The notion that a competitor has a right to be heard is part of the requirement of fairness. This right is much more than an opportunity to “stand up and tell us what you have to say for yourself”. It embodies a number of further rights such as the right to be informed of the rule or condition allegedly breached, provision of a copy of the evidence relied upon by the disciplinary body to support a potential finding that the breach occurred, and the opportunity for the competitor to explain, excuse or justify his or her behaviour and to put forward mitigating factors if a sanction were imposed.
The requirements of fair process are not, regrettably, set out in any legally codified body of rules which might be checked. In any given disciplinary process, the requirements to satisfy the legal principles of impartiality and fairness will vary, depending on a number of factors. These factors include the facts of the case, the nature and severity of the breach, the conditions and rules of the body, the nature and functions of the disciplinary body and the interests that will be affected by the outcome.
Disciplinary processes are important nowadays. Use of prohibited substances and defamation of fellow competitors/members/judges on social media are 2 widespread concerns that warrant quick and decisive action. Bodies that are serious about clean sport and appropriate conduct need to closely review their disciplinary processes starting with clarity around their rules and conditions, consideration of evidence gathering and storage, through to the minimum required steps for observing fair process.
14 March 2019
© 2019 Michael Mackinnon, Solicitor & Independent Counsel