Needed

Harness Racing got some much needed good news when the appeals of both Sportsbet and Betfair were dismissed by the High Court this morning.

Had the decision gone against HRNSW it would have struck a near fatal blow for racing outside of Menangle in the immediate future.

Will post more thoughts later but the racing industry has rediscovered some of its voice and the HRNSW release is below:

The New South Wales harness racing fraternity are rejoicing following the announcement by the Australian High Court to dismiss the appeals by both Sportsbet and Betfair this morning.

Harness Racing NSW Chairman Graeme Campbell said it is a great day for harness racing.

“This decision provides longevity for our sport,” said Campbell.

“It is truly a great day for harness racing and its participants, as it will allow prizemoney increases and development across a number of areas.

“We will be able to market and showcase harness racing to the NSW community like never before.”

CEO Sam Nati was also overjoyed with the announcement.

“It’s an historic day for harness racing in New South Wales and the future has just got a whole lot brighter, “he said.

“The Board of HRNSW will meet next Tuesday to discuss a number of initiatives and we will be making an official announcement following that meeting.”

Below is the transcript from today’s hearing.

Today the High Court dismissed an appeal from the Full Court of the Federal Court of Australia, which had held that approvals given to Sportsbet Pty Ltd (“the appellant”) by Racing New South Wales and Harness Racing New South Wales (“the respondents”) to use race field information for wagers, but only upon payment of fees to the respondents, were validly granted under the Racing Administration Act 1998 (NSW) (“the Racing Act”). The High Court heard this appeal concurrently with that in Betfair Pty Limited v Racing New South Wales [2012] HCA 12.

The appellant holds a sports bookmaking licence, which authorises it to accept wagers by telephone and over the internet. From its principal place of business in the Northern Territory, the appellant receives wagers from anywhere in Australia on races, sporting and other events, including horse races held in New South Wales. Section 33 of the Racing Act makes it an offence for a wagering operator to use information regarding horse races held in New South Wales, unless approval has been granted and the operator complies with conditions to which the approval is subject.

Pursuant to s 33A of the Racing Act, each of the respondents (as a “racing control body” within the meaning of that provision) granted the appellant approval to use such information, subject to the condition that it pay certain fees. Under Pt 3 of the Racing Administration Regulation 2005 (NSW) (“the Regulations”), the fees were calculated by reference to the appellant’s wagering turnover.

If the appellant’s wagering turnover was below a certain threshold, the appellant would not have been liable to pay a fee; however, the appellant’s wagering turnover exceeded that threshold amount. The appellant challenged both the respondents’ power to grant the approvals and, more broadly, the validity of ss 33 and 33A of the Racing Act and Pt 3 of the Regulations.

The basis of the appellant’s challenge was that the respondents’ power, under the Racing Act and the Regulations, to grant the approvals subject to payment of the fees imposed a burden or disadvantage on trade and commerce between the Northern Territory and New South Wales, which was not imposed on intrastate trade and commerce of the same kind. The appellant contended that the legal or practical effect of the legislation was to protect New South Wales wagering operators from competition from wagering operators in the Northern Territory.

Section 49 of the Northern Territory (Self-Government) Act 1978 (Cth) (“the Self-Government Act”) provides that trade, commerce and intercourse between the Northern Territory and the Australian States “shall be absolutely free”.

The primary issue arising from the appellant’s challenge was whether the respondents’ power of approval, as conferred by the Racing Act and the Regulations, must be confined to avoid inconsistency with s 49 of the Self-Government Act.

Under 109 of the Constitution, where inconsistency arises between a law of a State and a law of the Commonwealth, the latter prevails and the State law will be invalid to the extent of the inconsistency.

A single judge of the Federal Court declared that the approvals granted by the respondents were invalid, but rejected the broader contention that ss 33 and 33A of the Racing Act and Pt 3 of the Regulations were invalid. On appeal, the Full Court held that the approvals were validly granted, and upheld the validity of the impugned provisions of the Racing Act and the Regulations.

The appellant appealed, by special leave, to the High Court of Australia.

The High Court dismissed the appeal, with the result that the approvals given by the respondents, conditioned upon the payment of the fees, are valid.

The High Court held that the wagering turnover thresholds were not discriminatory measures of a protectionist kind. Both intrastate and out of State competitors, including the appellant, were entitled to the benefit of wagering turnover thresholds. The burden of the fees was imposed uniformly on both intrastate and out of State wagering operators. Further, and in any event, there was no necessary connection between the location from which a wagering operator conducted its business and the turnover of that business.

This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons.

In The News

From some recent news

Stablemate and talented mare Vertigal is expected to be back in work later this week after spending a short time in the paddock because of a virus.

“I was unhappy with the way she was racing since a spell and we discovered she had a low grade virus so she was sent for a short break and the lady who is looking after her rang me to say they had to drain a hoof abscess in the last week too so that might have been why she was below her best and while time is against us hopefully I can get her ready for the Carousel heats.”

Abscess Makes The Spell Less Longer

“There’s something happening here, what it is ain’t exactly clear”

Well hopefully we are now more enlightened.

The recent results and formline is a foreign feeling – well with Vertigal anyway. We were looking at taking out a lost and found ad seeking Vertigal’s sprint that had seemingly gone missing in her past few starts including her latest lackluster run. This was frustrating as her trackwork in recent weeks was pleasing her master and even attracting the attention of other stables.

The recent deluge that Menangle copped was suspected of contributing to the racetrack malaise. It came to a point that such were her runs her next start was a freshen up in spelling paddock.

Suspect #1 was a cold / virus. No shortage of them going around several stables although most of our stablemates have been performing well. There was nothing seemingly amiss with her recovery

Suspect #2 was the curse of the 4yo mare. It has struck many down as they transition to racing against all comer. It impacts even the best – Lady Euthenia and more recently Courageous Annie seemingly experienced it but happily both bounced back to form nearing their best.

Suspect #3 was identified today as an abscess. Lurking under one of her horseshoes was a significant abscess that has now been lanced and cleaned out. The more equine educated report it should hopefully heal in the next couple of days. So all going well a racetrack return is back on the cards for late March / early April

So a mini-campaign down and hopefully we can now report the sprint that was lost is now found.

Spot the Difference

What has the investigation into the investigation into the (honourable) Labor MP Craig Thomson’s alleged misuse of trade union credit cards to pay for prostitutes have to do with harness racing? Read on.

A SMH report not that long ago that “Officials from the Australian Government Solicitor told a Senate hearing yesterday it had invoiced Fair Work Australia for $912,000 since it was first engaged in relation to the union investigations in April 2009.”

The issue of efficient and effective use of taxpayers money aside, Fair Work Australia is into its fourth (yes fourth) year of investigation of claims of the now MP paid for prostitutes with Health Services Union credit cards. Fair Work Australia, an independent statutory body, has been investigating Mr Thomson over these claims.

Even the current head of the Health Services Union suspects government interference to prolong the inquiry. The reason would appear to be the incumbent government is dependent on having Craig Thomson remain as a  sitting member otherwise its parliamentary majority is compromised. Yes, this nation may well be run on the insulation of a government MP who appears to have some serious questions to answer about the appropriate use of other people’s money.

Back to harness racing and this state’s governing body HRNSW, like Fair Work Australia, is an independent statutory authority. These bodies walk like a duck and quack like a duck – they are quasi government departments with minimal accountability.

Independent and the NSW Minister for Racing is in the news again – we’ll get to that. Just like ‘unlucky’ I am convinced ‘independent’ has a different definition within harness racing. Saying harness racing is independent of the NSW government is simply not true.

In creating these ‘independent’ statutory authorities government’s have seemingly found a loophole to dictate what happens but maintain their all-important plausible deniability.

As a citizen and taxpayer you should be concerned. A lot of the time politicians and governments are counting on mainstream apathy.

 

Bulli Two Years On

It seems hard to believe it has been two years since heading down to Bulli with everything that has happened since – and more chapters are being written. This release about the Linden Huntley at Bulli recently appeared and nice to see the filly get a mention.

Whilst we are obviously biased the Linden Huntley is a fantastic series. It is one of the very few open race series that is not determined by juvenile futurity payments. Case in point last year’s winners were not eligible to contest a group one race.

In our case we were not eligible for either the Australian Pacing Gold nor the Australasian Breeders Crown. We were eligible for Bathurst but were robbed whilst some say redemption others say deserved the Breeders Challenge. The other point there is we entertained and would have liked to return for the 3yo race but it directly clashes with qualifiers for the NSW Oaks.

Best of luck to the babies around Bulli on Saturday.

Champions Win the Linden Huntley Little Finals

History shows that it takes a champion to win the Group 2 Linden Huntley Little Memorial Finals and the 2012 edition will unearth yet another two year old with a big future.

In the colts and geldings division most recent Linden Huntley Memorial winner Scandalman won the 2012 Victoria Derby whilst multiple Group 1 winner Lombo Pocket Watch took the title in 2006.

As for the fillies division Vertigal, Lilac Stride and Sweet Maddy Lombo appear on the Honour Roll.

LINDEN HUNTLEY LITTLE MEMORIAL HONOUR ROLL

YEAR		STAKES	HORSE AND DRIVER	RATE
2011	(c&g)	$50,000	SCANDALMAN NZ (JM Douglass)	2:03.1
	(f)	$50,000	OUR MOLLY FINN NZ (Kate M Gath)	2:01.4
2010	(c&g)	$50,000	DEE DEVITO (MK Sullivan)	2:08.0
	(f)	$50,000	VERTIGAL (DJ Thorn)	2:03.8
2009	(c&g)	$50,000	TWO EYE SEE (MT Hewitt)	2:00.2
	(f)	$50,000	LILAC STRIDE (JJ Alchin)	2:05.3
2008	Not Held
2007	(c&g)	$50,000	LEFT TO LUCK (GW Bennett)	2:05.7
	(f)	$50,000	CHERI CULLEN (BJ Hewitt)	2:04.3
2006	(c&g)	$50,000	LOMBO POCKET WATCH (GJ Fitzpatrick)	2:02.7
	(f)	$50,000	TWO THUMBS UP (GW Bennett)	2:03.6
2005	(c&g)	$50,000	KYALLA DREAMTIME (BA Sarina)	2:04.6
	(f)	$50,000	SWEET MADDY LOMBO (GW Bennett)	2:03.6
2004	(c&g)	$40,000	MIGHTY RIVER (GJ Fitzpatrick)	2:02.9
	(f)	$40,000	DIE WONDERING (GW Bennett)	2:03.8
2003	(c&g)	$30,000	GAZUMPA NZ (NA Day)	2:01.9
	(f)	$30,000	JABIRU DANCER (DR Hancock)	2:01.2
2002	(c&g)	$20,000	ROBBO LOBELL (DR Perrot)	2:01.1

Snap Happy

Some recent snaps of Vertigal’s little sis taken in mid-January in country NSW.

Above: The blaze is not going anywhere

Below: Sally (Height of Wisdom) and Lilly the filly run away after a feed and a pat. The foal even paced for several strides

Pacing away

ICAC M.I.A

“No mistake is more common and more fatuous than appealing to logic in cases which are beyond her jurisdiction.” Samuel Butler

After several court adjournments the first news has started to filter through the media regarding action in the green-lighting scandal. Whilst refraining for the moment from commenting on the actual case(s) the question needs to be posed – and indeed repeated – as to why the body specifically established to deal with such matters in ICAC is not being utilised.

We’ve previously asked this question a few months back. As mentioned there are at least two precedents where ICAC has previously dealt with matters involving corrupt stewards.

We’ve also  questioned on several occasions this supposed independence from government. Take a look around and it seems the republic of racing in this state has a different definition of independence than exists elsewhere.

And the reason why a specialist, independent judicial body is not overseeing this monumental scandal? The answer is apparently found in the relatively short section 5 of the 2009 Harness Racing Act:

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.”

With that it would seem the option to have ICAC deal with the current scandal is neutered.

Jurisdiction and accountability can be double-edged swords.

Now we may be accused of being bitter with the decision of the Tiara and lack of any avenue to review or appeal decision made with multiple mistakes. Sorry there is one avenue – the Supreme Court at an estimated cost of $25k+ per day.

But we’re yet to find one agency whether they be administrative / government / regulatory / political of any persuasion who do not seem to ignore all the evidence to the contrary of what s5 states. When presented with the quote from Justice Nye Perram that the racing administrations “he does not know what he is talking about”.

Which poses another question – if the administrations are independent of government just who are they accountable to?

Section 5 is seemingly convenient to keep the races running to schedule and providing wagering taxation and revenue. But even if none seems to care about the wider implications on participants rights it has the real potential to bite the industry when it comes to something like this scandal.

This is one going out to HRNSW, NSW Racing Appeals Tribunal (RAT), the HRNSW Integrity Auditor, the office of the Minister for Racing, The Department of Gaming and Racing, and the NSW Ombudsmen. To paraphrase a song from The Whitlams “so they can say the races run on time”.

Brilliant!

One of those things I wish I’d created

What’s The Frequency, Kenneth?

Kenny Callander has saddled up not once but twice in recent days and unloaded on several fronts on the appointment of John Messara as chairman of Racing NSW.

One angle Kenny and most racing journalists are yet to cover – the board that is ‘independent’ of government is announced by the Minister, after interviews by a board appointed by the Minister and his government department, after the directors apply via the government department. It is then governed by a NSW Act of Parliament.

We’re pretty sure the definition of independent has not changed and refers to someone or something that is free from the influence or control of another. To say racing administration in NSW is independent of government is at best tenuous.

HRNSW is currently going through a new board appointment process along similar lines – something we have some insight into. On the three-man selection panel one is a former government minister, one is a former government department (apparently Liquor and Gaming) head, and one a trainer/driver. Not for a minute are we suggesting anything is wrong with the composition of the panel; rather the continued misnomer of independence from government.

December 19: Jobs for the boys at Racing NSW

A note for Barry O’Farrell, Premier.

In almost 50 years of journalism I have never had a reaction to a story like I had to my piece in Friday’s The Daily Telegraph into the move by your Racing Minister George Souris to install his Hunter Valley mate John Messara as Chairman of Racing NSW.

Baz, everybody was on my side from average punters to captains of industry to leading breeding figures to board members and executives of race clubs – and they are all your constituents.

Nobody likes people appointing a mate and that is what happened with this appointment.

On that analysis, I think Souris is a joke, but Mr Premier it has happened on your watch.

Barry we all love you in NSW, but we don’t like weak people. Opinions can change. Be the Barry O’Farrell we think we know.

***

JOHN Messara claims he has experience in all aspects of racing. I don’t believe that to be quite correct.

John is a member of what they call in the US the “one per cent club”.

In racing the one per cent club comprises the wealthy breeders who breed racehorses and the wealthy owners who race them.

The ninety nine per cent club is made up of the punters who bet on every race and provide the lion’s share of the funds that keeps the sport going.

I find it embarrassing there are people who think punters should be the ones happy to subsidise a rich man’s pastime.

December 16: Why John Messara’s wrong for role as NSW Racing chairman: Ken Callander

George Souris, the Racing Minister, plays with words.

I think it is disgraceful that as a Minister of the Crown he put out a press release relating to the criteria needed for appointment to the board of Racing NSW and then in direct conflict with the criteria appointed breeding baron John Messara as chairman.

Barry O’Farrell, I hope you are paying attention. I know rumours were strong a few weeks back that Souris would be removed from the ministry. I wish now they had been true.

The media release on NSW Government letterhead stated (in part): Expressly prohibit board membership if the Selection Panel determines that the person has a direct or indirect pecuniary interest in conflict with the role of a board member

And then in direct quotes attributed to Souris it also said, “Currently members are only required to disclose a pecuniary interest in a matter and it is left up to the board to decide if they should stand down when that item is being considered. These reforms will prohibit them from participating in these matters.”

Who has a bigger pecuniary interest in racing in this state than a man who controls one of the three major studs and stands stallions on his property who command some of the most expensive service fees ever advertised in Australia?

There is no doubt Messara is a smart man, a successful businessman with plenty of charisma and indeed he has a love of racing and a good knowledge of many facets of it. But a conflict of interest he definitely has.

Messara is not popular in the racing industry.

Three times he stood for election for the committees of the AJC and the STC and was beaten at the polls each time. He offered himself for the Board of the Australian Turf Club and was not successful in the selection process.

In 2008 Messara was to be one of the men elected to the board of Racing NSW when the then Sports Minister Kevin Greene aborted the whole election process on the advice of his probity adviser.

After another round of interviews Messara was subsequently offered a position on the board under the then chairman Alan Brown. He declined that appointment. I do not know why, but some say because he was not going to be chairman.

So now John Messara is chairman and I hope he turns out to be the best chairman we have ever had. Racing needs him to be.

To me, these are the main issues where I want him to show his mettle, but please don’t try and tell me he doesn’t have a vested interest in many of them.

Prizemoney

Messara is an advocate of getting prizemoney as high as possible, particularly if Racing NSW wins its High Court case with the corporate book-makers and is rolling in dollars. I feel pushing prizemoney endlessly upwards only forces up the prices of yearlings and stallions fees, something which of course benefits Messara.

I think money would be better spent in lowering owners’ costs by Racing NSW subsidising track fees and stabling costs for horses in training. At the moment, depending on where your horse is trained, city or country, this could range from $50 to $90 per week. This way all owners benefit. On this analysis, Messara should not have a vote on prizemoney issues.

Programming

Programming in NSW heavily pushes short course events and not staying races. Our most important classic, the AJC Derby, is 2400m and of course the ultimate race in Australia, the Melbourne Cup, is 3200m. Guy Walter, one of our premier trainers, told me at the races this week that he is most disappointed with the number of races being programmed beyond 1600m. Messara’s stallions at Arrowfield are sprinting stallions so he should not have a vote on programming.

Yearling sales

Racing NSW needs to lobby the major yearling auctioneers to set better standards for the sale of yearlings to protect racing’s owners. Complete ownership of all yearlings should be fully stated in the catalogue and vendor bids should be clearly pointed out as bidders are often surprised to see studs retain ownership in yearlings they have sold. All yearlings should be drug tested. Also, Racing NSW should point out more forcibly to owners they can buy tried horses in England at much cheaper prices than the average yearling prices and with better chances of success. Obviously Messara could not have a vote here.

Promotion

Promotion is a tricky issue, particularly overseas. Big breeders like to promote our racing overseas to entice clients to Australia to not only enjoy the racing but to buy yearlings. Affiliations with overseas interests can create problems as they did with the Chris Munce case when Hong Kong authorities wanted the jockey to continue serving a sentence imposed in Hong Kong when he came out of Silverwater jail. Many breeders were on the Hong Kong side as it was threatened Hong Kong buyers would not bid for yearlings in NSW. Fortunately Racing NSW CEO Peter V’landys told them to go to hell and granted Munce a licence. Messara could not vote on such an issue.

SKY or TVN

Racing NSW has a right of veto on whether the Australian Turf Club signs its television rights with SKY or TVN, which the club 50 per cent owns. The promotion of breeding will certainly come into discussion here and to the extent that it does, Messara should sit out.

Long-term elite product

In 2011 it is obvious to me that the racing and punting public both want elite racing. I am absolutely certain that the solution for NSW is to team up with Victoria, which is Australia’s No. 1 racing product. But Messara is friends with Bob Bentley, the supremo of racing in Queensland, where confidence in the administration is such that the corporate bookmakers won’t let punters on in anywhere near the amounts they do in Sydney or Melbourne. Is it preferable to go with Melbourne or do we shackle ourselves with the likes of Brisbane and Adelaide? Messara does not have a percuniary interest, but he does have a vested one in this issue.

The Suspensory is Killing Me

Just like the Sydney weather of late a dark cloud appeared over the stall when late last week whilst heading to trackwork some swelling was noticed around one of Vertigal’s legs. It appeared to be a suspensory ligament and the vet was immediately called.

Suspensory injuries can be career-ending so there were some gloomy  thoughts and scenarios whilst awaiting the diagnosis with the vet’s visit determining her immediate racing future.

Thankfully we can report that while she did give her suspensory a nudge, the scan showed that some tendon wrapped along side the suspensory was actually causing most of the swelling. When you have swelling in the suspensory area, and given their nature it can sometimes be good night Irene. Thankfully it looks like it isn’t too bad and she’s responded well to initial treatment – she is not lame or limping and without the bandage the layman would not have spotted anything was up. She obviously eases off the work for a fortnight or so and will set her back some weeks but not months. Sweet relief.