The recent case of a high-profile trainer, Trevor Sutherland, winning his appeal against a three-year disqualification from racing for sending horses to slaughter, brought to light two deeply concerning loopholes in the NSW rules of racing – the rule Racing NSW repeatedly claim sets them apart from all other states. We have officially asked Racing NSW four times if, when drafting the rule, this was intentional or an oversight and also whether the rule will be amended to ensure NSW horses are indeed protected from slaughter as they claim, but they refuse to respond. A copy of the letter is at the bottom of this email.
In short – what the Sutherland case exposed was that, according to the appeals panel:
1. Racing NSW’s local rule 114, which they claim is designed to prevent horses being killed when no longer wanted, does not capture circumstances of intent if it is decided it was not the “primary intent” of the person sending them to be killed (something we have reported on previously)
2. the words “similarly disposed of” used in LR114(5)(e) which states a horse is not to be, directly or indirectly, sent to an abattoir, knackery or similarly disposed of should be interpreted to mean “a horse is disposed of (killed) for the purpose of its meat being used as food.”
Therefore, if a racing participant kills a thoroughbred horse on their own property and buries them in a pit, for example, they would presumably not be in breach of the rule.
The continued refusal by Racing NSW to answer our simple questions regarding both of these loopholes and also our question as to whether mares used for breeding are protected under the rule, indicates that they either intentionally created this loophole, or, at best, are now aware of it, but are refusing to make the required amendments that will do as they claim and protect all horses under their jurisdiction from being killed when no longer wanted.
When the Racing NSW retirement plan and local rule 114 was first announced, CEO Peter V’landys stated “The youth of today care more about animal welfare than any other generation and we need to keep up with their expectations… Every horse in NSW will be re-homed, whether it has raced or not.”
Sadly, it has become clear this statement was nothing but a smoke screen, designed to dupe the public into believing that the horse racing industry was finally taking responsibility for the lives of the horses they could not exist without.
For background on the Trevor Sutherland case click here.
Below is the final letter we sent to Racing NSW regarding this issue, directed to their general counsel.
Dear Mr Sweney,
We are resending this request for urgent action regarding this very concerning loophole. This is the fourth time we have contacted you regarding this matter. We’re sure you will agree action is crucial if LR114 is to serve its intended purpose.
The email originally directed at Mr V’landys on February 26, 2021 below….
In reviewing the decision of appeal of licensed trainer Mr Trevor Sutherland, 24 February 2021, we’d like to draw your attention to two very concerning points.
1. When explaining the process of their decision, the appeals panel considered ‘Proper construction of LR114(5)(e)’. They concluded that they preferred the construction of the rule contended by the stewards, in that ‘similarly disposed of’ should be interpreted to mean “a horse is disposed of (killed) for the purpose of its meat being used as food.” (Point 42)
Can you please clarify if this is the intention of the rule – to only impact on responsible persons whose horses are killed for the purpose of their meat being used as food? If so, does this mean it is acceptable to Racing NSW that horses continue to be killed where their meat is not utilised eg. their body is buried in a pit? If this is not the intention of the rule, does this mean Racing NSW will amend LR114 to ensure this loophole is addressed.
2. In points 44 and 45 it was determined that LR114(5)(e) does not incorporate a circumstance in which the “primary intent” is not to have the horses killed, even if the person giving the horses away is aware there is a sufficient risk this could eventuate.
Will the rule be amended to mitigate the likely risk of the floodgates now being open to other responsible persons taking advantage of such a loophole.
Relevant points referred to above as stated by the appeals panel:
42. In construing this rule, the Panel’s task is to give the words used by the drafter the meaning that they are taken to have intended. “Taken to have intended” of course does not relate to the subjective intention of whoever drafted LR114. That is not known. All the Panel has to go on is the text of LR114, its stated purpose, and the application of common sense given that we are asked to interpret rules relating to the regulation, and protection, of the horse racing industry. Bearing all that in mind, at least in relation to the words “similarly disposed of”, we prefer the construction of the rule contended for by the Stewards. We hold this view even though we consider there is force in the argument put forward on the Appellant’s behalf. An approach using a somewhat economical use of words has been taken to the drafting of LR114(5)(e). However, we do not consider the words “similarly disposed of” need to have the elements or similar elements outlined in the Appellant’s submissions at . In our view, the words “similarly disposed of” relate more to an end result – that is, a horse is disposed of (killed) for the purpose of its meat being used as food.
44. In the circumstances here, we have found that the primary intent of the Appellant in giving the horses Redfu and Rozzi to Mr Brown was for them to be used by Mr Brown to jump and hunt. While we have also found that the Appellant knew that there was a risk, once Mr Brown had possession of the horses, that they may not work out as suitable for hunting and jumping, and hence could be killed for meat for Mr Brown’s dogs, that was not the intent (destruction for dog food) with which the Appellant gave Mr Brown the horses. It was a risk that he knew could eventuate, rather than the intent that he had when giving the horses to Mr Brown.
45. Turning back to the words used in LR114(5)(e), the facts as found by us mean that what has occurred here is not caught by the rule. For the Appellant to be in breach of the rule, we consider that his intent must have been, in giving the horses to Mr Brown, that they would then be killed, and their meat used as food. That was not the Appellant’s intention. While knowing there was a risk that the horses could be destroyed for food, his intent was that they be used by Mr Brown for jumping and hunting. The fact that there was a risk that this would not work out, and the horses could subsequently be killed (as they were) is not a factual scenario that is caught by the rule. If the drafter wanted such a scenario to be caught by LR114(5)(e), then the rule should have, in our view, been drafted to incorporate such circumstances.
Many thanks for your time. We look forward to hearing from you.