[1] At Te Rapa racecourse on 7 May 2005, a racecourse inspector required Lisa Cropp, a jockey, to supply a urine sample for drug testing purposes. The sample tested positive. Ms Cropp seeks to prevent this positive result being used against her by challenging the validity of the rule the inspector relied upon, r 528. That rule makes it an offence for a jockey to have any controlled drug present in his or her urine or for a jockey to refuse to provide a body sample when requested to do so. Ms Cropp appeals against a decision of the High Court, by Andrews J, which upheld the rule.
[2] Ms Cropp’s counsel argue that the rule is invalid, as it is not made pursuant to a statutory provision which specifically enables a rule to impose an obligation to provide bodily samples, in derogation of her fundamental rights to bodily integrity and to avoid self-incrimination.
[3] Rule 528 is a statutory regulation. To be valid it has to be authorised by the terms of s 29 of the Racing Act 2003 and in particular by s 29(2)(d). Section 29 relevantly provides:

29 Racing rules

(1) Every racing code must make, and maintain in force, rules regulating the conduct of racing by that code.

(2) Without limiting subsection (1), any racing rules of a racing code may provide for—

(a) the appointment, functions, and duties of stipendiary stewards and racecourse inspectors; and

(b) the licensing of trainers, jockeys, drivers, and apprentices, and related matters; and

(d) the conduct and control of race meetings, including safety requirements; and

(e) prize money and other stakes, programmes, entries, withdrawals, weights, penalties, handicapping, allowances, weighing, starting, and running; and

(f) punishments for breaches of the rules; and

(g) determinations and appeals; and

(h) disqualifications and suspensions; and

(i) any other matters relating to the conduct of races and racing that the racing code thinks fit.

(3) As soon as practicable after the date of commencement of this Act, each racing code must send to the Board a copy of its racing rules that were in force immediately before that date, and those rules must be regarded as having been made for the purposes of subsection (1).

[4] Section 31 of the Act provides:

31 Racing rules must not conflict with any Act or general law

(1) Any provision of any racing rules that is in conflict with any provision of this Act, any other Act, or the general law of New Zealand is invalid.

(2) Despite subsection (1), any racing rules may provide for the appointment of inspectors, in addition to those appointed under section 47.

[5] Counsel for the appellant argue that s 29(2)(d) is too general to authorise a rule requiring random drug testing by provision of bodily samples and that such fundamental rights cannot be overridden by exercise of such a general power as s 29(2)(d). Counsel invited the Court to apply here the principle of legality as stated by Lord Hoffmann in R v Secretary of State for the Home Department, Ex Parte Simms [2000] 2 AC 115, 131 (HL):

... Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. ...

Counsel submitted that this principle had been applied in a number of New Zealand cases, particularly R v Pora [2001] 2 NZLR 37 at [53] (CA), Ngati Apa Ki Te Waipounamu Trust v The Queen [2000] 2 NZLR 659 at [82] (CA), and A v Council of the Auckland District Law Society [2005] 3 NZLR 552 at [33] (HC) Randerson J.

[6] Andrews J found that the New Zealand Bill of Rights Act 1990 did apply. However, she found that safety concerns arise in horse racing and that controlled drugs in a jockey’s system may well in some way impair the judgment of a rider in control of a horse travelling at fast speeds surrounded by other horses. Therefore, the use of controlled drugs by jockeys could place at risk the horses, other jockeys and observers involved in a race. She concluded that safety is a sufficiently important purpose to justify some curtailment of s 21 rights and that the regime imposed here of random testing was reasonable.
[7] In the High Court all counsel assumed NZBORA applied, but differed as to whether the issues should be approached via s 3 first or via ss 4, 5 and 6. Given that position of counsel, understandably, Andrews J essentially adopted the common main premise of the argument for Ms Cropp, namely that the requirement to give random urine samples is a curtailment of her fundamental common law freedoms or rights and also the right secured by s 21 of NZBORA which provides:

21 Unreasonable search and seizure

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

[8] In this Court the appellant also relied upon the right to be free from the risk of self-incrimination, as recognised in the decision of Randerson J in A v Auckland District Law Society.
[9] In this Court counsel for the second respondent filed submissions which brought to the foreground whether Ms Cropp had consented to give bodily samples. That issue was “a vexed issue” before Andrews J. But she preferred to assess whether the rule was ultra vires via a reasonableness enquiry under s 5. We were attracted to moving that issue forward in analysis to be part of the preliminary examination of the nature of the rights said to be being impugned.

The nature and scope of the fundamental freedoms or rights relied upon by the jockey

[10] The first question in these sort of cases is to determine the nature and scope of any rights said to be infringed, R v Hansen [2007] 3 NZLR 1 (SC).
[11] Horse racing can be viewed both as a sport and as an industry in New Zealand. Either way it requires the association of owners, trainers and officials. It is a dangerous activity for participants and anyone standing nearby.
[12] There are many sporting codes and industries organised; as clubs or companies, where the participants submit to medical examinations including random tests. These include athletics, cycling, football, drivers of public transport vehicles, airline pilots, and operators of dangerous equipment.
[13] The common law protects personal integrity by the torts of trespass to the person, see Morris v Beardmore [1981] AC 446 (HL). The tort of privacy ultimately also appeals to the value of the right of a person to be free from unwanted intrusions. These torts depend on the conduct complained of being against the will of the person affected. So if a person consents, there is no tort, there is no breach of common law freedoms.
[14] Counsel for the appellant agreed that were Ms Cropp riding in a race under the rules of a club, no common law action could arise. She would have submitted to the rules of racing of the club as a condition of her participation, and so be bound to provide bodily samples.
[15] We posed to counsel of the appellant the question: why should it make any difference that the rules of racing have a statutory quality, rather than being rules of racing of a club? Counsel for the appellant submits that because the racing rule is statutory, whether Ms Cropp consented is irrelevant. If the rule is ultra vires, there is no offence for breach of it.
[16] This argument misses the point. The argument for the rule being ultra vires is that because it breaches fundamental freedoms, it has to be empowered by a specific statutory provision. However, breach of the common law fundamental freedoms depends upon the absence of consent. Therefore the presence of consent is relevant. Likewise under NZBORA it is implicit in s 21 that the statute is addressing search or seizure without consent. Similarly, at common law and under NZBORA the right to avoid self-incrimination presupposes an unwillingness to provide information. In short, the appellant’s case depends, and has always depended, on the proposition that she has not consented at any time to random drug testing.

Did Ms Cropp consent to random drug testing?

[17] Counsel for the appellant also submitted that although in fact she did not refuse to provide a sample, she was being placed in a position where she had to submit to the procedure. So it was tantamount to compulsion. To refuse a sample could have resulted in loss of her licence to ride. (The racing rules provide for the licensing of jockeys.) Counsel submitted that her agreement to provide the sample was not a waiver, as she did not know her rights. He relied upon Police v Kohler [1993] 3 NZLR 129 (CA) and R v Anderson (1997) 4 HRNZ 165 (CA).
[18] Where an individual associates with others for a common purpose, quite naturally that individual’s freedom may be circumscribed. In co-operative events it is not normally possible for individuals to impose their own standards as the conditions of participation. The only sensible way to organise such events is to have a rule making body. Individuals can influence those rules but only through the rule making process.
[19] Here Ms Cropp is participating in an activity which requires the association of a large number of individuals. That activity is dangerous if participants do not act according to a set of rules. It would be irrational for a thoroughbred horse race to be conducted without a set of rules which address safety. It is elementary that the jockeys need to be experienced horse riders whose judgment can be relied upon by their fellow riders. Licensing jockeys is an obvious way to be sure standards are met.
[20] It is a condition of being licensed that a jockey consent to the taking of a body sample. Rule 307(4) provides:

No Jockey’s or Apprentice Jockey’s Licence or Amateur Rider’s Certificate shall be issued to any person unless the Chief Executive has previously received from that person his written consent to a sample of that person’s blood, breath, urine, saliva or sweat (or more than one thereof), being obtained from him by or under the supervision of a registered medical practitioner or by an authorised person if and whenever that person is required by a Stipendiary Steward or Racecourse Inspector to permit such a sample to be so obtained and such consent has not thereafter been withdrawn.

[21] Rule 528(3) provides:

Every rider or stablehand who rides or presents himself to ride a horse at a racecourse or training centre under the control or jurisdiction of a registered Club shall thereby be deemed to have consented to a sample of that person’s blood, breath, urine, saliva or sweat (or more than one thereof), being obtained from him by or under the supervision of a Registered Medical Practitioner or by an authorised person if and whenever that person is required by a Stipendiary Steward or Racecourse Inspector to permit such a sample to be so obtained.

[22] The use of the word “deemed” in r 528 is unnecessary at least from the perspective of common law and NZBORA, though maybe not from a perspective of medical ethics.
[23] The appellant’s counsel submitted that the consents being addressed in those two rules cannot be a genuine consent. They submitted:

A genuine consent can only occur in circumstances where a jockey is fully informed of the lack of authority a racecourse inspector had to request a body sample for drug testing purposes but even so the jockey was nonetheless willing to provide a sample. Only in that factual scenario could consent have any legal impact on fundamental constitutional rights.

[24] This passage demonstrates, from beginning to end, that the appellant’s argument presumes that without full consent and approval by an individual, a request for a body sample is a breach of fundamental constitutional rights. The flaw in that argument is that co-operative human activity has never depended, and could never depend, on a precondition that everybody who participates agrees completely with all the rules at all times. Individuals inevitably compromise their own personal views whenever they associate with other persons in a common endeavour. Horse racing could not be conducted, let alone safely, if everybody involved reserved the right personally to agree with every rule, or to have the right to negotiate a rule for him or herself, yet, nonetheless, insisted on the right to participate in the race. In the real world individuals submit to the rules, when they voluntarily associate in an activity governed by rules. That submission is the consent.
[25] There is a fundamental freedom to associate, at common law and by s 17 of the NZBORA. There may be circumstances where individuals are prevented from joining in co-operative events by discriminatory rules and those prohibitions may well raise a breach of that freedom. Similarly, breach may arise if persons are compelled to associate, such as to join a union, contrary to their conscience or political opinions. This is not one of those cases. Ms Cropp is in no different position than a commercial pilot of passenger planes. Such people have to submit to medical tests, if they want to do that job.
[26] The factual circumstances in the case of A v Auckland District Law Society are far removed from the present case. In A v Auckland District Law Society the context was the regulatory environment controlling the professional conduct of an individual law practitioner, with his clients. The focus of concern in A v Auckland District Law Society was on a practitioner’s behaviour which was affecting his professional conduct. It is unusual for a legal practitioner to be subject to medical examination. As such, it is more suited to a rights analysis.
[27] In A v Auckland District Law Society, Randerson J followed R v B [1995] 2 NZLR 172 (CA). In that case the issue was whether a complainant of sexual misconduct could be obliged to undergo a medical examination at the request of her assailant. As noted the appellant also relied on Kohler and Anderson. They are not analogous. Kohler concerned the rights of a person acting as an individual exercising the freedom to travel on road. He was stopped and tested for excess alcohol. Anderson was the occupant of a car, stopped by the police, who searched it for drugs. All three cases were examining the rights of individuals, who are not participating in a co-operative endeavour. Their context fits more the model of individual conduct being constrained by the exercise of public power. As such, rights analysis applies.
[28] If the validity of rule 528 is approached on the basis that no fundamental freedoms are affected, then there can be no doubt that it was validly made. Section 29(2)(d) provides a general power for the making of rules for safety. Mr Ivory, for Ms Cropp, had to accept that unless he could persuade the Court that the required provision of urine tests was a fundamental invasion of Ms Cropp’s personal liberty and privacy there was simply no basis for challenging the validity of the rule. He had to acknowledge that random testing for use of drugs is a method used all around the world in similar situations as a means of preventing harm.
[29] For these reasons, and by a different route, we have come to the same conclusion as Andrews J. Rule 528 is valid. The appeal is dismissed. The respondents are entitled to costs of $6,000 plus usual disbursements.

Solicitors:
Gibson Sheat, Wellington, for Appellant.
Meredith Connell, Auckland, for Respondents.

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2007/423.html