Thank you for your research to date on the two Quit Horsing Around Inc (‘QHA’) matters. I have reviewed your research and again met with Mr Black. I would appreciate you finalising your research on the matters to allow me to finalise my advice to QHA. This memorandum sets out further instructions and additional information about the matters to enable you to finalise your research.
MATTER 1 – HORSE MANAGEMENT
Mr Porter is 65 years old. He has worked in the Queensland thoroughbred racing industry for 50 years and has held a trainer’s licence for 40 years. He aims to retire in the next couple of years and is starting to wind back his operations at Tulpar Training (‘TT’). His success as a trainer has paid off. He has developed TT into a multimillion dollar property and is in a position to retire wealthy. He is in good health and divorced with no dependants.
Mr Porter was fined by Racing Queensland (and its predecessor) for breaching the racing rules concerning animal welfare because of his horse management at TT on three occasions in the previous five years. At the time of the last fine, Racing Queensland described him in the media as ‘an old school trainer’ who it has ‘now warned to keep pace with modern community expectations for racehorse welfare’. In response, he publicly criticised Racing Queensland as ‘apologists for racing to animal welfare activists that don’t understand the industry’. Racing Queensland took no action in relation to his response.
I am satisfied Mr Porter’s use of thermocautery at TT constitutes the offence of firing or blistering. Mr Porter has used thermocautery at TT six times since 12 December 2022. For your final research you do not need to establish the offence of firing or blistering, and can assume Mr Porter has committed the offence on the six occasions. However, you should consider whether Mr Porter committed any other offence or contravention in his use of thermocautery. You should also take into account that Mr Porter committed the firing or blistering offence on the six occasions when you finalise your research on any fine, imprisonment and bans that might be imposed on Mr Porter in respect of his horse management at TT. For these considerations, Mr Black referred me to the Australian Veterinary Association (‘AVA’) policy on thermocautery from July 2013 for expert opinion about its use.
Mr Porter has never obtained veterinary advice on his use of tongue tying, nor does he have Racing Queensland Steward approval for its use at TT. However, he is experienced with how to use tongue tying. He does not tie the device to the bit or bridle, and endeavours to keep the tongue in a usual position. He applies a tongue tie to each horse scheduled for training at TT on a particular day at approximately 6am on the day. He removes the device from each horse about four hours later after all horses have completed the day’s training. This means a horse might be tongue tied for up to one hour before its training commences and remain tongue tied for up to two hours after its training is completed, depending on what is its training and when its training fits in the schedule for the day. Horses are tongue tied on both light training days and days of high intensity training simulating races. These arrangements are both for Mr Porter’s convenience and because he believes horses should ‘get used to the discomfort and worry of a tongue tie’. Mr Black referred me to the Australian Veterinary Association (‘AVA’) policy on tongue tying from October 2018 for expert opinion about its use.
Mr Black does not require me to finalise my advice on Mr Porter’s possible non-compliance with the Biosecurity Act 2014 (Qld) (‘BA’) or local government animal control laws because QHA’s focus is on exposing cruelty to racehorses rather than on biosecurity or animal control issues. Mr Black also does not require me to finalise my advice on Mr Porter’s possible non-compliance with legislation and industry rules on racehorse traceability and slaughter reporting because QHA does not have evidence as to precisely what information is missing in his incomplete records of the horses passing through TT paddocks on the way to slaughter. For your final research you should not consider the BA, local government laws, traceability and slaughter reporting, or the incomplete records.
The TT paddocks Mr Porter uses to hold ex-racehorses on the way to slaughter were originally built to hold racehorses still in training, spelling or breeding. Accordingly, the paddocks have high quality horse fencing, shelters and watering facilities. The fencing, shelters and watering facilities are well maintained. The paddocks are spacious enough to allow at least 600 horses to move around, lie down, and take evasive action if bullied by another horse or threatened by the wild dogs known to sometimes harass horses in the Toowoomba region. The large number of horses held also protects the horses from wild dogs. Wild dogs have never attacked a horse at TT. The shelters are adequate to allow at least 600 horses protection from the elements. The watering facilities are based on a central perennial dam which is able to provide water for at least 600 horses.
The paddocks naturally have poor pasture. They are on poor soil and prone to drought impacts. This did not impact the racehorses still in training, spelling or breeding originally held in the paddocks because Mr Porter provided these valuable racehorses with additional feed to supplement the poor pasture. Mr Porter does not provide additional feed to the ex-racehorses held in the paddocks on the way to slaughter and they are totally reliant on pasture grazing. He believes providing additional feed to these ‘knacker’s horses’ would be ‘throwing good money after bad’. When the number of ex-racehorses held in the paddocks was only up to 200 at a time and each horse was kept for only up to one month, the horses did not lose too much condition before transfer to the abattoir because the pasture available was adequate and the time limited. Now that the number of horses has increased to about 600 at a time and each horse is held for many months, they have meagre pasture and are ending up in poor condition.
Precise detail of the condition of the ex-racehorses passing through TT paddocks on the way to slaughter is not available without access to them for full veterinary assessment. However in mid-April 2023 volunteer QHA vet, Dr Jane Herriot, observed 50 of the horses then in the paddocks from an adjacent road. She estimated the grade of each of the 50 horses according to the Carroll and Huntington Body Condition Scoring System. She graded 22 of the horses at ‘0’, nineteen at ‘1’, and nine at ‘2’. Some of the horses are likely to be affected by gastric ulceration because it is common in ex-racehorses. It is caused by low forage feeding regimes and stress whilst in training as racehorses. It causes a horse to have poor appetite and reduced nutrient absorption from food. The only veterinary treatment available for gastric ulceration is a prescribed medication. Mr Black accepts that Mr Porter medicating the affected horses would not be feasible. The best feeding regime for affected horses is foraging on pasture supplemented if necessary by hay. This is also the cheapest and most common way to feed any horses. Having observed the state of TT paddocks, Dr Herriot is of the opinion that whether or not a horse is affected by gastric ulceration would ‘make little difference to its poor condition because the pasture is inadequate regardless of whether a horse is affected or not’.
Mr Porter sends the horses in poorest condition or showing signs of any illness or injury to the abattoir as soon as possible, prioritising these over other horses. Although QHA members regularly check on the horses as best they can observe from the adjacent road, they have not reported any ill or injured horses or horse deaths in the paddocks. Mr Black does not require me to advise on Mr Porter’s arrangement for transport of horses to the abattoir, or whether it is appropriate to transport horses in poor condition, ill or injured because Mr Porter outsources the transport to a livestock trucking company. For your final research you should not consider any aspect of transport of horses to the abattoir.
I note your preliminary advice that Porter’s poor animal welfare might contravene the racing rules as conduct prejudicial to the image, interests, integrity, or welfare of racing. I consider this a secondary issue to the animal welfare itself. For your final research you should not consider any such contravention by Porter.
For your final research you should not consider duplicity of charges. You should consider alternative relevant offences and contraventions even if they arise out of the same facts. You also should also not consider the admissibility, credibility or reliability of QHA’s evidence. You should assume all the facts outlined in my previous memorandum and this further memorandum will be able to be established against Mr Porter.
MATTER 2 – USE OF RECORDINGS
The case of Farm Transparency International Ltd v New South Wales (2022) 403 ALR 1 is very interesting. In light of the case I am satisfied legislation relevant to matter 2 is constitutionally valid. For you final research you do not consider the constitutional validity of legislation relevant to matter 2.
QHA’s covert recordings of Mr Porter’s use of thermocautery and tongue tying are not of conversations. They are video and sound images of the actual use of the practices, including the distress of the horses.
Mr Porter’s adult daughter and her boyfriend, Judith and Drake, are willing to cooperate with QHA against Mr Porter because they are ‘horse lovers’ and believe Mr Porter’s care and management of horses at TT is deteriorating as his retirement approaches. QHA contacted them for the first time after it obtained the covert recordings of their conversations with Mr Porter. They were surprised when QHA told them it had the recordings because they did not believe the conversations were overheard, much less recorded. When told of the recordings, they assumed that Mr Porter’s stable hand, ‘old Mr Groom’, must have made the recordings because he was ‘nearly always pottering about the stable somewhere’ and ‘it was very rare for anyone else to be in the stables’. They were further surprised that Mr Groom would have made the recordings for QHA because he was ‘totally loyal to Porter’. Actually, Mr Groom was not the QHA representative that installed the video devices that made the recordings. In any event, Judith and Drake are agreeable to QHA using the covert recordings on its website and social media for any purpose, including advertising the protest.
The protest is mainly for QHA members. The members are committed to only undertaking lawful protest activities. Although the protest will also be open to the general public, QHA will specifically advertise it as ‘peaceful and lawful’. They will liaise with local police and hire security to ensure the protest does not overflow onto TT land or become unlawful.
FURTHER INSTRUCTIONS FOR YOUR MEMORANDUM OF ADVICE
Based on the original instructions and information provided in my previous memorandum as updated by the further instructions and additional information provided in this memorandum, please draft a memorandum of advice addressed to me in relation to QHA’s two matters. Please include clear and supported conclusions as to the legal position and also practical recommendations to assist QHA.
Your memorandum of advice should include full citations for all the legal authorities on which you rely. You should use footnotes. There is no need to include a bibliography. Please provide your full memorandum of advice to me by 11.59pm on Tuesday 30 May 2023. It should be no longer than 2000 words.
REFLECTION TASK
Choose two issues relating to legal research and/or legal writing that emerged from the general and/or individual feedback you received on your Assessment Item 2 – Research Task in LLH201 this semester.
Use the 4Rs framework of reflective practice to:
- describe the two issues raised by the feedback; and
- explain how you learned from and applied the feedback on the two issues when completing the memorandum of advice for your Assessment Item 3 – Research Paper.
