CITATION: Moore v TAB Limited [2004] NSWADT 163 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Cameron Moore RESPONDENT TAB Limited FILE NUMBER: 031145 HEARING DATES: 16/03/2004 SUBMISSIONS CLOSED: 03/16/2004 DATE OF DECISION: 08/06/2004 BEFORE: Conley J - Judicial Member; Greenhill K - Non Judicial Member; Cox R - Non Judicial Member APPLICATION: Age Discrimination - In work MATTER FOR DECISION: Principal matter Anti-Discrimination Act 1977 Commonwealth Electoral Act 1918 (Cth) Registered Clubs Act 1976 LEGISLATION CITED : Totalizator Act 1977 Totalizator Agency Board Privatisation Act 1997 Totalizator Amendment (Gambling Signage) Regulation 2001 Totalizator Amendment (Responsible Gambling) Regulation 2001 Cuncliffe v Commonwealth (1994) 182 CLR 272 CASES CITED: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA Purvis v State of New South Wales [2003] HCA 63; Waters v Public Transport Corporation (1991) 173 CLR APPLICANT REPRESENTATION: K Eastman, barrister RESPONDENT N Stevens, solicitor ORDERS: 1. The complaint is dismissed; 2. No order as to costs REASONS FOR DECISION Background to the Application 1 The facts of this matter are largely undisputed. The Respondent came into existence pursuant to the Totalizer Agency Board Privatisation Act 1997 which converted the Totalizer Agency Board from a statutory agency to a public company from 25 February 1998. 2 The Respondent has been granted an exclusive licence to conduct an off-course totalizer pursuant to section 14 of the Totalizer Act 1997. 3 The Respondent operates betting agencies under the terms of the licence. The Respondent is authorised under the terms of the licence to engage agents to operate those betting agencies. 4 The Respondent engages those agents on terms set out in a document described as an "Agency Deed". 5 The Respondent engaged Mr Kelvin Moore as an agent to operate the Respondent's agency located at 24A Old Northern Road, Baulkham Hills, NSW ("the Agency"). 6 The Respondent and Mr Kelvin Moore entered into an Agency Deed in respect of the operations of the Agency on 19 July 1991. 7 The Agency Deed provides that the relationship between the Respondent and the Agency operator is one of principal and agent. The Agent is required to comply with the terms of the Agency Deed. 8 The Respondent is empowered to confer, renew or extend an authorisation or qualification that is required for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation. 9 The terms of the Agency Deed include clause 7 which deals with the Agent's rights and duties in relation to employees. There is no minimum age proscribed for employees. 10 Before an agent can employ staff they must complete an "Agency Staff Record Card" and submit it to the TAB. The TAB must approve the person before they can commence employment in an agency. 11 On or about 9 February 2001, the Respondent issued the Operating Instruction "Employment of Staff In Agencies". 12 On or about October 2001 the Applicant sought employment with the Respondent. Authorisation or qualification for employment at the Agency was not conferred by the Respondent. 13 The Applicant claims that he was discriminated against on the ground of age by the Respondent when the Respondent failed to authorise his employment with a TAB agency. 14 At the relevant time the Applicant was 15 years old. 15 There is no dispute that the reason the Respondent did not confer authorisation for employment is solely the Applicant's age. 16 The Respondent relied upon "Operating Instruction Agencies 13" a direction given to TAB agents dated 9 February 2001. The Direction includes the following: - A person under the age of 18 years may not be employed by a TAB agent if that person works during Agency hours; and - A person under 18 years of age currently employed by one or more TAB agents cannot be employed by another Agent. That is, an Agent may not transfer an existing employee who is under the age of 18 years to another Agent. 17 On 28 November 2001 the Applicant lodged a complaint with the Anti-Discrimination Board. The matter was referred to the Administrative Decisions Tribunal (the Tribunal) on 28 October 2003. 18 It is not in dispute that the Respondent as a regulatory agency is a qualifying body within the meaning of section 49ZYG (1) of the Act. Nor is it in dispute that the Anti-discrimination Act applies to the Respondent in terms of its role of determining who may or may not be employed in an agency. Relevant provisions of the Anti-discrimination Act 1977 19 Section 49ZYG is the relevant provision of the Anti-discrimination Act 1977 which relevantly provides as follows: 49ZYG (1) Qualifying bodies (1)It is unlawful for an authority or body which is empowered to confer, renew or extend an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying onof a trade or the engaging in of an occupation to discriminate against a person on the ground of age: (a) by refusing or failing to confer, renew or extend the authorisation or qualification, or (b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or (c) by withdrawing the authorisation or qualification or varying the terms or conditions on which it is held. (2) This section does not prevent such an authority or body from imposing a reasonable and appropriate minimum age under which an authorisation or qualification will not be conferred. Applicant's Evidence 20 The Applicant relied upon the sworn statement of Mr Cameron Moore dated 28 January 2004, Mr Kelvin Moore dated 28 January 2004 and Mr Greg Moore undated. 21 Mr Kelvin Moore gave evidence that he is a TAB agent appointed by the TAB to operate agencies on its behalf. He is currently appointed to operate the Agency Baulkham Hills 184. He stated that he commenced as an agent on or about 25 March 1978. 22 He states that prior to commencing as an agent he worked in TAB agencies for approximately 6 years. He states that he commenced working for his mother at her agency in Terrigal 322 when he was 15 years old. 23 Mr Moore gives details of the range of tasks performed as an agent operating an Agency. 24 His statement gives evidence of the duties that would have been performed by Mr Cameron Moore had he been able to be employed. Initially he would have observed how the Agency operated. After 3 or 4 shifts he would have commenced training the Applicant as to how the machinery operated. After approximately 3 months of operating the betting terminal under his observation he states he would have felt confident to let the Applicant sell bets at the terminal without direct observation. 25 Mr Cameron Moore gave evidence that he approached his father in about May 2001 to see if he could work in the Agency. Mr Kelvin Moore advised that he would fill in an application form. A couple of months later his father advised that the TAB had changed its policy on employment and he would need to wait until he was 18 years old. 26 Mr Cameron Moore stated he was disappointed at not being able to work at the Agency because it was a family tradition and something he had always wanted to do. Respondent's Evidence 27 The Respondent relies upon the evidence of Graham Gorrie, Group Compliance Manager TAB Limited dated 25 February 2004 and Cathryn Garrigan, Wagering Compliance and Training Manager of TAB Limited dated 25 February 2004. 28 Mr Gorrie gave evidence that he is involved in the preparing of regulatory and compliance reports for the Regulatory and Compliance Committee of TAB Limited (the Committee). 29 He states that on or around November 1999 the New South Wales Government passed the Gambling Legislation Amendment (Responsible Gambling Bill) which amended a number of Acts so as to further provide for responsible conduct of gambling in licensed premises, registered clubs and other places and to minimise the harm associated with the misuse of gambling activities. 30 Mr Gorrie states that the Bill was the catalyst for the Totalizator Amendment (Responsible Gambling) Regulation 2001 and Totalizator Amendment (Gambling Signage) Regulation 2001which were passed in February 2001 and November 2001 respectively. 31 Both Regulations prohibit gambling advertising that depicts children gambling. 32 Mr Gorrie stated that an issue involving credit gambling by a minor employed as an agents relief in the Glebe Agency was raised at the Committee meeting of 15 August 2000. He states that as a consequence it was resolved at the meeting to seek legal advice on the issue of imposing a minimum age of 18 for agents relief and to consider extending the restriction to prohibit minors from operating selling terminals. 33 A memo from Peter Paine, Group Audit Manager, to Peter Staunton, Sales and Marketing Manager, dated 2 August 2000 entitled "Minors controlling TAB operations" noted the (then) recent incident involving credit betting by a minor. 34 The memo notes the "Current Situation" whereby a minor can be an "Agents Relief". This allows a minor to operate an Agency by themselves or supervising other staff. Agent's Relief have access to outlet keys, safe combination and agency bank account. 35 The memo also notes that minors may be a payer/seller at an agency. This allows a minor to operate a betting terminal under the supervision of an Agent or Agent's Relief. 36 A phone TAB operator may also be a minor. 37 The memo notes "Risks". Identified risks include the fact that the use of minors could be viewed by the Public as a lack of commitment to Responsible Gambling programs. There is a risk of an unprofessional service being provided as minors are more likely to lack maturity to deal with difficult customers. The memo notes that there is likely to be adverse press if minors are involved in crediting betting, fraud or hold up. 38 The memo goes on to note that The Totalizator Act 1997 prohibits accepting a bet from a minor and that it therefore seems contradictory to have minors in charge of selling a product which they are prohibited from buying. There is also a question of whether the minor will make appropriate decisions prohibiting other minors gambling. The Memo further notes difficulties recovering debts in the event of a large cash shortage either from fraud (such as the instance of credit betting where it may be difficult to recover the $ 56 000.00 loss) 39 The memo notes that in the past there has been use of minors as payer/sellers without major issues arising, however notes there has however been a shift in public awareness of responsible gambling. It recommends that the TAB needs to ensure policies are in line with this shift. 40 A copy of the minutes of the Committee meeting of 10 November 2000 are provided and the Committee recommends that a proposal to the Board that Agents not employ persons under 18. Applicant's Submissions 41 The Applicant submits that the Respondent has directly discriminated against the Applicant on the ground of age. Firstly the Applicant was treated 'less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator would treat a person who is not of that age or age group". The Applicant submits that the Respondent's conduct in denying the Applicant employment constituted less favourable treatment. A notional comparator who was over the age of 18 would not have been denied authorisation based upon age alone. 42 Secondly, the Applicant's age was the operative reason for the less favourable treatment. 43 The Applicant notes that the Respondent relies upon the defence found in section 49ZYG(2): (2) This section does not prevent such an authority or body from imposing a reasonable and appropriate minimum age under which an authorisation or qualification will not be conferred. 44 The issue is whether the Respondent's prohibition on employing persons under 18 years of age is "reasonable and appropriate". The term "reasonable and appropriate" is not defined in the Act. 45 The Applicant submits that in construing the meaning of these words the Tribunal must have regard to the following principles of statutory construction: - Beneficial or remedial legislation must be construed broadly and consequently exceptions and defences should be construed narrowly; - If beneficial legislation is to be construed to deny or limit a right then the language of the Act must be clear; - The term conveys proportionality that is whether the burden or restriction is disproportionate to the objective 46 The Act has the objective and purpose of protecting human rights. The Applicant submits that the courts have construed such legislation broadly to give effect to the objectives of the legislation. The Applicant refers to the judgements of Mason CJ and Gaudron J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 where they state: However, the principle that requires that the particular provisions of the Act must be read in light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation, the courts have a special responsibility to take account of and give effect to the statutory purpose. 47 The Applicant also refers to the judgement of McHugh and Kirby JJ in Purvis v State of New South Wales [2003] HCA 63 at [45]. The remedial nature of the Act requires it to be given a broad and beneficial construction. In IW V City of Perth, Kirby J said: "[P]rotective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation" 48 Thus it is submitted exceptions and defences are construed narrowly. 49 The Applicant also submits that if the Act is to be limited or restricted in any way so as to deny a legal right then the language must be clear. See Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA. 50 The Applicant submits that the term "reasonable and appropriate" conveys the concept of proportionality and refers to Cuncliffe v Commonwealth (1994) 182 CLR 272 particularly the judgements of Mason CJ at 300 and Brennan J at 324. Mason CJ states that, "In determining whether a particular burden or restriction is reasonably appropriate and adapted, it is relevant to ascertain whether the burden or restriction is disproportionate to the attainment of that objective". 51 The Applicant submits that having regard to these principles that the Respondent has failed to establish a blanket prohibition on employment of persons under 18 is reasonable and appropriate in the circumstances. 52 The Applicant submits the minimum age of 18 is not reasonable and appropriate for the following reasons: The rule operates as a blanket prohibition, it does not provide for exceptions or regard to relevant circumstances The rationale for the rule is not based upon sound policy considerations There has been no consideration of the nature of the work and the manner in which the work is to be performed by the young person – whether there is appropriate supervision and training for the young employee There was no consultation with the persons who may be affected by the prohibition. There is no legislative requirement requiring such a restriction Where a young persons rights are to be affected there is usually a clear statutory provision. The relevant industrial award makes provision for wage rates for young people There is no evidence that the prohibition is in the best interests of the child or the young person would be placed in a position of danger or exploitation It was open to the Respondent to apply for an exemption Respondent's Submissions 53 The Respondent submitted that it did not impose a blanket prohibition on all persons under 18 years of age. Agents can employ juniors, just not during trading hours. Furthermore the provisions apply only to new employees not existing employees. 54 In summary the reasons for the imposition of the minimum age was the public policy shift in relation to responsible gambling and problem gambling in the context of the state government's policy and reforms. The minimum age was set against a background of increased regulatory reform trying to address responsible gambling and problem gambling and growing community awareness and concern. 55 The triggers for the TAB taking action were an incident involving a person under 18 employed as Agent's Relief in the Glebe agency placing bets on credit and another minor involved in an armed hold up at the Pagewood agency. 56 In relation to the Applicant he made an application for qualification to be employed as a "payer/seller", he did not seek any other class of employment such as cleaner. It is submitted that the evidence discloses that the payer/seller is the "front line" in terms of duties of an agency. A payer/seller can handle thousands of dollars in wagers. 57 It was submitted that there has been a shift in public awareness in relation to gambling and consequent community expectations have changed to expect responsible gambling. 58 The Respondent submits that there is a clear discretion in the Act to allow the setting of a minimum age having regard to the circumstances of the activity engaged in. The activities engaged in by the Agencies are wagering activities with the public at large. The minimum age of 18 years is based upon sound policy considerations. Persons under 18 years of age cannot place or buy a bet and cannot cash in a ticket. It is therefore inappropriate against this background that persons under 18 years should be accept or sell a bet. Findings and Decision 59 The issue to be determined is wether the Respondent discriminated against the Applicant on the ground of age by refusing him qualification for employment by virtue of his age. 60 There is no dispute that the refusal to grant an authority was because of the Applicant's age, that is he was under 18 years of age. The Respondent relies upon the exemption in section 49ZYG (2). Section 109 of the Act provides that where a provision of the Act provides an exception to conduct which is otherwise unlawful under the Act the onus of proving the exception lies upon the Respondent. 61 The Applicant submits that the Respondent's action in setting a minimum age of 18 years of age for employment in an agency during business hours is not reasonable and appropriate within the meaning of sub-section 2. 62 The Applicant submits that the Respondent has set a blanket and complete prohibition on persons under 18 years of age being employed in an Agency and therefore this is not reasonable and appropriate. We do not accept this. Clearly the legislative intention when providing that an authority or body may impose a "reasonable and appropriate" "minimum age" is that there will be a blanket application whatever that minimum age. The issue remains is the minimum age imposed by the Respondent "reasonable and appropriate" in the circumstances. 63 The Applicant submits that where a young persons rights are to be restricted there is generally a clear statutory provision, for example the Totalizer Act 1997 which prohibits bets being made by minors, section 93 (1) of the Commonwealth Electoral Act 1918 (Cth) which prescribes 18 as the age a person becomes eligible to vote, and sections 51-53 of the Registered Clubs Act 1976 which imposes restrictions upon the sale and consumption of alcohol in the presence of a person under 18 years of age in certain licensed premises. 64 While human rights or beneficial legislation must be construed broadly and defences narrowly it is clear that section 49ZYG(2) provides a clear statutory provision for an authority or body imposing a "reasonable and appropriate" minimum age. We do note however that the burden of establishing the defence lies upon the Respondent. Thus the issue remains is the minimum age limit "reasonable and appropriate" in the circumstances. 65 The Applicant also submits that there is no legislative requirement requiring such a restriction. We do not accept that this is adequate reason why the minimum age imposed of 18 is not reasonable and appropriate. If there were a legislative requirement setting a minimum age then there would have been no need to set a minimum age in pursuant to the power conferred by section 49ZYG (2). This approach again begs the question that where there is a power to provide for a minimum age, whether the minimum age imposed is "reasonable and appropriate" in the circumstances. 66 The Applicant submits that there is provision in the Award for wage rates for young people. We note that in the past there had been persons under 18 years of age employed in agencies during business hours. The current Operating guidelines do not apply to pre-existing employees. 67 The Applicant argues that the rationale and reason for the minimum age set by the Respondent is not based upon sound policy considerations; there was no consultation with the persons who may be affected by the prohibition and there has been no consideration of the work and the manner in which it is to be performed, for example whether there is appropriate supervision and training. 68 The Respondent argues that there is an appropriate rationale. The growing community awareness and government initiatives for responsible gambling are behind the policy. The Respondent submits that persons under the age of 18 years can work in an agency, but not during business hours. The Respondent states that agencies are in the business of wagering with the Public at large, they take and pay out on bets. In essence the Respondent submits that in circumstances where a young person can neither place, nor collect a bet, nor have a bet placed by another person on their behalf then it is anomalous and inappropriate that they should be able to take bets. 69 There is no dispute that this matter was dealt with in a hurry with no public consultation. The Respondent has also not provided evidence of risk to a young person in a workplace where they take bets. The Respondent concedes in its memo of 2 August 2000 that there is an impact upon TAB Agents. The benefit of allowing Agents to use minors allows them to lower labour costs and also lower labour costs for the training of future Agent's Reliefs. 70 We find that there is a clear power for the Respondent to set a minimum age for employment in an agency. The objectives in setting the minimum age of 18 for employment in agencies during business hours include providing a service to the public at large in keeping with public expectations of responsible gambling; to provide a service which is not anomalous with the legislative framework; to avoid the risk of difficulties with customers and minors trying to place bets; and to minimise financial losses. There are identifiable burdens as a consequence of such a policy. Young persons will have their rights restricted as they will not be able to work in an agency until 18 years of age. Agents will not be able to have the benefit of reduced labour costs by virtue of using minors. Agents will not be able to use family members until they reach the age of 18 years of age. 71 Despite the failings identified in relation to the lack of public consultation we accept that the burden of the restriction is not disproportionate to the objective. Allowing persons under the age of 18 to sell bets and pay out winnings on a bet is clearly anomalous with the spirit of all the responsible gambling legislation and the mischief which it is trying to avoid; that is the involvement of minors in gambling and the aim of reducing problem gambling in the wider community amongst legal gamblers. We accept that it is anomalous within the context of promoting responsible gambling as a whole. 72 In these circumstances we accept that the minimum age of 18 years is reasonable and appropriate. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.