Office of Liquor Gaming and Racing v Tabcorp Holdings Limited [2016] NSWLC 25

Local Court New South Wales

Medium Neutral Citation: Office of Liquor Gaming and Racing v Tabcorp Holdings Limited [2016] NSWLC 25 Hearing dates: 14,15 July 2016; 10 October 2016 Decision date: 16 December 2016 Jurisdiction: Criminal Before: McIntyre LCM Decision: All offences proven Catchwords: CRIMINAL PROCEEDINGS – offences relating to publishing gambling related advertising - gambling activity – credit – reward – inducement

STATUTORY INTERPRETATION – construction of Racing Administration Act and regulations – whether punitive or beneficial in nature Legislation Cited: Racing Administration Act 1998 Racing Administration Regulation 2012 Cases Cited: R v Lavender (2005) 222 CLR 67 Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35 Wallace v Walplan Pty Ltd (1985) 5 FCR 315 Waugh v Kippen (1986) 160 CLR 156 Category: Principal judgment Parties: Office of Liquor Gaming and Racing (prosecution) Tabcorp Holdings Limited (defendant) Representation: Counsel: Mr Gray (for the prosecution) Mr Lancaster (for the defendant)

Solicitors: Hunt and Hunt Solicitors (for the prosecution) Gadens Solicitors (for the defendant) File Number(s): 2015/340513, 2015/340520, 2015/340529

Judgment 1. The Office of Liquor Gaming and Racing (OLGR) brings prosecutions against Tabcorp Holdings Limited (Tabcorp) for the offences of publishing gambling related advertising that offers a credit voucher or reward as an inducement to participate, or to participate frequently in any gambling activities, including as an inducement to open a betting account, in contravention of subclause 12(1)(h) of the Racing Administration Regulation 2012 (NSW) (as it was then known) in force as at 27 and 28 August 2015. It is convenient to provide herein the entirety of the relevant clause. 12 Prohibitions on gambling-related advertising (1) A non-proprietary association or licensed wagering operator, or an employee or agent of a non-proprietary association or licensed wagering operator, must not publish any gambling advertising: (a) that encourages a breach of the law, or (b) that depicts children gambling, or (c) that is false, misleading or deceptive, or (d) that suggests that winning will be a definite outcome of participating in gambling activities, or (e) that suggests that participation in gambling activities is likely to improve a person's financial prospects, or (f) that promotes the consumption of alcohol while engaging in gambling activities, or (g) that is not published in accordance with decency, dignity and good taste and (in the case of a television commercial) in accordance with the Commercial Television Industry Code of Practice, registered by the Australian Communications and Media Authority, as in force at the time the gambling advertising is published, or (h) that offers any credit, voucher or reward as an inducement to participate, or to participate frequently, in any gambling activity (including as an inducement to open a betting account). Maximum penalty: 50 penalty units. (2) A non-proprietary association or licensed wagering operator, or an employee or agent of a non-proprietary association or licensed wagering operator, must not publish any gambling advertising in writing in a newspaper, magazine, poster or other printed form that does not contain the following: Think! About your choices Call Gambling Help 1800 858 858 www.gamblinghelp.nsw.gov.au Maximum penalty: 50 penalty units. (3) A person other than a non-proprietary association or licensed wagering operator, or an employee or agent of a non-proprietary association or licensed wagering operator, must not publish any advertising that does any of the things referred to in sub clause (1) (a)–(h). Maximum penalty: 50 penalty units. (4) Sub clause (3) does not apply if the advertising relates to a non-proprietary association or licensed wagering operator and the publication of the advertising was approved in writing by the non-proprietary association or licensed wagering operator or an employee or agent of the non-proprietary association or licensed wagering operator. (5) A non-proprietary association or licensed wagering operator, or an employee or agent of a non-proprietary association or licensed wagering operator, must not enter into or extend the duration of any contract or arrangement for the publication of gambling advertising that does not comply with this clause. Maximum penalty: 50 penalty units. 1. The prosecution is brought pursuant to section 35 of the Racing Administration Act 1998 (NSW) (as it was then known) as in force as at 27 and 28 August 2015. It is uncontested that the alleged breaches are invoked via subclause 12(3), on the basis that Tabcorp the defendant is not a non–proprietary association or licensed wagering operator as defined in the Act.