Lottoland (Australia) Pty Ltd v Minister for Racing, Gaming and Licensing (No 2) - [2022] NTSC 66

CITATION:Lottoland (Australia) Pty Ltd v Minister for Racing, Gaming and Licensing & Anor (No 2) [2022] NTSC 66
PARTIES:LOTTOLAND (AUSTRALIA) PTY LTD

v
MINISTER FOR RACING, GAMING AND LICENSING
and
NORTHERN TERRITORY RACING COMMISSION

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2020-03129-SC; 2021-00179-SC
DELIVERED:  18 August 2022
JUDGMENT OF:  Southwood J
CATCHWORDS:

GAMING AND LICENSING – Jackpot betting – Whether the imposition of additional conditions on sports bookmaker licenses under s 92 of the Racing and Betting Act 1983 (NT) is ultra vires – Section 24(3) of the Racing and Betting Act 1983 (NT) implicitly grants the second defendant power to impose conditions on licences – The power conferred under s 92 of the Racing and Betting Act 1983 (NT) is not confined to the imposition of conditions relating to “the structure and assets” of the plaintiff – The additional conditions do not preclude the plaintiff from offering or accepting bets on declared sporting events including stock market indices – The additional conditions do not destroy the plaintiff’s rights under the license
Statutory construction – Whether the first additional condition possesses reasonable certainty of meaning and application – Meaning of “reasonable person” – Meaning of “lottery” – Meaning of “constitutes or approximates” – The second limb of the first condition ((a)(ii)) contemplates the plaintiff’s state of mind – ((a)(ii)) is vague and not reasonably certain – Held ((a)(ii)) is ultra vires and invalid
GAMING AND LICENSING – Jackpot betting – Whether the first defendant’s direction to the second defendant to impose additional conditions on sports bookmaker licenses is ultra vires – Section 19 of the Racing and Betting Act 1983 (NT) – Whether the first defendant’s direction was made under the dictation of the Chief Minister – Whether the direction was made for the improper purpose of suppressing lawful competition – Protecting lottery operators and newsagents from competitors gaining an unfair advantage by mimicking their products is not anti-competitive – Direction valid
CONSTITUTIONAL LAW – Whether the direction contravened s 49 of the Northern Territory (Self-Government) Act 1978 (Cth) – Whether the plaintiff engaged in trade between the Northern Territory and New South Wales – Plaintiff engaged in intraterritory trade – Direction constitutionally valid
PROCEDURAL FAIRNESS – Decision maker exercising discretionary power – Whether the defendants genuinely considered the material submissions made by the plaintiff – Procedural fairness accorded
Gaming and Control Act 1993 (NT) s 3
Interactive Gambling Act 2001 (Cth) s 15
Interactive Gambling Amendment (Lottery Betting) Act 2018 (Cth)
Northern Territory (Self-Government) Act 1978 (Cth) s 49
Racing and Betting Act 1983 (NT) s 3A, s 4, s 17, s 18, s 19, s 24, s 70, s 80, s 83, s 89, s 90, s 91, s 92, s 102, s 102B, s 109B, s 109C, s 109D, s 109E, s 109G, s 109H, s 148
Racing and Betting Amendment Act 2004 (NT) s 12
A v Corruption and Crime Commissioner [2013] WASCA 288, Anthony Hordern and Sons Ltd and Ors v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, Australian Workers’ Union v Registered Organisations Commissioner (No 9) [2019] FCA 1671, Betfair Pty Ltd v Racing NSW (2012) 249 CLR 217, Cann's Pty. Ltd. v The Commonwealth (1946) 71 CLR 210, Comcare v Lilley (2013) 216 FCR 214, Ex parte Yuco Pty Ltd [1978] Qd R 235, Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149, Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33, Gerner v Victoria [2020] HCA 48, Hunter v The Minister for Planning [2012] WASC 247, King Gee Clothing Co. Pty. Ltd. v The Commonwealth (1945) 71 CLR 184, Lottoland Australia Pty Ltd v Australian Communications and Media Authority [2019] NSWSC 1041, Lukin Enterprises Pty Ltd v Director of Fisheries (1986) 42 SASR 463, Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, National Aboriginal and Torres Strait Islander Legal Services Secretariat Ltd v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 155, Northern Land Council v Quall (2020) 271 CLR 394, Pyneboard Pty Ltd and Ors v Trade Practices Commission and Anor (1982) 57 FLR 368, Rathborne v Abel (1964) 38 ALJR 293, Roads Corporation v Dacakis [1995] 2 VR 508, R v Anderson; Ex parte IPEC-Air Pty Ltd (1965) 113 CLR 177, R v Senge [2021] NTSC 80, Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59, Victoria v Sportsbet Pty Ltd (2012) 207 FCR 8, referred to
REPRESENTATION:
Counsel:
Plaintiff:NC Hutley SC
with him SH Hartford Davis and DJ Reynolds

First and Second Defendants: WJN Wells QC
with him C Jacobi

Solicitors:
Plaintiff:Addisons
First and Second Defendants:     Solicitor for the Northern Territory
Judgment category classification:    B
Judgment ID Number:  Sou2205
Number of pages:  176

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Lottoland (Australia) Pty Ltd v Minister for Racing, Gaming and Licensing & Anor (No 2) [2022] NTSC 66
No. 2020-03129-SC; 2021-00179-SC

BETWEEN:
LOTTOLAND (AUSTRALIA) PTY LTD

Plaintiff
AND:
MINISTER FOR RACING, GAMING AND LICENSING

First Defendant
AND:
NORTHERN TERRITORY RACING COMMISSION

Second Defendant

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 18 August 2022)
Introduction

On 22 December 2015, the second defendant granted the plaintiff a sports bookmaker licence under s 90 of the Racing and Betting Act 1983 (NT). The licence permitted the plaintiff to conduct a sports bookmaker business in the Northern Territory at specified premises in Darwin. The plaintiff’s original licence was to expire on 30 June 2020, and on 18 June 2020, the second defendant renewed the plaintiff’s licence. The plaintiff’s current licence expires in 2025.
Between December 2015 and September 2018, the plaintiff offered betting products to consumers that allowed bets to be placed on the outcomes of domestic and foreign lotteries. However, in 2018 the Australian Government introduced legislation[1] which prohibited betting on the outcome of a contingency that may or may not happen in the course of the conduct of a lottery, including a Keno draw. While the Commonwealth Act was enacted on 29 June 2018, its commencement was delayed for six months after assent to allow gambling operators and consumers to adjust their business and betting practices respectively. The Commonwealth Act commenced on 9 January 2019.
After the commencement of the Commonwealth Act, the plaintiff started marketing new products which enabled consumers to place bets on the outcome of stock market indices of another country. On 23 August 2018, the plaintiff wrote to the second defendant requesting approval of its new products. On 13 September 2018, the second defendant sent a letter to the plaintiff stating that as stock market indices were an approved sporting event under the Racing and Betting Act no further approval was required.
After the plaintiff started offering its new products to customers, a number of concerns were raised about the plaintiff’s products by various people and entities including: (i) Mr Chris Gibson, (ii) Senator Mitch Fifield MP, Commonwealth Minister for Communications and the Arts, (iii) a competitor, Tabcorp Holdings Limited, (iv) the Honourable Yvette D’Ath MP, the Attorney-General and Minister for Justice for Queensland, and (v) the Australian Lottery and Newsagents Association. The expression of these concerns culminated in the first defendant directing the second defendant on 29 July 2020 under s 19 of the Racing and Betting Act to impose the following conditions on all sports bookmakers and betting exchange licensees, by no later than 31 October 2020.
First
(a)     Except as set out in paragraph (b), the Sports Bookmaker and Betting Exchange Operator must not, in or through any format or media:
(i)describe, depict, or market its bet types in a manner that would lead a reasonable person to infer that the bet type constitutes or approximates a lottery; or
(ii)take any action to cause, or intended to cause, a person to believe that a bet type constitutes or approximates a lottery.
(b)     Condition (a) does not apply to:
(i)a 'mystery bet' on races or sporting matches or competitions where the combination relates to direct outcomes of identified races or sporting matches or competitions; or
(ii)a 'fantasy sport' bet where the contingencies arise from the same identified type of sporting match or competition; or
(iii)a description, depiction or form of marketing approved by the Commission in writing for the purpose of this licence condition.
Second
(a)     Except as set out in paragraph (b), the Sports Bookmaker and Betting Exchange Operator must not offer or accept a bet which is based on a combination of contingencies each of which form part of a sporting event or events (as defined in the Act) where:
(i)the selection of those contingencies:
(A)occurs in a way that does not allow the customer to make a specific evaluation of, or an informed decision about, the contingencies for the purpose of placing the specific bet; or
(B)arises from the extraction, matching or adaptation of data by the Sports Bookmaker from data sets generated by the relevant event or events; or
(C)involves a material element of chance or produces a jackpot; or
(ii)the bet relates to a proxy or surrogate for a part of the sporting event rather than relating directly to that part of the sporting event.
(b)     Condition (a) does not apply to:
(i)a 'mystery bet' on races or sporting matches or competitions where the combination relates to direct outcomes of identified races or sporting matches or competitions; or
(ii)a 'fantasy sport' bet where the contingencies arise from the same identified type of sporting match or competition; or
(iii)a bet type approved by the Commission in writing for the purpose of this licence condition.
Accordingly, on 3 August 2020, under s 92(2) of the Racing and Betting Act, the second defendant resolved to impose the two new licence conditions on all sports bookmakers and betting exchange operators licensed in the Northern Territory, and on 7 August 2020, the second defendant notified the plaintiff of the new licence conditions.
The plaintiff is opposed to the imposition of the two new conditions, and on 14 September 2020, the plaintiff commenced this proceeding by originating motion. The originating motion has been amended on two occasions. The plaintiff now seeks the relief claimed in the Further Amended Originating Motion filed on 4 November 2020, as follows:
(1)An interlocutory injunction, to remain in force until the final resolution of the proceedings, restraining the defendants from:
(a) varying the licence, or the conditions to the licence, issued to the plaintiff on 18 June 2020 to conduct the business of a sports bookmaker under Part IV, Division 2 of the Racing and Betting Act 1983 (NT) so as to include any or all of the two conditions annexed to the second defendant’s letter to the plaintiff on 7 August 2020 (the First Condition and the Second Condition are together described as the Conditions); and
(b) otherwise enforcing or giving effect to the Conditions as against the plaintiff.
(2)An injunction permanently restraining the defendants from taking either of the steps referred to in paragraphs (a) and (b) of prayer 1.
(3)An order in the nature of prohibition, prohibiting the defendants from taking the steps referred to in paragraphs (a) and (b) of prayer 1.
(4)An order in the nature of certiorari quashing the first defendant’s decision of 29 July 2020 to direct the second defendant to vary the plaintiff’s licence so as to include the Conditions (the Direction).
(5)An order in the nature of certiorari quashing the second defendant’s decision of 7 August 2020 to vary the plaintiff’s licence so as to include the Conditions (the Decision).
The pleaded grounds of the plaintiff’s application are as follows:
(1)The Conditions exceed the power of the second defendant under s 92(2) of the Racing and Betting Act because, on its proper construction, the power conferred by s 92 is subject to the limitation expressed in s 90(5), such that s 92(2) may only be used to impose additional conditions that relate to “the structure and assets” of the plaintiff.
(1A)Further or alternatively, the First Condition is invalid because s 92 of the Racing and Betting Act on its proper construction authorises only conditions characterised by reasonable certainty of meaning and application, and the First Condition does not possess that certainty.
(2)Further or alternatively, the Conditions exceed the power of the second defendant under s 92 of the Racing and Betting Act because it is unlawful for the second defendant to use the power to impose or vary licence conditions in such a way as to effectively destroy the rights created by the licence.
(3)Further or alternatively, the Conditions exceed the power of the second defendant under s 92 of the Racing and Betting Act insofar as they seek to limit the permission granted by the licence by excluding kinds or types of “sporting event”.
(3A)The Direction is invalid because it exceeds the power in s 19 of the Racing and Betting Act, in that it precluded the [second defendant] from giving genuine consideration to the representations of the plaintiff and/or dictated the outcome of that consideration, contrary to the requirement in s 92(5) of the Racing and Betting Act and the objects in s 17(2) of the Act.
(3B)The Direction is invalid because the first defendant acted under the dictation of the Chief Minister in making it.
(4)The Direction is invalid because it was made for an improper purpose, and the Decision is invalid in turn because it was made in compliance with the Direction. The Direction was made for the purpose of suppressing lawful competition, i.e. to promote and prefer the business of newsagents to the detriment of sports bookmakers perceived to be encroaching on that business.
(4A)The Direction is invalid because it contravened s 49 of the Northern Territory (Self-Government) Act 1978 (Cth).
(5)The Direction is invalid because the first defendant failed to afford procedural fairness to the plaintiff before making the Direction, and the Decision is invalid in turn because it was made in compliance with the Direction.
(5A)The Direction and/or the Decision is invalid because the defendants failed to consider material submissions made by the plaintiff.
The plaintiff no longer presses grounds 3 and 5.
The grounds are comprised of four categories: grounds 1, 1A and 2 about the conditions; grounds 3A, 3B and 4 about the Direction; ground 4A, which is a constitutional ground involving s 49 of the Northern Territory (Self-Government) Act; and ground 5A about procedural fairness.
The Racing and Betting Act 1983 (NT)
The Racing and Betting Act provides for the licencing, registration and regulation of various bookmakers in the Northern Territory who may conduct the business of offering and accepting bets, including doing so online from specified premises in the Northern Territory. The objects of the Act are contained in s 3A of the Act which states:
The objects of the Act are:
(a)     to promote probity and integrity in racing and betting in the Territory; and
(b)     to maintain the probity and integrity of persons engaged in racing and betting in the Territory; and
(c)     to promote fairness, integrity and efficiency in the operations of persons engaged in racing and betting in the Territory; and
(d)     to reduce any adverse social impact of betting.
Section 4 of the Racing and Betting Act defines betting as follows:
betting includes the action, behaviour, conduct or performance of a person who, whether on one or more than one occasion:
(a)     makes or receives a bet or wager; or
(b)     pays, receives, negotiates or settles a bet or wager; or
(c)     offers, or agrees or otherwise negotiates to bet or wager or to pay, receive or settle, a bet or wager,
for himself or on behalf of another person, but does not include betting under the Totalisator Licensing and Regulation Act 2000.
Section 4 of the Act also contains the definitions of ‘sporting event’ and ‘sports bookmaker’ which are as follows:
sporting event means an event or contingency, whether or not of a sporting nature, declared by the Commission under subsection (2) to be a sporting event.
sporting bookmaker means a person to whom a licence is granted under section 90 and, where the person is a corporation, includes the nominee whose name is endorsed on the licence document as required by section 90(5A).
Subsection 4(2) states:
For the purposes of the definition of sporting event in subsection (1), the Commission may declare an event or contingency to be a sporting event.
There is no express provision in the Racing and Betting Act which requires the business of a sporting bookmaker to be confined to bets on sporting events. However, condition 6 of the conditions endorsed on the plaintiff’s current licence specifies the bets that a sports bookmaker may accept. The condition states:
The Sports Bookmaker may accept:
· novelty bets, being bets that comply with the Commission’s guidelines; and
· bets on approved sporting events.
Part II of the Racing and Betting Act establishes the Northern Territory Racing Commission (the second defendant). Part IIA of the Act, which includes s 17 to s 22, sets out the powers and functions of the second defendant. Section 17 deals with the functions of the second defendant. The section states:
(1) The functions of the Commission are to:
(a)investigate and make to the Minister such recommendations as it thinks fit with respect to such matters relating to the administration or operation of this Act, as are referred to it by the Minister for investigation or as it from time to time thinks fit; and
(b)undertake research and investigations into matters relating to horse-racing, trotting and greyhound-racing and the breeding of horses for horse-racing and trotting and greyhounds for greyhound-racing, including the financial security of the organisations and persons whose subsistence or livelihood is derived from or directly connected with horse-racing, trotting or greyhound-racing; and
(c)control, supervise, regulate and develop trotting and greyhound-racing; and
(d)grant licences and permits in accordance with this Act; and
(e)define the duties and functions of a person employed as a key employee; and
(f)allot race days for such period or periods as it thinks fit to registered clubs; and
(g)prosecute persons for offences against this Act; and
(h)carry out such other functions as are conferred on it by or under this Act or any other law of the Territory.
(2) In performing its functions, the Commission must have regard to the following principles:
(a)minimum regulatory intervention by government;
(b)maximum cooperation between industry and government;
(c)performance-based risk management controls;
(d)proactive and competitive industry positioning;
(e)long-term viability of the racing industry;
(f)a balanced approach to problem betting.
As is apparent from s 17(1)(d) of the Act, one of the functions of the second defendant is the grant of licences in accordance with the Act. Licences are the primary method of regulating the business of betting by bookmakers in the Territory.
Section 18 of the Racing and Betting Act deals with the powers of the Commission. The section states:
(1)     Subject to this Act, the Commission has power to do all things that are necessary or convenient to be done for or in connection with or incidental to the performance of its functions and the exercise of its powers.
(2)     Without limiting the generality of subsection (1), the Commission may, in the performance of its functions and in the exercise of its powers, including powers or functions conferred on it elsewhere in this or any other act:
(a)[...]
(b)[...]
(c)do all such things as it considers necessary or desirable for the proper regulation and control, in the interests of the public, of:
(i)betting by and with bookmakers; and
(iii)betting by or through betting exchange operators; and
(iv)betting by means of a totalizator conducted under a licence granted under section 111; and
(d)do all such acts and things as it considers necessary or desirable for the proper regulation and control, in the interests of the public, of bookmakers, betting exchange operators, horse-racing, trotting and greyhound-racing; and
(e)[...]
(3)     [...]

In the performance of its functions and the exercise of its powers, the second defendant is subject to the direction of the first defendant. Section 19 of the Act states:
In the exercise of its powers and the performance of its functions, the Commission is subject to the direction of the Minister and it shall, as soon as practicable, comply with a direction given by the Minister.
Part III of the Racing and Betting Act deals with the regulation of racing codes. However, Division I of Part III is of general application. So far as is relevant to this proceeding, s 24 of the Act, which is headed ‘Licences and permits’, provides:
(1)     [...]
(2) A licence granted under section 90, 102 or 109C:
(a)remains in force for the period determined by the Commission and specified in the licence; and
(b)may be renewed; and
(c)is not transferable.
(3)     A licence or permit is subject to such conditions as are prescribed and such other conditions, not inconsistent with those prescribed or with this Act, as are endorsed on it.
(4)     The fee for a licence, other than a betting exchange licence, or a permit is as prescribed.
(5) The holder of a licence granted under section 90 or 102 must, while the licence remains in force, pay to the Commission the prescribed annual licence fee on or before each anniversary of the date on which the licence was granted.
(5A) [...]
(6)     The granting of a licence or permit is not a guarantee of the financial viability of the person to whom the licence or permit is granted.
Section 24 describes the core parameters of all licences. There is an issue between the parties about whether s 24(3) of the Act also impliedly grants the Commission/second defendant the power to endorse conditions on a licence granted to a sports bookmaker. This issue is considered below under ground 1.
Part IV of the Racing and Betting Act deals with bookmakers. Part IV is divided into five divisions. Division I is of general application. Division 2 deals with sports bookmakers. Division 3 deals with registered bookmakers. Division 4 deals with key employees.
Division 1 contains s 70 to s 88A inclusive. Subsection 70(1) provides:
A person shall not conduct the business of a sports bookmaker at licensed premises or a racing venue unless the person is the holder of a current bookmaker’s licence, granted by the Commission, permitting the conduct of the business of a sports bookmaker at those licensed premises or at that racing venue.
Section 80 deals with the suspension or cancellation of licences and permits. Subsection 80(1)(d) provides that the second defendant may discipline a bookmaker by reprimanding him, imposing on him a fine not exceeding 17 penalty units or, in the case of a sports bookmaker, not exceeding 170 penalty units, or suspending or cancelling a licence or permit granted under this Part if it is established that the bookmaker has, inter alia, failed to comply with a condition of his licence or permit.
Section 83 of the Act enables the second defendant to make rules. The section provides:
(1)     In this section, betting includes the determination of an official starting price and the negotiation, acceptance and distribution of monies in connection with bets and the settling of bets.
(2)     The Commission, with the approval of the Minister, may make rules, not inconsistent with this Act, for the control and regulation of betting by bookmaker’s.
(3)     Rules made under subsection (2) may impose penalties, not exceeding $5,000, for offences against the rules.
Part IV Division 2 contains provisions of the Act that are applicable to sports bookmakers, specifically s 89 to s 97 inclusive. Division 2 deals with applications for licences, the grant of licences and the imposition of conditions, the renewal of licences, the variation of licences and conditions, the power to exclude or remove persons from licensed premises, and approval of sports bookmakers agents.
Section 89 provides:
(1)     A person, other than a person who holds a licence under the Totalisator Licensing and Regulation Act 2000, may apply under this section for a licence to conduct the business of a sports bookmaker in premises specified in the application.
(2)     An application under subsection (1) shall be:
(aa)made to the Commission;
(a)in the approved form; and
(b)accompanied by:
(i)such evidence as the Commission requires of the applicant’s ability to carry on the business of a sports bookmaker; and
(ii)the prescribed fee,
and, where the application is made by a corporation, shall nominate a person to carry out the functions of the sports bookmaker under this Division.
(3)     In addition to subsection (2), where an application under subsection (1) is made by a corporation, the Commission may require the corporation to provide such information relating to the operations and structure of the corporation and relating to the directors of, and of all persons concerned in the management or control of, the corporation, as the Commission thinks fit.
Section 89 establishes that the licence which may be applied for under the section is a licence to conduct the business of a sports bookmaker. Applicants include natural persons and corporations. Further, the material provided in support of an application is material that largely goes to the probity, ability and capacity of the applicant to carry on the business of a sports bookmaker.
Section 90 of the Racing and Betting Act grants the second defendant power to grant or refuse to grant a licence applied for under s 89, that is, a licence to conduct the business of a sports bookmaker. Neither s 89 nor s 90 says anything about sporting events. The structure of the Racing and Betting Act does not connect a sports bookmaker and the licence that a sports bookmaker has with approved sporting events. That connection only occurs through the conditions that are imposed on a licence when it is granted. Section 90 provides:
(1)     The Commission may grant or refuse to grant a licence applied for under section 89.
(2)     For the purposes of determining whether to grant or refuse to grant a licence under this section the Commission may carry out, or cause to be carried out, such investigations and inquiries as the Commission considers necessary.
(2A) In determining whether to grant or refuse to grant a licence under this section, the Commission must have regard to the following:
(a)whether the applicant is of good repute, having regard to character, honesty and integrity;
(b)whether the applicant is of sound and stable financial background;
(c)in respect of a corporation - whether it has or has arranged a satisfactory ownership, trust or corporate structure;
(d)whether the applicant has or is able to obtain financial resources that are adequate to ensure the financial viability of the business proposed to be conducted and to obtain the services of persons who have sufficient experience in the management and operation of the business;
(e)whether the applicant has sufficient business ability to establish and maintain the business proposed to be conducted;
(f)whether the applicant or any person to be involved in the management or operation of the business proposed to be conducted has any association with any person, body or association who or which, in the opinion of the Commission, is not of good repute having regard to character, honesty and integrity or has undesirable or unsatisfactory financial resources;
(g)whether each director, partner, trustee, executive officer and secretary and any other officer or person determined by the Commission to be associated or connected with the ownership, administration or management of the operations or business of the applicant is a suitable person to act in that capacity.
(3)     A licence shall apply to the premises specified in the licence.
[(4) omitted]
(5)   Without limiting the generality of subsection (4), where the Commission grants a licence to a corporation, it may impose conditions relating to the structure and assets of the corporation, including requiring the approval of the Commission before any change may be made to its structure or assets or to the Directors and persons concerned in the management or control of the corporation and requiring the giving of undertakings and the lodging of securities by Directors and persons concerned in the management or control of the corporation.
(5A) Where a licence is granted to a corporation, the licence document shall, in addition to the name of the corporation to which it is granted, have endorsed on it the name and address of the person nominated in the application for the licence as required by section 89(2).
(6) Where a licence is granted to a person who has applied for the licence on behalf of and for the benefit of himself and other persons, the licence shall, in addition to the name of the sports bookmaker, contain an endorsement of the names and addresses of the persons, other than the sports bookmaker, on behalf of whom and for whose benefit the licence is granted.
(7) A person whose name is not endorsed on a licence who, except with the approval of the Commission, acquires or holds an interest in or derives a benefit from the business of bookmaking carried on by a sports bookmaker is guilty of an offence.
It is to be noted that there is no s 90(4) in the principal Act. Subsection 90(4) was omitted by s 12(b) of the Racing and Betting Amendment Act 2004 (NT). Subsection 90(4) stated:
A licence is subject to such conditions, if any, as the Commission thinks fit and endorses on the licence.
Prior to the commencement of the Racing and Betting Amendment Act 2004, the Commission had express power under s 90 of the principal Act to:
(1)impose on the licence at the time of grant such conditions as it thought fit (s 90(4)); and
(2)in addition, impose particular conditions on a corporation about its structure and assets (s 90(5)).
The condition making power referred to in s 90(5) of the Act was arguably a subset of the condition making power granted to the Commission by s 90(4) and s 24(3) (which is disputed). The original purpose of s 90(5) seems to have been the avoidance of any doubt about the extent of the Commission’s condition making power upon the grant of a sports bookmaker’s licence. In addition, prior to the 2004 amendments, and continuing, there was/is power under s 148 of the principal Act for the Administrator to prescribe the conditions subject to which licences are granted.
It seems that, in error, when the Legislature omitted s 90(4) of the Act in 2004, it failed to either: (i) delete the words ‘Without limiting the generality of subsection (4)’ from s 90(5); or (ii) amend s 90(5) in a manner that is consistent with s 109E(2).
The Commission does not have any power to impose conditions under s 90 that control or regulate the types of betting products that may be offered or accepted by a sports bookmaker.
Section 91 of the Racing and Betting Act grants the second defendant power to renew a licence to conduct the business of a sports bookmaker. Subsections 91(2) and (3) provide:
(2) The renewal of a licence under this Division shall be:
(a)subject to the same conditions as the original licence; or
(b)if the Commission thinks fit, subject to different conditions.
(3) Subsection (2)(b) does not permit the Commission to impose a condition that varies the effect of a prescribed condition to which the licence is subject.
Subsection 91(2) was not amended by the 2004 amendments. In particular, s 91(2)(b) is not expressed to be subject to s 90(5). Nor was s 90(3) amended to state that s 91(2)(b) does not permit the Commission to impose conditions beyond the scope of those stated in s 90(5) of the Act. Subsection 91(2)(b) of the Act is not confined to the structure and assets of corporations that conduct the business of a sports bookmaker.
Section 92 of the Act grants the Commission power, either upon the application of a sports bookmaker or of its own motion, to vary the licence of a sports bookmaker or the conditions to which it is subject or to impose additional conditions. Apart from the insertion of s 92(6), s 92 was not amended by the 2004 amendments. The section states:
(1) A sports bookmaker may apply to the Commission for a variation of his licence or the conditions to which it is subject and the Commission may, or may refuse to, vary the licence or the conditions, as it thinks fit.
(2) Subject to this section, the Commission may, from time to time, vary the licence of a sports bookmaker or the conditions to which it is subject or impose additional conditions on the licence.
Subsection 92(2) of the Act is the applicable provision in this proceeding. The power granted by that subsection is subject to s 92(6) and s 24(3) of the Act. In addition, the plaintiff argues that it is subject to the provisions of s 90(5).
Prior to imposing any additional conditions on a sports bookmaker’s licence, the Commission is required to accord the sports bookmaker procedural fairness. Subsections 92(3), (4) and (5) state:
(3)     Before exercising its powers under subsection (2), the Commission shall, by notice in writing to the sports bookmaker, notify the sports bookmaker of the variation of the licence or of the conditions or the conditions to be imposed on the licence.
(4)     The Commission may, not earlier than 28 days after a notice is sent to a sports bookmaker under subsection (3), vary the licence or the conditions to which it is subject or impose additional conditions on the licence.
(5)     The Commission shall, in exercising its powers under subsection (4), consider the representations, if any, of the sports bookmaker.
In addition, s 92(6) states that s 92 does not permit the Commission to vary the effect of a prescribed condition to which the licence is subject. Neither s 92(6) nor any other provision in s 92 states that the power to vary the conditions of a licence or to impose additional conditions is subject to the provisions of s 90(5) of the Act.
A prescribed condition is a condition prescribed by regulation made by the Administrator under s 148 of the Act, which is the regulation making provision. Of relevance, s 148(c), (p), (q) and (r) provide as follows:
The Administrator may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular relating to:
(c)     the conditions or restrictions subject to which licences, permits and other authorities under this Act are granted; and
(p)   the regulation and supervision of bookmakers; and
(q)   betting by or with bookmakers; and
(r)   betting at approved sporting events;
To date no conditions have been prescribed under s 148 of the Act.
The licensing of registered bookmakers is governed by Part IV Division 3 of the Racing and Betting Act. Subsection 102(1) of the Act provides that a person may apply for a licence to operate as a registered bookmaker. Subsection 102(3) provides that the Commission may grant or refuse to grant a licence to operate as a registered bookmaker. Subsection 102(4)(a) provides that a licence to operate as a registered bookmaker is subject to the prescribed conditions, that is, conditions prescribed by regulation under s 148. Section 102 does not grant the Commission power to impose conditions upon the grant of a registered bookmaker’s licence. The only conditions referred to in s 102 are prescribed conditions.
Section 102B provides for the renewal of registered bookmaker licences. Subsections 102B(2) and (3) state:
(2) The renewal of a licence under this Division id:
(a)subject to the same conditions as the original licence; or
(b)if the Commission thinks fit, subject to different conditions.
(3) Subsection (2)(b) does not permit the Commission to impose a condition that varies the effect of a prescribed condition to which the licence is subject.
Section 102B(3) does not confine the conditions imposed on the renewed licence to prescribed conditions. The Commission’s power to impose conditions upon a renewed licence is expressed to be at the discretion of the Commission.
Part IV Division 3 of the Act does not grant the Commission the power to vary or add conditions.
Part IVA, which contains s 109A to s 109ZC inclusive of the Act, regulates the operations of betting exchange operators. The licences of betting exchange operators are also subject to the two additional conditions. Part IVA was inserted in the principal Act by the Racing and Betting Legislation Amendment Act 2016. The Explanatory Memorandum for the 2016 amending Act stated that the new Part IVA creates a specific betting exchange licence to be granted, upon application, by the Commission and provides for various matters dealing with the application, granting, renewal and operation of a betting exchange licence. It also states, inter alia, that Division 2 of Part IVA provides for either the Commission or the licensee to seek, and be granted, variations to the licence conditions. There is no suggestion in the Explanatory Memorandum that any such variations are limited to the structure and assets of a corporation.
Section 109B provides that a person may apply for a licence to conduct a betting exchange business in premises specified in the application. Section 109C provides that subject to s 109D, the Commission may grant or refuse to grant a betting exchange licence to an applicant.
Section 109E deals with licenced premises and conditions. Subsection 109E(2) states:
(2) Without limiting section 24(3), the Commission may impose on a betting exchange licence granted to a body corporate conditions relating to the structure and assets of the body corporate, including conditions requiring:
(a)the approval of the Commission before any change may be made to the structure or assets, or the executive officers, of the body corporate; and
(b)the giving of undertakings and the lodging of securities by executive officers of the body corporate.
The words ‘Without limiting section 24(3)’ in s 109E(2) of the Act arguably support the defendants’ contention that s 24(3) impliedly grants the Commission power to endorse conditions on licences. However, the power to impose conditions under s 109E(2) is confined to conditions about the structure and assets of a body corporate.
Section 109G grants the Commission power to renew a betting exchange licence on application by the betting exchange operator. Subsection 109G(4) provides that the renewal of a betting exchange licence may be subject to different conditions than those to which the licence being renewed was subject. There is no provision in s 109G which states that the power to impose different conditions is subject to s 109E(2).
Section 109H of the Act deals with variation of betting exchange licences or conditions and the imposition of additional conditions. Subsection 109H(2) provides:
The Commission may, on its own initiative:
(a) vary a betting exchange operator’s betting exchange licence or the conditions to which it is subject; or
(b) impose additional conditions on the licence.
Subsection 109H(2) is not expressed to be subject to s 109E(2), which in any event is expressed to be subject to s 24(3) of the Act.
Subsection 109H(3) of the Act requires the Commission to give the betting exchange operator 28 days’ notice of any proposed variation or additional condition and the Commission must consider any representations made by the betting exchange operator. Subsection 109H(4) provides that s 109H does not permit the Commission to vary the effect of a prescribed condition to which a betting exchange licence is subject.
The discretionary ground
The defendants primarily sought to defend the plaintiff’s application at the discretionary level, arguing that the Court should withhold relief on the basis that it would be inutile to grant the plaintiff relief because the plaintiff has, all along, been engaged in “unlicensed activity” in the form of operating an unlawful lottery. This argument was made very late in this proceeding. It was made after a period of close to 12 months, during which the defendants formulated and imposed the two additional conditions on the licences of all sports bookmakers and all betting exchange operators. As is apparent from these reasons, the conditions were imposed on the basis that the plaintiff’s products were misleading because they mimicked lotteries when in fact they were not lotteries.

Whether the plaintiff’s products are lotteries can only be determined by consideration of the Gaming Control Act 1993 (NT). For the whole of the period of the dispute about the imposition of the two additional conditions, the first defendant has elected not to bring any proceedings against the plaintiff under that Act for engaging in unlawful activities contrary to that Act.
In my opinion, it would be unjust to decide this case on the discretionary ground.
There is utility in considering the grounds raised by the plaintiff for the following reasons:
(a)even if the plaintiff is unsuccessful, the plaintiff still retains its licence as a sports bookmaker and the plaintiff and other bookmakers are entitled to know the extent of their rights under their licences so they can determine the betting products that they may offer and accept;
(b)it is important for all bookmakers that any ambiguity in the meaning and scope of s 24(3), s 90(5) and s 92(2) is resolved, particularly as there seem to be a number of licence conditions that are endorsed on licences that go beyond the parameters of s 90(5), in particular, licence conditions such as condition 6 in the plaintiff’s licence which grant sports bookmakers the right to accept bets on approved sporting events; and
(c)it is also important for licensees to know what are the obligations of the first defendant when exercising her power under s 19 of the Act.
For the above reasons, the defendants’ application to dismiss the plaintiff’s claim on the discretionary ground is refused.
Ground 1
Plaintiff’s submissions
As to ground 1, the plaintiff submits that the omission of s 90(4) from the principal Act (which was enacted by s 12(b) of the Racing and Betting Amendment Act 2004) means that the second defendant cannot impose any conditions on the grant of a licence to conduct the business of a sports bookmaker, other than those conditions about the structure and assets of a corporation specified in s 90(5) of the principal Act. All other conditions must be prescribed by regulation under s 148(c). Further, the Commission’s power to impose additional conditions on a sports bookmaker’s licence under s 92(2) must be read subject to the provisions of s 90(5) and any prescribed regulations (s 92(6) and s 148). That is, any additional conditions must be confined to additional conditions about the structure and assets of the corporation. To do otherwise would be to make Parliament’s omission of s 90(4) in the principal Act meaningless because immediately after a sports bookmaker’s licence was granted, the Commission could (subject to s 92(3), (4) and (5)) impose the kinds of conditions it could have imposed under the omitted s 90(4).
The plaintiff submits that the purpose of the omission of s 90(4) was to enhance competition between sports bookmakers by standardising conditions and restricting the imposition of ad hoc conditions (which restrict competition) on the licences of individual sports bookmakers. The enactment of the Racing and Betting Amendment Act 2004 followed the completion of a National Competition Policy Review of Racing and Betting Legislation. Competition policy requires that, so far as possible, the licences of all bookmakers should be subject to standardised conditions.
The plaintiff submits that the terms of s 24(3) of the Act plainly do not confer a power on the Commission, implied or otherwise, to impose conditions on a licence. The true effect of s 24 is to define the juridical elements of licences, which are a form of statutory property. Those elements include that the licences are limited in duration, are not transferable, are attended by obligations to pay certain fees, and do not provide third parties with any guarantee of financial viability. In this context, s 24(3) does only two things. First, it states that if a condition is endorsed on a licence, then the licence is “subject to” that condition. In this way, it explains that the general legal effect of an “endorsement” is to burden the property comprising the licence. Second, it makes clear that an endorsement does not have legal effect if it is inconsistent with any prescribed conditions or the Act.
If s 24(3) of the Act conferred a power on the Commissioner to impose conditions on a licence, the enactment of s 90(4) would have been unnecessary.
Defendants’ submissions
On the other hand, the defendants argue that s 24(3) of the Act grants the Commission power to impose conditions at the time of the grant of a sports bookmaker’s licence. In all cases under s 90, s 102 and s 109E of the Act, s 24(3) provides for the endorsement of conditions on the licence. There are two types of conditions. The first are those which are prescribed, being those imposed by the Act and Regulations. The other type are those endorsed upon a licence. Subsection 24(3) implicitly confers a power on the Commission to impose conditions. There are countless examples of legislative drafting in this way, that have been interpreted as containing powers and duties by implication.
The text ‘Without limiting the generality...’ at the beginning of s 90(5) is intended by the Legislature to mean that s 90(5) is not the extent of the Commission’s condition making power. The construction to be given to s 24(3) of the Act is made clear by the provisions of Part IVA that were introduced in 2016. (The relevant provisions of which are set out at [46] to [52] above.) Section 109E(2) is in similar terms to s 90(5). There is no other provision in Part IVA that grants the Commission power to impose conditions upon the grant of a betting exchange operator’s licence. However, s 109E(2) commences with the words, ‘Without limiting section 24(3)’. This part of the text of s 109E(2) is consistent with the defendants’ argument that s 24(3) grants the Commission power to impose or endorse conditions on licences.
Similarly to Part IV Division 2, s 109G(4) and s 109H(2)(b) respectively provide that the renewal of a betting exchange licence may be subject to different conditions, and the Commission may from time to time impose additional conditions on a betting exchange operator’s licence. Given the structure of Part IVA and the inclusion of the words ‘Without limiting section 24(3)’ in s 109E(2), the defendants submit that it cannot be the Legislature’s intention that the provisions of s 109G(4) and s 109H(2)(b) are limited to imposing the kinds of conditions referred to in s 109E(2).
Rather than being a limiting provision, s 109E(2) of the Act is intended to reinforce a matter that might otherwise have been controversial (whether the Commission could regulate aspects of the internal affairs of a sports bookmaker) if there was only a general condition making power in s 109E(2). Likewise in respect of s 90(5). There has simply been an oversight by the Legislature, which has failed to delete the words ‘subsection (4)’ and insert the words ‘subsection 24(3)’.
The defendant’s submit that there is no evidence in the legislative history of the omission of s 90(4) that suggests Parliament had a purpose of limiting the condition making power of the Commission in the way contended by the plaintiff. The plaintiff’s argument would have the consequence that Parliament has left the Commission without any power to attach conditions to the licences of individual sports bookmakers and could only regulate the corporate structure and assets of corporate bookmakers. There is no support in the extrinsic materials for such an outcome.
The defendants contend that there has been a slip, and s 90(5) should be read as if subsection (4) was deleted and subsection 24(3) was inserted.
Consideration of ground 1
In my opinion, the construction given to s 92(2) of the Act by the defendants is correct.
In R v Senge,[2] Brownhill J stated:
The task of statutory construction is the attribution of meaning to text: SAS Trustee v Miles (2018) 265 CLR 137 at [41]. The High Court has said on many occasions that the task begins and ends with the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]. What that means is that the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute, whilst at the same time, regard is had to its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]. So, from the outset (not only when ambiguity might be thought to arise), the text must be considered in context (which includes the existing state of the law and, by the legitimate use of extrinsic materials, the mischief which the statute was intended to remedy), and attribution of meaning to the text in context must be guided so far as possible by the statutory purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14], noting that the language which has actually been employed by the legislature is the surest guide to the statutory purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47].
The text of s 92(2) of the Act is unambiguous. So far as is relevant, the text states that the Commission may from time to time impose additional conditions on the licence. The subsection applies to sports bookmaker licences held by both natural persons and corporations. The subsection is expressed to be subject to s 92 only. It is not expressed to be subject to s 90(5). Prior to the omission of s 90(4), the purpose of s 90(5) was to make it plain that the Commission could regulate certain aspects of the internal affairs of a corporation that held a sports bookmaker’s licence.
As is stated above, the defendants’ construction of s 92(2) of the Act is supported by the provisions of Part IVA of the Act, which in relevant respects mirror the provisions of Part IV Division 2. Further support for that construction is found in the provisions of Part IV Division 3 of the Act. On a plain reading of the text of s 102, the Commission has no power to impose conditions upon the grant of a registered bookmaker’s licence. The only conditions that apply upon the grant of a licence are prescribed conditions. Despite the fact that there is no grant of power to the Commission to impose conditions upon the grant of a registered bookmaker’s licence under s 102, s 102B grants the Commission power to impose different conditions on the renewal of a registered bookmaker’s licence. The Commission may do so regardless of the fact that the original registered bookmaker’s licence was only subject to prescribed conditions. There is no rational basis for such a construction of the Act.
In my opinion, there is nothing in the omission of s 90(4) of the Act, or any of the 2004 amendments to the Act, that suggest the original purpose of s 90(5) has been altered. It is not inconsistent with competition policy for a sports bookmaker to commence operating a sports bookmaker business according to prescribed conditions and an approved corporate structure, subject to a provision that from time to time it may be necessary for the Commission to impose additional conditions on the licence to achieve the objects of the Act and the purposes of the grant of the licence. Any additional conditions must be imposed in good faith and, before the Commission can impose them, it must give the sports bookmaker 28 days’ notice of the additional conditions, and the sports bookmaker must be given an opportunity to make submissions that the Commission must consider. The additional conditions must be consistent with the Act and its purposes, and the additional conditions cannot vary any prescribed conditions.
I also accept the defendants’ submissions that s 24(3) of the Act implicitly grants the Commission power to impose conditions on licences granted under the Racing and Betting Act and s 90(5) should be interpreted according to its original purpose and is not a constraint on the Commission’s power to impose additional conditions under s 92(2).
Ground 1A
Plaintiff’s submissions
Ground 1A is confined to an attack on the first additional condition set out at [4] above. The plaintiff submits that the first additional condition is invalid on the basis that it lacks reasonable certainty and meaning of application. As there are serious disciplinary consequences, including the cancellation of a sports bookmaker’s licence (s 80(1)), the power of the Commission to impose conditions carries with it a requirement that the text of any condition, the breach of which may attract a cancellation of licence, is reasonably certain.
In support of this proposition, the plaintiff relied on Television Corporation Ltd v The Commonwealth.[3] The case concerned the validity of the imposition of additional conditions on the licences of two holders of commercial television licences. Each corporation brought separate proceedings that were heard together. Under the Broadcasting and Television Act 1942-1960 (Cth), the Postmaster-General was empowered to grant, subject to the Act, to a person a licence for a commercial broadcasting station or for a commercial television station upon such conditions, and in accordance with such form, as he determines. Section 108 provided that during the currency of a licence, the Postmaster-General, by notice in writing to the licensee, may vary or revoke any of the conditions upon which the licence is granted (not being conditions applicable by virtue of s 129) or impose further conditions. The Postmaster-General served on Television Corporation Ltd, and another licence holder, notices of his intention to impose further conditions on their licences, which was objected to by both licence holders and ultimately resulted in legal proceedings before the Full Court of the High Court. An important question in the proceedings was whether the additional conditions were outside the authority granted by s 108 because they were uncertain. Relevant to this question, Kitto J stated the following principles:
What, then, is essential for the validity of a condition which the Minister purports to impose upon a licence, either originally or by way of addition? Good faith on the part of the Minister is necessary: it is not here impugned. Consistency with the Act and relevance to its purposes are undoubtedly required, but I have not been able to see that the proposed further conditions are open to attack in either of these respects. There is, however, another requisite of validity, as I read the Act, and that is that the condition shall possess reasonable certainty of meaning and application. The reasons which seem to me to lead to this conclusion may be stated quite briefly.
The conditions the Minister is authorized to impose are not conditions of forfeiture in the sense that upon breach the licence will come to an end, but neither are they mere terms for breach of which some penalty may be imposed or some step taken to enforce observance. The sanction behind them is found in a provision, in s. 86 (1) (c), that where the Minister is satisfied that a condition has not been complied with he may suspend or revoke the licence. If he is so satisfied, and if he decides to suspend or revoke the licence, no court has authority to substitute its opinion or decision for his. But the courts have authority, on well-recognized principles, to declare that he is not lawfully satisfied, and to hold void any purported suspension or revocation that depends upon his being satisfied, if he has proceeded upon an erroneous view as to what constitutes a breach of the relevant condition. This being prefaced, the nature of the power to impose conditions may be described from two points of view. From the licensee company's point of view it is a power in the Minister to subject the licence to a liability to be suspended or revoked in the event of his being satisfied of a non-compliance with the stipulation that it makes. From the Minister's point of view it is a power to prescribe for himself (and his successors) a standard which he (and they) will be in law bound to apply according to its true meaning whenever an occasion arises to decide under s. 86 (1) (c) whether he is satisfied that a non-compliance has occurred.
In this context it seems to me a necessary conclusion that what the Act means by a “condition” is a specification of acts to be done or abstained from by the licensee company—a specification telling the company what it is to do or refrain from doing, and thus on the one hand enabling it in regulating its conduct to know whether it is imperilling the licence or not, and on the other hand making clear to the Minister for the time being what test he is to apply in order that any judgment he may form as to compliance or non-compliance may not be vitiated by error of law. A specification cannot, I think, fulfil this dual function if it is so vaguely expressed that either its meaning or its application is a matter of real uncertainty; and for that reason it seems to me that on the proper construction of the Act the Minister's power to impose conditions is to be understood as limited to the imposition of conditions that are reasonably certain—that is to say (as has been said in a long line of cases with respect to conditions of forfeiture created by the dealings of private persons with other forms of property) conditions such that from the moment of their creation the Court can say with reasonable certainty in what events forfeiture will be incurred: cf. In re Sandbrook; Noel v. Sandbrook. Such certainty includes both certainty of expression and certainty in operation: In re Exmouth; Exmouth v. Praed; Sifton v. Sifton; Clayton v. Ramsden.
What is the alternative to the view I have expressed? It is that any stipulation at all concerning the conduct of the licensee company is within the Minister's power to impose, even though it fails to give the company any sure guidance as to what is required of it. To take an example, suppose the Minister were to impose a condition that the licensee should conduct its business in all respects with good taste. Surely a construction of the Act that would make that condition within power would be so unreasonable that it ought not to be adopted if any more sensible construction is fairly open. After all, the power given to the Minister is to prescribe the conditions of his own authority to deprive a licensee of its licence. Is it really to be supposed that the Parliament intended that he might prescribe conditions in words of such dubious import that no one but himself would be sure how far he meant them to go? The Parliament did not give the Minister power to suspend or revoke licences at will. The course it took was to require him to describe in advance, by the formal method of imposing conditions upon a licence, what conduct of the licensee would expose the licence to suspension or revocation. I can see no justification for so loose an interpretation of the Act that a form of words which by reason of vagueness fails to perform that function may be held a condition within the intended scope of the authority.
Judged by this test, the so-called conditions set out in the Minister's notices to the plaintiffs are in my opinion unsupportable as conditions which the Minister has power to impose. The point is not that the proposed conditions offend against a general principle that uncertainty in executive instruments spells legal invalidity, for there is no such general principle: see King Gee Clothing Co. Pty. Ltd. v. The Commonwealth; Cann's Pty. Ltd. v. The Commonwealth. The point is that a requirement of certainty in the sense I have described is inherent in the provisions by which the Minister's power is created: cf. per Diplock L.J., Mixnams Properties Ltd. v. Chertsey Urban District Council.
[...]
If it be said that though all this be true it is nevertheless not the business of the courts, the answer is that where an Act on its true construction authorizes only conditions characterized by reasonable certainty of meaning and application it is for the courts to hold beyond power any attempt to set up as a condition a provision which does not possess that certainty. In my opinion that should be the decision in the present cases. If I read aright the judgments delivered in the Court of Appeal and the House of Lords in Fawcett Properties Ltd. v. Buckingham County Council, it would have been the decision in England if these cases had arisen there.[4]

It is important to note that the requirement of reasonable certainty that Kitto J identified arises from a reading of the Act and the nature of the power to impose conditions. There is not a general principle that uncertainty in executive instruments spells legal invalidity. Kitto J found the requirement for reasonable certainty to be inherent in the statutory provisions by which the Minister's power was created. It is a question of power and the exercise of power. Kitto J applied the principles enunciated in King Gee Clothing Co. Pty. Ltd. v The Commonwealth[5] and Cann's Pty. Ltd. v The Commonwealth.[6]
Of the other four judges on the High Court in Television Corporation Ltd v The Commonwealth, three of their Honours decided the case on different grounds to Kitto J. Menzies J decided the same point as Kitto J, but decided it differently. However, nothing turns on this because Kitto J’s statement of the relevant principles about uncertainty is consistent with established authority.
Therefore, the plaintiff submits that for an endorsed condition imposed under the Racing and Betting Act to be valid and within the condition making power of the Commission, the condition must be a specification of acts or conduct to be done or abstained from by the licensee company. A condition must be a specification telling the company what it is to do and what it is to refrain from doing. Thus, on the one hand, enabling the company in regulating its conduct to know whether it is contravening the licence or not. On the other hand, making it clear to the Minister the test to be applied in order that any judgment about compliance or non-compliance with a condition may not be vitiated by error of law. A specification cannot fulfil this dual function if it is so vaguely expressed that either its meaning, or its application, is a matter of real uncertainty. On a proper construction of the Act, for a condition to be valid and within power, it must be reasonably certain. A reasonable certainty of meaning, appreciable to the reader of the conditions at the time they are imposed, is necessary for validity. From the moment of its creation, a condition must be such as to enable a court to say with reasonable certainty what conduct is capable of resulting in cancellation of a licence. Such certainty includes both certainty of expression and certainty in operation.
The plaintiff submits that the text of the first additional condition is not reasonably certain for the following reasons. The text raises difficult questions of meaning and application. First, what is the meaning of “constitutes or approximates a lottery”? Suppose it were held that “lottery” necessarily entails the distribution of prizes by chance. The plaintiff’s products lack this feature, as the winning numbers are not chosen by chance, but rather, are taken from the opening values of specified financial indices on a given day. As the plaintiff’s products thus would not “constitute” a lottery, the question becomes do they “approximate” a lottery? That is not an easy question to answer. What does it mean to “approximate a lottery”? How approximate to a lottery must a betting product be to fall foul of the prohibition? Does any product, which involves the use of winning numbers, “approximate” a lottery?
The verb “to approximate” connotes coming close to, or being similar to, the object of the verb. However, what is the standard of similarity that the first condition prescribes? How similar is too similar? Moreover, how is a licensee to ascertain, in advance, whether one or more of its products will be sufficiently similar to a lottery as to put it in jeopardy of committing a criminal offence?
Secondly, both limbs of the first condition seek to introduce an objective standard by interposing the existence of a “reasonable person” or a “person”. This only heightens the uncertainty. As the second defendant accepted in a letter to the Minister dated 19 December 2019:
... If the new licence condition is predicated on the view of a ‘reasonable person’ the subjective nature of that requirement may give rise to difficulties in enforcement.
The subjective nature of the first condition appears to have been the reason for the insertion of the second condition. Even Tabcorp, when commenting on the additional conditions, responded, “While supportive”, it had “some concerns regards the proposed licence conditions, particularly around potential ambiguity with the wording.”
The “difficulties in enforcement” are manifest. What kind of marketing would (1) “lead” (that is, cause) (2) a “reasonable person” (3) to “infer” (4) that a product “constitutes or approximates a lottery”? Should the reasonable person be taken to know the correct meaning of “lottery”? If so, once the person concluded that a product does not “constitute” a lottery, how then is the person to reason that the product nonetheless “approximates” a lottery if the product lacks one or more of the essential attributes of a lottery? What effect does “reasonable” have upon the manner in which the hypothetical person draws inferences?
Turning to the second limb of the first condition, what kind of action would (1) “cause” (2) “a person” (3) “to believe” (4) “that a bet type constitutes or approximates a lottery”? Who is the relevant “person” in this scenario, and what is the effect of omitting the “reasonable” qualifier that adorned the “reasonable person” of the first limb of the first condition?
Thirdly, what is meant by “lottery”? The term is not defined in the conditions. Nor is it defined in the Racing and Betting Act. It is given an extraordinary broad meaning in s 3 of the Gaming Control Act1993 (NT):
Lottery means a disposition of real or personal property or a share or interest in such property or of a right to a benefit or thing dependent on or to be determined, wholly or partly, by chance or such means as may be prescribed, and includes such a disposition in or outside the Territory as the result of a chance offered, accepted or arranged by mail in or from the Territory.
This definition captures every bet or wager, the determination of which is done “wholly or partly, by chance”. It would capture the toss of a coin (which is determined by “chance”) to determine which side would bat first in a cricket match (being “a right to a benefit or thing”). It would capture a lucky dip at a child’s birthday party. In truth, “lottery” is not a precise technical term capable of bearing one meaning only. There is no single objective characteristic that marks out a “lottery” from things that are not a lottery. The Macquarie Dictionary alone defines “lottery” as follows:
1.     A scheme or arrangement for raising money, for some public, charitable, or private purpose, by the sale of a large number of tickets, certain among which, as determined by chance after the sale, entitled the holder to prizes.
2.     Any scheme for the distribution of prizes by chance.
3.     Any affair of chance.
It is unclear which of these characteristics, or which combination of them, is necessary or sufficient for a product to constitute a “lottery”. Do betting products offered in the normal course of a sports bookmaker’s business constitute “a scheme or arrangement for raising money”, when there is no particular fundraising objective? Is a “public, charitable or private purpose” necessary? Must there be a “large number of tickets” sold in order for a product to become a lottery? If so, how large? Is the distribution of prizes “by chance” sufficient without more to constitute a lottery, or must these earlier mentioned features also be present? Which of these lottery characteristics, or which combination of them, are relevant in the assessment of whether a product approximates a lottery?
Without knowing what a lottery is for the purposes of the additional conditions, the plaintiff has even less chance of knowing what might “constitute” or “approximate” a lottery, and even less chance still of knowing what types of marketing might lead a reasonable person to infer that something constitutes or approximates a lottery.
The plaintiff submits that it is simply not possible to answer any of the above questions from the conditions themselves. The conditions are not drafted in such a manner that, from the moment of their creation, the Court can say with reasonable certainty in what events cancellation will occur.
Defendants’ submissions
On the other hand, the defendants submit that the first condition is valid and it has certainty of meaning. There is an important difference between ambiguity where the language used presents a “constructional choice” between more than one meaning, and the lack of content of an expression such that it cannot be given any meaning at all. Ambiguity in the meaning of words does not lead to invalidity of a condition. Courts will try to adopt a construction that gives statutory instruments and decisions practical effect. Once the ambiguity is resolved, the words will have a single and correct meaning.
Ambiguity should not be approached in a precious or hypercritical fashion. The mere fact that parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear.
The plaintiff’s criticisms about the first condition are not about “uncertainty”, in the relevant sense. The assumption by the plaintiff appears to be that if there is a contention as to the meaning of an expression because it can be said that a word or expression has two or more alternative meanings, or meanings with different scope, there is uncertainty. That is not the law.
The plaintiff’s submissions about the criterion of “reasonable person” that is contained in the first limb of the first condition does not even reach the level of identifying an ambiguity. The criterion is widely used in statutes and regulatory instruments, and is routinely applied. The criterion creates an objective test. The objective test of “reasonable person” does not require a particular person to be misled. It requires instead an objective analysis by reference to the responses of a reasonable person. It does not even introduce ambiguity, let alone uncertainty.
The word “lottery” means a lottery in the sense that a reasonable person would understand a lottery, which is an event that is comprised of the distribution of prizes by chance. That is also the understanding of lottery of an ordinary person. The requirement of “approximates a lottery” means, in the context of a condition directed at misrepresentation or misleading conduct, a product with all the hallmarks of a lottery, without calling itself by that name. That is, “approximates a” means “represents itself as”, “resembles”, or “appears to be”. The Australian Consumer Law similarly proscribes “representations” that include representations of goods or services as something which they are not. It is no impediment to reasonable certainty that the proscribed representation involves a matter of degree.
The first condition is directed to proscribing “bait” advertising that induces a belief sufficient for someone to act and to respond to it. It addresses products that resemble a lottery, as a reasonable consumer of lottery products understands a lottery. To represent or market a product in such a manner as it resembles a lottery is to depict the product as having sufficient attributes of a lottery for the relevant inference or belief to arise.
Uncertainty is not a standalone ground. The determination of whether the first condition is invalid involves questions about the exercise of a power and excess of power. Those questions involve the interpretation of the statutory provision granting the relevant power and the relevant instrument. Consequently, it is necessary to start with the ordinary principles of statutory interpretation and it is only when you get to the stage of expressed unintelligibility that it becomes necessary to ask the question, is this authorised by the statute?
Consideration of ground 1A
Ground 1A is confined to an attack upon the first additional condition, which is set out at [4] above. The chapeau of the first condition confines its scope to things done in or through any format or media. When used in this context, ‘format’ ordinarily means the way in which the plaintiff arranges, presents or displays, and stores its product information online. There are then two relevant parts to the first condition. The first part (a(i)) prohibits sports bookmakers from describing, depicting or marketing their products in or through any format or media in a manner that would lead a reasonable person to infer that the sports bookmaker’s products constitute or approximate a lottery. The verb “market” ordinarily means to advertise or promote.
The first part of the first condition is concerned with representations made by a sports bookmaker about betting products in or through any format or media. Ex facie, the first condition does not prohibit or ban products that constitute or approximate a lottery. However, if a betting product was not a lottery, but had some elements of a lottery, then simply describing a lawful product in or through any format or media may amount to a breach of the first condition.
In this context, a “reasonable person” is a fictional construct. It is a hypothetical person of ordinary prudence, intelligence, and skill. The “reasonable person” is a reasonably informed consumer who makes online bets or wagers in accordance with community standards.
The determination of the meaning of the words “constitutes or approximates” is a little complex because, apart from anything else, they involve an uncommon use of “constitute”. The Macquarie Dictionary defines ‘constitute’ as follows:
1.   (of elements, etc.) to compose; form.
2.   to appoint to an office or function; make or create.
3.   to set up or found (an institution, etc.).
4.   to give legal form to (an assembly, court, etc.).
The Australian Oxford Dictionary defines “constitute” as follows:
1.   be the components or essence of, make up, form.
2.   a be equivalent or tantamount to (this constitutes an official warning). b formally establish (does not constitute a precedent).
3.   give legal or constitutional form to; establish by law.
In my opinion, in its context in the first condition, “constitute” means equivalent or tantamount to or virtually the same as. The words “constitutes or approximates” are a form of hendiadys that has been used by the draftsperson to try and capture the defendants’ concerns about what they allege is the plaintiff’s past misleading conduct in presenting its products in such a way as to mimic lotteries. This conduct includes the use of the plaintiff’s name, the description and names of its products, the use of the word “Jackpot”, the use of images of balls and particular colours when promoting its products, and the form and style of its betting slips etc.
The second limb ((a)(ii)) of the first condition contains two prohibitions. First, a sports bookmaker is prohibited from taking any action in or through any format or media to cause a person to believe that their betting products constitute or approximate a lottery. Second, a sports bookmaker is prohibited from taking any action in or through any format or media intended to cause a person to believe that their products constitute or approximate a lottery.
The first part of the second limb (a(ii)) of the first condition, which includes the verb ‘to cause’, is expressed in the future tense. Consequently, the question becomes is the action taken by the plaintiff likely to cause an ordinary person to believe that the plaintiff’s products comprise or approximate a lottery? The answer to this question is determined by the nature and quality of the plaintiff’s action; and a breach may occur regardless of the plaintiff’s intention in taking the action.
The second part of the second limb (a(ii)) of the first condition is concerned with the plaintiff’s state of mind when the plaintiff takes action. Consequently, if a sports bookmaker has the proscribed intention when the action is taken, even an action that was unlikely to cause the relevant belief, then the action could constitute a breach of the condition. However, it would be very difficult to establish such a conditional breach because a person’s intention is usually inferred from the nature and quality of their actions.
The provisions of the second limb (a(ii)) of the first condition make the prohibitions created by the first condition extremely wide. This is so despite the fact that the proscribed actions are limited to actions that are taken in and through any format or media only. Given the breadth and subject matter of the first part of the first condition, it impossible to definitively determine what actions beyond those described in the first part (a(i)) of the first condition fall within the second limb ((a)(ii)) of the first condition.
Subsection 92(2) of the Act, which is set out at [36] above, grants the Commission power to impose additional conditions on a sports bookmaker’s licence after a licence has been granted. Ex facie, the power granted to the Commission under s 92(2) to impose additional conditions on a licence is a wide power without express limitation. The power granted by s 92(2) is nevertheless subject to a number of qualifications. Firstly, no additional condition can be imposed that is inconsistent with the law and in particular with the Act itself. Second, as the power has been conferred for the general purposes of the Act, any additional condition must be bona fide for those purposes and must not be foreign to the nature of those purposes.
In addition, there are safeguarding provisions in the Act. The Commission must give the licence holder notice of any proposed additional conditions, the licence holder has an opportunity to make representations about the additional conditions, and the Commission must consider those submissions.
Further, s 92(2) must be interpreted in its context in the Act. Therefore, regard must also be had to the nature of the rights granted by a sports bookmaker’s licence and to s 80(1) of the Act because there are potentially serious consequences if a sports bookmaker fails to comply with the conditions endorsed on a licence. Section 80(1) provides, inter alia, that when a sports bookmaker fails to comply with a condition of their licence, the Commission may impose a fine on the sports bookmaker, not exceeding 170 penalty units, or $26,690; or suspend or cancel the sports bookmaker’s licence.
When regard is had to the nature of a sports bookmaker’s licence and to s 80(1) of the Act, two questions arise. First, must any additional conditions imposed under s 92(2) be reasonably certain? Second, is the first condition reasonably certain for the purposes of the Act?
In determining the above questions, it is useful to look at some of the leading authorities that have considered these questions in respect of various legislative provisions. In addition to Television Corporation Ltd v The Commonwealth, there are a number of important authorities that have considered when any textual uncertainty of a legislative instrument or condition imposed pursuant to legislative provisions will be invalid. King Gee Clothing Co. Pty. Ltd. v The Commonwealth is one such authority. The case concerned a challenge to a price regulation order made by the Prices Commissioner under the National Security (Prices) Regulations (Cth) that purported to fix the prices at which men’s, youths’ and boys’ outerwear might be sold by manufacturers and semi-manufacturers and makers-up. In his reasons, Dixon J made the following statements of principle:
The question raised by this demurrer is whether Prices Order No. 1816 relating to “Men's, Youths' and Boys' outer-wear” is valid. It is made as under reg. 23 of the National Security (Prices) Regulations.
The order is attacked as ultra vires because it does not pursue the authority conferred upon the Prices Commissioner by the regulation and is void for uncertainty.
Under some parts of reg. 23 uncertainty doubtless goes to power. For, if some of the precise authorities which it gives are to be well exercised, it will be necessary to name or specify the matters and things intended, including amounts, and to use some exactness.
[...]
The Prices Order, however, is made by the Commissioner under a regulation and not an Act of Parliament. Let it be assumed that it may be regarded as an administrative order, not as a piece of legislation. But, even so, I should think that uncertainty, as a test of validity, arose from the nature of the power. On this footing, in the end, the question comes back to ultra vires.
In the present case, the question whether the Order is ultra vires of the Prices Commissioner depends upon the meaning and operation of reg. 23 (1) and (1A) of the Prices Regulations, and, I think that, if the meaning of those provisions is ascertained, it will be found that there is no independent question of uncertainty or vagueness as a ground affecting the validity of the Order.
Sub-regulation 1 of reg. 23 gives the Prices Commissioner two powers. The second of them, which relates to notifying an individual, or an association of individuals, of prices particularly fixed for him or them, does not affect this case and nothing need be said about it. But the first contains what may be called the primary or principal expression of the power to fix prices. It relates, of course, only to “declared” goods, but with respect to them it gives the Prices Commissioner an absolute discretion, by order, to fix and declare the maximum price at which any such goods may be sold generally or in any part of Australia or in any proclaimed area. Now, if that power stood by itself, and were to be interpreted without a context, it would, I think, be taken to mean that the Commissioner must name amounts as prices in respect of goods sufficiently described or indicated and that he could discriminate with reference to the same description of goods only geographically. It is, of course, clear that, if the power is to name an amount as a price, it could not be well exercised without providing the most certain information you could have as to a maximum price, namely a money figure. But sub-reg. 1 does not stand alone. Sub-regulation 1A goes on to enumerate a number of more specific powers. It provides that in particular … the Commissioner, in the exercise of his powers under sub-reg. 1, may fix and declare maximum prices. The prices may be of varying kinds and obtained, constructed or based from or upon many different considerations or grounds, which are defined in eight paragraphs. A perusal of the paragraphs makes it quite clear that, when prices are fixed under the particular powers they confer, or, at all events, under many of them, amounts need not be named as prices. To that extent at least greater room is allowed for uncertainty of expression. Prices may be fixed on sliding scales; on a condition or conditions; on landed or other cost with the addition of a percentage or specified amount or both; or upon or according to any principle or condition specified by the Commissioner. The powers thus reposed in the Commissioner are very wide indeed. But, having regard to certain expressions used and to the nature of the duty to be imposed by the orders upon the subject, I think that there are limitations upon the kind of standards or criteria he may employ for building up the prices he fixes. They must, I think, be standards or criteria from which a price may be calculated. It is not enough if the price, or some element entering into its composition, can be obtained only by estimation or by the exercise of judgment or discretion, as, for instance, where apportionment or allocation is required.
The expressions to which I refer are “fix and declare”, “maximum prices,” words repeated in each power; and the expression “specified,” which is used in two connections.
By the nature of the duty imposed upon the subject I mean the obligation to keep the prices at which he sells below definite limits, limits which of necessity must be clearly ascertainable. The extremely heavy punishments to which, under the Black Marketing Act, a sale above those limits exposes the seller illustrates the reasons for authorizing only maximum prices that are clearly ascertainable.
It needs no imagination to see that in drafting an order for the fixing of prices for an important trade many difficulties must be encountered and it would be impossible to avoid ambiguities and uncertainties which are bound to arise both from forms of expression and from the intricacies of the subject. But it is not to matters of that sort that I refer. They depend upon the meaning of the instrument and they must be resolved by construction and interpretation as in the case of other documents. They do not go to power. But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no certain objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price. That, I think, means that the power has not been pursued and is not well exercised.[7]

Whether or not trade is characterised as intraterritory trade or trade between the Territory and a State (hereafter “interstate trade”) is a question of fact and degree, to be determined by reference to the substance of the transactions that constitute the trade said to be burdened by the additional conditions.[37] The question is not answered by the location of the “real central control and management”of a supplier.[38] The primary consideration for determining the location of the operations of the business for determining whether it has the requisite interstate character is the place where it enters into contracts with its customers.[39] The subject of s 49 of the Northern Territory (Self-Government) Act is interstate trade, not traders, whose transactions may not consist wholly of interstate transactions or of intraterritory transactions.
The transactions relied on by the plaintiff comprise intraterritory trade. On the demand side, the customers are located in the Territory. The plaintiff’s case concerns the products it markets in the Territory. The protection the plaintiff says the additional conditions afford is provided to local news agencies, trading only within the Territory. On the supply side, the plaintiff’s licence only authorises the plaintiff to accept bets at the premises at 3/18 Bishop Street, Woolner in the Territory, and the plaintiff accepts that it conduct its business out of those premises. The relevant transactions are therefore properly characterised as intraterritory trade.
As the Solicitor-General submitted, the above conclusion is confirmed when regard is had to the statutory and licence requirements including:
(a)the licence requires the plaintiff to conduct the business of a sports bookmaker from the premises in the Territory, defined in the Racing and Betting Act as “licensed premises”;
(b)a licence under the Racing and Betting Act applies to the premises specified in the licence;
(c)it is illegal for the plaintiff to conduct the business of a sports bookmaker at premises unless it holds a licence permitting the conduct of the business of a sports bookmaker at licensed premises;
(d)the plaintiff must produce betting records at the licensed premises, if demanded by a betting inspector;
(e)the licence requires that the person nominated under s 89(2) of the Racing and Betting Act to carry out the functions of the sports bookmaker must be located in the Territory and be contactable at all times;
(f)the licence requires that the plaintiff’s registration with ASIC must show the Territory address is the principal place of business (and the plaintiff’s principal place of business as recorded with ASIC is in fact 3/18 Bishop Street, Woolner in the Territory);
(g)the licence requires the plaintiff to maintain an independent audit log in the Territory; and
(h)the licence only authorises the plaintiff to accept bets at the licensed premises in the Territory.
While the plaintiff provided virtually no evidence of their activities in the Territory, it is also to be noted that the plaintiff employs 14 people in the Territory.
In Victoria v Sportsbet Pty Ltd,[40] the Court unanimously held that the key question is whether the relevant transaction said to be affected by the impugned provisions constituted interstate or intrastate trade. Kenny and Middleton JJ stated:
As the authorities show, the subject of s 49 of the Self-Government Act is not traders, whose trade may consist of in-State transactions and transactions between the State and the Territory (and elsewhere). Hence, the cross-border elements of the trader's business that belong to transactions outside the trade in question do not bear on whether that trade attracts the protection of s 49. Consideration of matters such as the location of the trader's principal office and senior management, or the trader's infrastructure and business model, distracts attention from the relevant inquiry, which first requires identification of the transactions constituting the relevant trade. This is borne out by the plurality judgment in Sportsbet v NSW at [17] and Betfair v Racing NSW at [46], particularly the reference (at [49]) to O Gilpin Ltd v Commissioner for Taxation (NSW) (1940) 64 CLR 169. The plurality described that case in the following terms:
“The taxpayer … was incorporated in Victoria, where its central management and control was located. But it carried on business as a draper at retail shops in four States including Victoria and New South Wales. This Court held that where a business ordinarily consists of selling goods (and, it might have been added, of supplying services), the contracts with consumers are of the essence of the business. The result was that, despite the location in Victoria of the central management and control, the taxpayer carried on trade in New South Wales where contracts were made and it derived income in that State.”
On these appeals then, the question whether s 49 is attracted at all first depends on the identification of trade between the Territory and the State that is said to be burdened, and not on the cross-border character of Sportsbet's organisation and business as a whole. This depends on the relationship between the impugned provisions and the trade said to be affected by them.
That being the case ground 4A is not made out.
Ground 5A
Plaintiff’s submissions
As to Ground 5A, the plaintiff submits that the first defendant failed to consider material parts of the representations that had been made by the plaintiff to the second defendant.
In its various written submissions to the second defendant, the plaintiff made what it says were three material submissions. First, there was little or no evidence of any community or consumer concerns. The only concerned parties were competitors, namely, Tabcorp and the Australian Lotteries and Newsagents Association.
Second, the plaintiff was willing to change its “product line up” and company name, and also “negotiate around elements of its business models”, in order to mitigate the concerns said to have prompted the first defendant’s directions. This is demonstrated by the following:
(a)The plaintiff repeatedly indicating that it was willing to change its name or aspects of its products.
(b)Mr Brill’s evidence that, if there was any reasonable basis for thinking that the plaintiff’s customers were misled, he “would have wished to have the opportunity of taking steps to change the advertising, website presentation or other aspect of the products which were misleading”. If he could have preserved the business by taking such a step, he would have taken it.
(c)The amendments that the plaintiff made to its website and its establishment of a customer call back service in response to the concerns expressed by Mr Chris Gibson.
Third, that the conditions should, in any event, be redrafted on narrower and more precise terms, on the basis that:
(a)the conditions were not aligned with the policy intent of the direction as they departed from the language used therein;
(b)the use of the word “approximates” in the first condition departed from the policy intent of the directions, in that it changed the emphasis from protecting customers who might think they are purchasing a ticket in an actual lottery to an emphasis on protecting customers from making bets on products that approximate a lottery;
(c)the second condition is convoluted, difficult to understand and uses words and phrases that are vague and unclear in meaning [However, the plaintiff did not argue that the second condition lacked reasonable certainty. That ground was confined to the first condition.]; and
(d)the first, second and fourth types of bet stipulated in the second additional condition lack any apparent connection with the idea of purchasing a ticket in a lottery.
In support of the above propositions, the plaintiff relies on the following evidence:
(a)In its detailed written submissions dated 14 February 2020, the plaintiff stated the following.
(i)   It seriously questions the existence of any substantiated reasons for the conditions proposed in the notice.
(ii)    The plaintiff has always been willing to address real and substantiated consumer and policy concerns about its products.
(iii) Given the lack of factual or evidentiary support for the apparent concerns and belief, [the plaintiff] requested further meaningful consultation should occur with it to ensure that the particular apparent concerns are real and consideration be given to actions and responses by [the plaintiff] that are less impactful than the imposition of the conditions.
(iv)   The second condition cannot be reconciled with the policy intent and the original direction which refers to stopping consumers being misled into thinking they are purchasing a ticket in a lottery or a lottery product. The second condition prohibits four types of bet, with only one of those referring to a lottery.
(v)     For the record, [the plaintiff] notes that it is not aware of any substantiated claims by customers that its Jackpot betting products or the manner in which it offers, markets, promotes and supplies them are misleading, deceptive or cause confusion. Indeed, [the plaintiff] has taken steps to deal with initial questions raised by customers who are new to the products.
(b)The first defendant’s letter to the Chairperson of the second defendant dated 20 December 2019 in which she reminded the second defendant to follow the statutory procedures set out in s 92 and s 109H of the Act but then stated:
This will enable me to consider whether to make an adjustment of my direction if the Commission or I consider that any of those representations raise an issue relevant to the efficacy of the implementation of the policy direction.
(c)At the meeting with the second defendant on 26 March 2020, Mr Brill, who was representing the plaintiff:
(i)   spoke about the commercial impact that the additional conditions would have on the plaintiff’s business and stated that the plaintiff would be open to a name change if that was the main issue at hand;
(ii)    stated that to date the plaintiff has not had any contact from the consumer protection agencies about whether their products were misleading; and
(iii) stated, furthermore, if the website is in any way misleading the plaintiff would take the appropriate measures to remove/amend the content.
(d)At the meeting with the second defendant on 26 March 2020, Mr Brown, who was representing the plaintiff also, provided an overview of the measures the plaintiff was prepared to undertake including website changes, marketing messages etc..
The plaintiff submits that its representations contained an unqualified statement that, if the defendants’ concerns were brought forward and identified the aspects of the marketing or product presentation that were of concern, the plaintiff would make changes. If the first defendant was truly concerned about consumer protection then there was at least a possibility of a different outcome if the first defendant had considered the representations set out at [317] to [319] above.
In the face of the second defendant being persuaded by the merits of the plaintiff’s representations, the first defendant closed her mind to them.
Defendants’ submissions
As to ground 5A, the source of the obligation to accord procedural fairness arises in s 19 of the Act. The obligation to accord procedural fairness under s 19 is not freestanding. It depends upon (i) the power or function to which any direction relates; and (ii) the nature, terms and effect of any direction. This is because there are different provisions of the Act to which s 19 relates.
In addition, the relevant direction is the final direction. The first direction was simply a direction to the second defendant to formulate a scheme or a mechanism to implement the desired policy change. There was no obligation to accord procedural fairness while the second defendant was thinking about what it would do. The first direction was overtaken on two occasions, and it is only upon the third and final direction that there was an obligation to accord procedural fairness.
The defendants submit that there is direct evidence that the first defendant considered the plaintiff’s representations.
Quite apart from:
(a)the ordinary inferences available from what was sent between the second defendant and the first defendant (including information provided by the Department to the first defendant) was considered in the ordinary course of Government by the first defendant, and
(b)the terms of the correspondence sent which apparently engages with the substance of the issues being raised by the plaintiff, and others. (So much is reinforced particularly by the first two paragraphs of the letter of the first defendant stamped 2 July 2020.),
the answer to any argument that there was a failure to consider submissions advanced by the plaintiff is the Ministerial sent as the basis for the final decision by the first defendant dated 30 June 2020 and marked and signed on 23 July 2020. It records the first defendant’s consideration of the representations made by the plaintiff and has appended to it the second defendant’s summary and the representations of the plaintiff.
The first defendant’s consideration of the plaintiff’s representations occurred in the following context.
On 18 May 2020, which is before the third direction was made, the second defendant sent the plaintiff’s submission dated 14 February 2020 to the first defendant. It did so by letter. In the same letter, it also sent the first defendant a copy of the plaintiff’s letter dated 28 January 2020.
On 12 June 2020, the second defendant sent the first defendant by letter the plaintiff’s further submission dated 9 June 2020. By 12 June 2020, the first defendant had received all three written representations of the plaintiff.
After the written representations of the plaintiff were received, the first defendant’s Department prepared a Ministerial for the first defendant dated 30 June 2020. The Ministerial also attached all of the written representations made by the plaintiff and the letters from the second defendant to the first defendant. The plaintiff’s written representations contain the plaintiff’s representations about the three issues raised by the plaintiff at [317] to [319] above.
On 23 July 2020, the first defendant recorded on the Ministerial dated 30 June 2020 that she noted the contents of the brief regarding whether to issue a direction under s 19 of the Racing and Betting Act which included the plaintiff’s written representations that made submissions about the three issues raised at [317] to [319] above.
Consideration of ground 5A
An improper exercise of power arises when a decision maker exercises a discretionary power in accordance with a rule or policy without regard to the merits of the case. No one who has to exercise a statutory discretion must shut his or her ears to the representations made by the affected party. The rule requires attention to the facts of each case. A decision maker must give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy. However, care needs to be exercised when considering this ground of review because judicial review does not involve a merits review.
Under the Racing and Betting Act there are two primary ways the first defendant may impose conditions on all sports bookmakers and betting exchange operators in order to regulate the industry. First, conditions may be imposed by regulation under s 148(c) of the Act. Second, as was done in this case, the first defendant may give directions about conditions to the second defendant in accordance with s 19 of the Act. In addition, for the purposes of the Act, the first defendant may give directions to the second defendant about the exercise of his discretion under s 4(2) of the Act to declare an event or contingency to be a sporting event.
In this case, the two additional conditions were to be imposed on all sports bookmakers and all betting exchange operators. The purpose of the conditions was twofold. First, their purpose was to prohibit bookmakers from representing their products as being equivalent to lotteries. Second, their purpose was to prohibit bookmakers from offering and accepting bets that were equivalent to lotteries. The first defendant considered that the conditions served the purposes of fairness, probity and efficiency in the betting market. In my opinion, it was open to the first defendant to form that conclusion. The Commonwealth, Victorian and Queensland Governments shared her view.
The only bookmaker who strongly objected to the imposition of the two conditions was the plaintiff.
The matters raised by the plaintiff at [317] to [319] above are essentially matters that go to the merits of the first defendant’s decision to give the second defendant the final direction. The first defendant was entitled to reject those submissions. The plaintiff did not suggest that her decision to do so was irrational or unreasonable, and it is not for this Court to review the merits of the first defendant’s decision.
So the question becomes did the first defendant genuinely consider the matters raised at [317] to [319] In order to demonstrate that the first defendant had allowed the policy to fetter her decision, the plaintiff primarily relies on the statement in the first defendant’s letter dated 20 December 2019 which is set out at [320](b) above. In addition, some support for the plaintiff’s case is found in the evidence that the first defendant was not prepared to meet the representatives of the plaintiff and she was not prepared to meet with the Chairperson of the second defendant to discuss the second defendant’s views of the merits of the plaintiff’s representations.
After 20 December 2019, approximately six months passed before the first defendant made her final decision. Before making her final decision, the first defendant received all of the plaintiff’s written representations, the minutes of the meeting of the second defendant on 26 March 2020 and a summary of the second defendant’s views of the issues raised by the plaintiff. In addition, the first defendant received a Ministerial dated 30 June 2020 which stated the following:
In considering your final position on whether to confirm or amend your direction under section 19 of the Act, you need to satisfy yourself that you have given due consideration to the objects of the Act and taken into account all relevant considerations.
As set out earlier in this brief, the objects of the Act centre on ensuring the probity and integrity of racing and betting in the Territory, and of persons engaged in racing and betting in the Territory. The objects of the Act also promote fairness, integrity and efficiency in the operations of persons engaged in racing and betting in the Territory.
Considerations that are relevant to giving a direction under section 19 of the Act and which you should take into account, are:
·ensuring the proper regulation and control of sports bookmakers;
·the interests of the public betting by, and with, bookmakers;
·whether products offered by sports bookmakers potentially mislead a consumer and may therefore result in an unfair betting activity;
·the impact of the proposed new licence conditions on all sports bookmakers including those set out by Lottoland in its submissions; and
·that you have afforded procedural fairness to Lottoland and the other sports bookmakers.
On 2 July 2020, the first defendant sent a Cabinet memorandum in confidence to her Cabinet colleagues. In it she stated, among other things, the following:
In exercising my power under section 19 of the Act, I am confident that I have given due consideration to the objects of the Act, taken into account all relevant considerations and afforded procedural fairness to Lottoland and other sports bookmakers. There is sufficient concern that the products offered by Lottoland may risk jeopardising the integrity of wagering in Australia and therefore could be considered inconsistent with the objects of the Act.
[...]
Notwithstanding the likely legal action, I consider that my direction pursuant to section 19 of the Act, and the implementation of the two new proposed licence conditions sits within my power under the Act and is consistent with the objects of the Act (specifically promote probity and integrity in racing and betting in the Territory and to reduce any social impact of betting). I’m also confident that the implementation of the proposed licence conditions accords with the powers of the Commission and that I have had due regard for the issues raised by Lottoland in response to this proposed direction.

In the circumstances, I am not satisfied that the first defendant shut her eyes and ears to the concerns raised by the plaintiff. Ground 5A is not made out.
Orders
I make the following orders:
(1)Declare that the first defendant’s decision of 29 July 2020 to direct the second defendant to vary the plaintiff’s licence by the imposition of the two additional conditions is ultra vires and invalid in so far as it includes the second limb ((a)(ii)) of the First Condition.
(2)Declare that the second defendant’s decision of 7 August 2020 to vary the plaintiff’s licence so as to include the two additional conditions is ultra vires and invalid in so far as it includes the second limb ((a)(ii)) of the First Condition.
(3)Order the second defendant to vary the plaintiff’s licence by deleting the second limb ((a)(ii)) of the First Condition it imposed on the plaintiff’s licence on 7 August 2020.
(4)Otherwise, the plaintiff’s application is dismissed.

---------------------------

[1]Interactive Gambling Amendment (Lottery Betting) Act 2018 (Cth).

[2] [2021] NTSC 80 at [9].

[3] (1963) 109 CLR 59.

[4] Ibid at 69-73.

[5](1945) 71 CLR 184.

[6](1946) 71 CLR 210.

[7] King Gee Clothing Co. Pty. Ltd. v. The Commonwealth (1945) 71 CLR 184 at 194-197.

[8] Cann’s Pty Ltd v The Commonwealth (1946) 71 CLR 210 at 227-228.

[9](1994) 35 NSWLR 33.

[10] Ibid at 41-44.

[11](2013) 216 FCR 214.

[12] Ibid at [87]-[88] and [90].

[13](1982) 57 FLR 368.

[14] Ibid at 374-375.

[15](1932) 47 CLR 1.

[16] Ibid at 7.

[17](2020) 271 CLR 394.

[18] Ibid at [61]-[64].

[19](2006) 228 CLR 566.

[20] Ibid at [59].

[21](1986) 42 SASR 463.

[22] Ibid at 476.

[23] Ibid at 468.

[24] National Aboriginal and Torres Strait Islander Legal Services Secretariat Ltd v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 155 at [34] per Hely J.

[25]Acts Interpretation Act 1978 (NT), s 41(1).

[26]Roads Corporation v Dacakis [1995] 2 VR 508 at 536 per Batt J citing Rathborne v Abel (1964) 38 ALJR 293 at 295 and Ex parte Yuco Pty Ltd [1978] Qd R 235 at 237.

[27](1965) 113 CLR 177.

[28] Ibid at 189-190.

[29] Ibid at 190-192.

[30] Lottoland Australia Pty Ltd v Australian Communications and Media Authority [2019] NSWSC 1041 at [177].

[31]Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 203.

[32]Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59 at 80.

[33] [2019] FCA 1671.

[34] [2012] WASC 247.

[35] [2013] WASCA 288.

[36] Gerner v Victoria [2020] HCA 48 at [28], [30] and [32]-[33].

[37] Victoria v SportsbetPty Ltd (2012) 207 FCR 8 at [244] per Kenny and Middleton JJ.

[38] Betfair Pty Ltd v Racing NSW (2012) 249 CLR 217 at [48].

[39] Ibid at [49].

[40] (2012) 207 FCR 8 at [247].