Citation: Ladbrokes Digital Australia Pty Ltd v Liquor & Gaming NSW [2019] NSWCCA 26
Court: Court of Criminal Appeal, New South Wales
Date: 20 February 2019
Judge(s): Simpson AJA; Wilson J; Lonergan J
Background
The appellant was a licensed wagering operator conducting an online betting business accepting wagers on horse and dog racing and other sporting events. Between March and June 2016, it made two product features available to customers across Australia: "Odds Boost" and "Odds Boost Extra Racing." Both features allowed customers who held, or who opened, a betting account to obtain more favourable odds than those otherwise available, subject to daily or per-event limits.
The appellant advertised these features in the Sydney Morning Herald, on its website, and on its YouTube channel. It was subsequently convicted in the Local Court on 10 counts of publishing gambling advertising that contravened clause 12(1)(h) of the Betting and Racing Regulation 2012 (NSW), which prohibited licensed wagering operators from publishing any gambling advertising "that offers any inducement to participate, or to participate frequently, in any gambling activity (including an inducement to open a betting account)." The convictions were upheld on appeal to the District Court.
At the appellant's request, the District Court judge stated a case to the Court of Criminal Appeal, submitting three questions of law for determination. The clause in question has since been repealed.
Legal Issues
- Whether any of the gambling advertising published was capable of being held to offer an inducement of the kind referred to in clause 12(1)(h).
- Whether advertising a feature that allows a customer to obtain more favourable odds (once per day or once per event), accessible only through holding or opening a betting account, constitutes an offer of an inducement within the meaning of clause 12(1)(h).
- Whether any of the advertising was capable of contravening clause 12(1)(h).
Decision
Simpson AJA (with whom Wilson J and Lonergan J agreed) acknowledged that the phrase "offers an inducement" appeared superficially straightforward, but that the questions raised were "anything but easy," with much to be said on each side. The central interpretive task was to determine whether the Odds Boost features constituted an "inducement" within the meaning of the provision, or whether they formed an integral part of the product being advertised.
The Court accepted the appellant's argument that an "inducement" within clause 12(1)(h) must be something over and above, and separate from, the product or service being advertised. It reasoned that if advertising any attractive feature of a gambling product were prohibited as an "inducement," it would be virtually impossible to advertise any gambling product at all. That outcome would conflict directly with the permission granted to licensed wagering operators under section 30(2) of the Betting and Racing Act 1998 to advertise their products.
Applying that construction, the Court found that the Odds Boost features were an integral part of the appellant's gambling product rather than something extraneous to it. While those features may have attracted customers, they did so because they defined the nature and quality of the product itself. No separate or additional incentive beyond the product was being offered. The Court drew a contrast with the kind of incentive that would clearly be prohibited, such as offering a set of steak knives to induce a person to place a bet.
Accordingly, the Court answered all three questions in the negative and quashed all 10 convictions.
Orders Made
- Question 1 of the stated case: answered "no."
- Question 2 of the stated case: answered "no."
- Question 3 of the stated case: answered "no."
- Each conviction entered in the Local Court and upheld in the District Court was quashed.
Key Takeaways
- Under clause 12(1)(h) of the Betting and Racing Regulation 2012 (NSW), an "inducement" must be something extraneous to, and separate from, the gambling product being advertised; advertising an integral feature of that product does not constitute an offer of an inducement.
- The Court of Criminal Appeal departed from what might otherwise be the ordinary meaning of "offers any inducement" to avoid an interpretation that would effectively prohibit all advertising of gambling products, which would cut across the statutory permission in section 30(2) of the Betting and Racing Act 1998.
- Enhanced odds features, accessible only through an existing or new betting account and forming part of the product itself, did not satisfy the definition of an inducement for the purposes of the prohibition.
- Legislative purpose and context were determinative in resolving the construction question: the Court used those tools to confine the prohibition to external incentives, such as gifts or prizes offered alongside a gambling transaction, rather than product features forming part of the gambling service itself.
- The decision arose from a stated case mechanism under section 5B of the Criminal Appeal Act 1912 (NSW), which permits questions of law from disposed District Court appeals to be referred to the Court of Criminal Appeal, which may then quash convictions or sentences.
Legislation and Cases Referenced
Legislation:
- Betting and Racing Act 1998 (NSW), ss 3, 4, 27, 29, 30, 37
- Betting and Racing Regulation 2012 (NSW), cll 11, 12, 13 (since repealed)
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18
- Racing Administration Act 1998 (NSW)
- Racing Administration Amendment Regulation 2015 (NSW)
- Racing Administration Amendment (Sports Betting National Operational Model) Act 2014 (NSW)
- Trade Practices Act 1974 (Cth)
Cases:
- Betfair Pty Limited v State of Western Australia (2008) 234 CLR 418; [2008] HCA 11
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- The Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153; [1986] FCA 72