1. The disciplinary action comprised issuing the Club with a reprimand, ordering it to pay financial penalties totalling $1,200,000 and placing conditions on its licence.
2. The disciplinary decision has been stayed by order of the Tribunal.
3. The Club applied to the Tribunal for review of the disciplinary decision, and also sought to have a question of law referred to the Supreme Court under section 84 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). That question, as revised by the Club (the Question of Law), is:

Is a contravention by a licensee of section 62A of the Regulation a contravention of the Act for the purposes of section 57(1)(c) of the Act?

1. The Club relied upon a witness statement of Mr Boon, a solicitor for the Club, and a folder of materials in support of its referral application.
2. The Commission neither opposed nor consented to the Club's application to refer the Question of Law to the Supreme Court.
3. I am satisfied that the Question of Law raises an issue of public importance, enlivening the Tribunal's power to make a referral. However, I have decided not to exercise my discretion to refer the Question of Law to the Supreme Court. My reasons for that decision include: that it is likely that a referral would delay the tribunal proceedings; there is no uncertainty about licensees' obligation to comply with the Regulation; the Club's statutory construction argument does not appear, at this stage, to be a strong one; and I am not persuaded that a referral would be likely to save significant time and costs.

1. Section 57(1)(c) of the Act relevantly provides that a ground for disciplinary action against a licensee is that "the licensee ... has contravened this Act". The Commission relied upon this provision to take disciplinary action against the Club on the basis of alleged contraventions of the Regulation.
2. The Club submitted to the Commission, before the Commission made its disciplinary decision, and it now submits in the tribunal that, on its proper construction, section 57(1)(b) applies only to contraventions of the Act, and does not apply to contraventions of the Regulation. In its reasons for decision, the Commission rejected this submission on the basis that section 104 of the Legislation Act 2001 (Legislation Act), when read with subsections 5(3), 6(1) and 6(3) of that Act, created a presumption that a reference in an ACT law to a law included a reference to statutory instruments made or in force under the law.
3. The Club contended that this approach was erroneous. It submitted that the Regulation "does not, in any ordinary sense, form part of the ... Act." It disputed that the presumptive position arose in this case, but said that, if it did, it was displaced by a contrary intention.
4. At the hearing, Mr Oram, counsel for the Commission, informed the Tribunal that the operation of section 104 of the Legislation Act had been considered by a Master of the Supreme Court in Edwards v Woolworths Ltd [2009] ACTSC 4 at [11]-[14], and by three members of the Supreme Court in Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110 at [33] to [35]. I would add that the Court of Appeal has considered the provision in Legal Practitioner v Council of the Law Society of the ACT [2018] ACTCA 26 at [76].
5. Mr Oram accepted that there has been no judicial consideration of whether the Act evinces a contrary intention to section 104(1) of the Legislation Act, such as to displace section that provision,[1] that intention being that the reference to "this Act" in section 57(1)(c) of the Act does not include a reference to the statutory instruments made or in force under the Act.
6. The parties agree that, if a contravention of clause 62A of the Regulation does not give rise to a contravention of the Act, within the meaning of section 57(1)(c) of the Act, there was no ground for disciplinary action arising from the alleged contraventions of the Regulation. They also agree that the question of whether a contravention of the Regulation gives rise to a contravention of the Act so as to enliven grounds for the taking of disciplinary action under the Act has not previously been authoritatively determined.

Should the Tribunal refer the Question to the Supreme Court?

If the tribunal considers that a question of law that arises in considering an application or an appeal raises an issue of public importance, the tribunal may refer the question to the Supreme Court.

1. As the Club accepts, the power to refer a question of law to the Supreme Court is a discretionary one.

Does the Question of Law raise an issue of public importance?

1. The Club submits that the Question of Law raises a significant issue of public importance concerning the scope and power of a key regulatory body to exercise its substantial disciplinary powers, and specifically whether it can exercise such powers in respect of contraventions of regulatory provisions created by executive act.
2. The Commission's position is that the issues raised are not of sufficient public importance to warrant the Question of Law being referred to the Supreme Court.
3. The meaning of the term "public importance" in section 84 of the ACAT Act has not been judicially considered, as far as I am aware. It has, however, been considered in a number of other contexts. In Wilson v McDonald [2009] WASCA 39, Martin CJ of the Western Australian Court of Appeal considered whether a decision appealed against "involved a point of law of exceptional public importance," within the Criminal Appeals Act 2004 (WA), as that was a factor relevant to a discretion to award costs. His Honour observed:

The expression "public importance" comprises words of plain and ordinary meaning. The expression connotes that the point of law must be of importance to the public. There are many ways in which a point of law might meet that description. One is through its capacity to affect a large number of people: see for example Mastrangelo v Reynolds [2001] WASCA 347; (2001) 25 WAR 133 [55]. Another might be the significance of the point to the maintenance of public order. It is neither possible nor desirable to attempt to exhaustively define the circumstances in which a point of law might meet that simple description.

1. I respectfully adopt his Honour's exposition of the meaning of the expression "public importance," which, in my view, also applies to the meaning of that expression in the Act.
2. The term also appears in section 35A of the Judiciary Act 1903 (Cth). That section provides for matters the High Court must consider when determining a special leave application. One of those matters is whether the relevant proceedings raise a question of law that is of public importance. In Smith Kline and French Laboratories (Aust) Ltd v Commonwealth [1991] HCA 43 (Smith Kline) at [36], seven members of the High Court commented, after referring to that provision:

To that extent at least, the Court, in exercising its jurisdiction to grant or refuse special leave to appeal, gives greater emphasis to its public role in the evolution of the law than to the private rights or interests of the parties to the litigation: Morris v. The Queen [1987] HCA 50; (1987) 163 CLR 454, per Dawson J. at p 475.

1. In ViaSat Inc v Hansen Yuncken Pty Ltd [2024] NSWSC 1581 (ViaSat Inc), Rees J considered whether the court should grant leave to appeal an arbitral award. A statutory provision provided that the Court must not grant leave unless satisfied that "the question is one of general public importance." Rees J commented at [14]:

The criterion of "general public importance" directs attention not to the interests of the parties but to the public interest in clarifying questions of law which will have a general application: Ottoway Engineering Pty Ltd v ASC AWD Shipbuilder [2017] SASC 69 at [122] (Blue J). Questions of law which are obviously important to the arbitrating parties may not meet this description, but may be commercially unique to the parties and their particular circumstances,...

1. Having regard to what was said in Smith Kline and ViaSat Inc, I consider that the criterion of "public importance" in section 84 of the ACAT Act is to be approached having regard to the Supreme Court's role in clarifying questions of law which will have a general application, regardless of the importance of the question to the parties to the proceeding.
2. I am satisfied that the Question of Law raises a question of public importance. The question of whether licensees under the Act may be disciplined for a breach of the Regulation has significance to the public at large. There is a public interest in ensuring compliance with the gaming legislation and also in clarifying the scope of matters for which a licensee may be disciplined. Disciplinary powers are conferred as public powers to be exercised in the public interest. It follows that the question of whether a licensee may be fined, reprimanded or otherwise disciplined for contravening offence provisions in the Regulation is of public importance.

1. The Club said there were discretionary factors in support of the Tribunal referring the Question of Law to the Supreme Court.
2. The Club submits that it is important that the Question of Law be authoritatively resolved as soon as possible, so as to create certainty for the Commission and licensees as to the scope of the Commission's power to take disciplinary action.
3. Mossop, Baker and Taylor JJ made some relevant observations in Legal Practitioner v Law Society of ACT [2024] ACTCA 17 (Legal Practitioner) about the principles the tribunal is to apply when determining whether to refer questions of law to the Supreme Court. In that case, the Tribunal had referred a question of law to the Court which arose in disciplinary proceedings against a legal practitioner. The Court stated:[2]

[20] It must be observed that the effect of referring these questions to the Supreme Court under s 84 of the ACAT Act has had the effect of fragmenting and delaying the disciplinary proceedings which were commenced in 2021.

[21] The reasons for the referral by the ACAT are not clear. The appellant was the party that proposed the referral. The Law Society neither consented to nor opposed that course. Given that a condition for the exercise of the power to refer a question of law under s 84 is that it "raises an issue of public importance", the ACAT must have been satisfied that was the case.

[22] It has been recognised in a variety of contexts that great care should be taken in deciding whether to determine questions or issues separately from the substance of proceedings. For example, in Tepko Pty Ltd v Water Board; [2001] HCA 19; 206 CLR 1 at [168] , Kirby and Callinan JJ said: "The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory ...". There are a variety of reasons why this can be so. In the present case, it is because of the potential that the answers to the separate questions do not resolve the proceedings and substantially delay the determination of the substantive issues in the case.

[23] Even where a question of law raises an issue of public importance, caution must be exercised when considering a referral of a question to the Supreme Court. It is not uncommon for proceedings in the ACAT to raise important issues of statutory interpretation. Any decision to refer such a question to the Supreme Court must pay appropriate regard to the need to finally determine the case at hand and to avoid having the proceedings fragmented and delayed.

[24] It is most unfortunate that a disciplinary matter, the purpose of which is to protect the public, has been dealt with in this way when, had the matter simply been heard and determined by the ACAT, a final determination of all issues in the proceedings could have been made some time ago. That final determination might then have been subject to an appeal through the ordinary mechanisms.

1. The Club sought to distinguish its referral application from that considered by the Court of Appeal in Legal Practitioner.
2. First, it said that disciplinary action has already been taken by the Commission against the Club, whereas in Legal Practitioner, disciplinary action was sought in the tribunal proceeding itself. The referral of the question in Legal Practitioner, it was said, delayed the decision as to whether disciplinary action should be taken at all.
3. Whilst that may be so, it is not a strong reason in support of referring the Question of Law to the Supreme Court. A referral in these proceedings would delay the tribunal's decision as to what is the correct and preferable decision on review. It would effectively delay the tribunal making a decision about disciplinary action, just as the referral in Legal Practitioner had that effect.
4. Secondly, the Club says that the Question of Law is an untested question of statutory construction with wide potential consequences beyond this case, whereas the questions referred in Legal Practitioner were confined to the factual circumstances of the case.
5. That position needs some qualification. The referred questions in Legal Practitioner were framed in terms specific to the facts in that case. However, the court recognised that the "essential contention" in Legal Practitioner was whether the Law Society was precluded from initiating disciplinary action in the tribunal where that action included a charge arising out of conduct the subject of a complaint which had earlier been dismissed by the Law Society.[3] That question has a broader application than to the facts of the case in question.
6. Thirdly, the Club submits, and I accept, that the Question of Law does not involve any issues of fact. This diminishes the degree of fragmentation of the proceedings and, I accept, is a factor distinguishing this case from Legal Practitioner.
7. Fourthly, the Club says that the referral of the Question of Law should not cause undue delay. The Club submitted that any delay to the conduct of the proceeding occasioned by the referral of the Question of Law would be relatively minor and that no substantive prejudice would be occasioned to either party, or to the public interest, by reason of any minor delay.
8. Mr Potts SC submitted for the Club, and Mr Oram accepted for the Commission, that the Supreme Court hearing of the question would take no more than half a day. It was also submitted by Mr Potts SC that the referral may ultimately save time and cost, by authoritatively resolving the Question of Law at the outset. The Club said that if the Question of Law were resolved in the negative, 45 grounds of disciplinary action would fall away, saving the tribunal and the parties substantial time and cost.
9. Mr Oram's position was that there may not be any reduction in the evidence the Commission adduces, even if the 45 grounds of disciplinary action were to fall away. That is because the second category of disciplinary offences the subject of the Commission's decision, relating to the Club's alleged failure to record events in the problem gambling incidents register, include a failure to record multiple EFTPOS withdrawals in that register. That evidence would overlap with the evidence relied upon to establish a contravention of the Regulation.
10. There is no guarantee that a referral of the Question of Law would cause only "minor delay." There is no evidence as to how long it would take to have the matter listed for hearing in the Supreme Court. It may then take some time for a judgment to be delivered. There is also the possibility of an appeal against any Supreme Court decision.
11. It is true, as the Club submitted, that referring the Question of Law could save time and cost in the tribunal if the Supreme Court found that the Commission has no power to take disciplinary action in respect of a contravention of the Regulation. That is a factor in favour of referral to which I have given some weight. However, I have also taken the Commission's position into account in assessing how much time and cost could be saved by the referral, if the Question of Law were to be resolved in the Club's favour. Having regard to the overlap in subject matter between the two categories of disciplinary grounds, I am of the view that the savings in time and cost would likely not be as significant as the Club suggests.
12. The Club submitted that the present uncertainty of not knowing whether licensees may be subject to disciplinary sanctions for breaching the Regulation was a consideration in favour of referral, because a referral would allow that question to be determined authoritatively. The question is whether a licensee is only subject to criminal penalties for contravening clause 62A(2) and (4) of the Regulation and other provisions of the Regulation,[4] or whether the licensee is also subject to disciplinary penalties for such contraventions. That is, to the extent that there is uncertainty, it does not extend to the conduct in which a licensee must not engage. Irrespective of whether the Commission has power to take disciplinary action for contravention of the Regulation, the licensee is required to comply with the Regulation. That means that the present state of uncertainty is mainly detrimental to licensees where disciplinary action is taken against them on the basis of an alleged breach of the Regulation. There is no evidence that that has occurred in any other cases.
13. Another discretionary factor to consider is the strength of the Club's submission that the Act evinces an intention that section 104(1) of the Legislation Act does not apply. Mr Potts SC submitted that, as long as the Tribunal was satisfied that the Club had identified an arguable question of law, that was sufficient to make the referral. Mr Oram, for the Commission, submitted that it was open to the Tribunal to have regard to the prospects of the Question of Law (and, presumably, to the prospects of the Club's submissions in relation to that question).
14. I accept the Commission's submission that the strength of the submission giving rise to a question of law is a relevant factor when deciding whether to refer the question of law to the Supreme Court. In the present case, my view, on the material available to the Tribunal at present, is that the submission is not strong. The Commission has set out the Club's submissions on this matter in its reasons for decision, and the Club has also, to a limited extent, outlined those submissions before the Tribunal. The Club has not yet had an opportunity to develop those submissions in detail. The view I express about the Club's construction of section 57(1)(c) for the purposes of determining its referral application is a provisional view.
15. One submission made by the Club in support of its preferred construction of section 57(1)(c) is that the power of the Executive to make regulations and create offences for contraventions of those regulations is subject to a significant limitation on the penalties that could be imposed by the regulations (evidencing an intention to limit and constrain the penalties that may be imposed by the Executive).
16. The Club submits that disciplinary action under section 57(1)(c) of the Act carries far more significant available penalties against a licensee than those permitted to be made for offences to a criminal standard under the Regulation. That is because of the effect of section 178(3) of the Act, which provides: "A regulation may create offences for contraventions of the regulations and fix maximum penalties of not more than 30 penalty units for the offences." That provision previously, and at relevant times, precluded the regulations from creating offences with maximum penalties of more than ten penalty units.
17. The circumstance that the offences in the Regulation could impose, at relevant times, a maximum penalty of ten penalty units is not determinative of the construction of section 57(1)(c) (and I do not understand the Club to have submitted that it is). The Act contains an offence, in section 151(3) of the Act, of a licensee failing to comply with a requirement to display a warning notice. The maximum penalty for that offence is five penalty units. There is no question that disciplinary action could be taken against a licensee in respect of a contravention of section 151(3) of the Act under section 57(1)(c) of the Act.
18. As the Commission submitted, the Supreme Court has considered the meaning of section 104 of the Legislation Act on a number of occasions. On none of those occasions has it found a contrary intention in the Act in question. That, of course, does not mean that it would not do so in this particular case.
19. The Club's construction of the words "contravened this Act" in section 57(1)(c) of the Act as not encompassing a contravention of the Regulation is difficult to reconcile with the note to section 58(3) of the Act. Section 58(1)(a) provides that reprimanding a person is a disciplinary action when taken against a person. Section 58(3)(a) provides that a reprimand may include a direction by the Commission that the licensee, within a stated time, "cease contravening this Act." Note 1 to section 58(3) (Note 1) provides:

Note 1 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).

1. The provision in section 58(3)(a) for the Commission to direct that a licensee "cease contravening this Act" appears to pick up the ground for disciplinary action in section 57(1)(c), being that "the licensee ... has contravened this Act." Note 1 is not part of the Act (unless a contrary intention appears).[5] However, in working out the meaning of the Act, material not forming part of the Act contained in an authorised version of the Act (such as Note 1) may be considered.[6] That is, Note 1 may be considered in working out the meaning of both section 57(1)(c) and section 58(3) of the Act.
2. There is a presumption that terms are used consistently within an Act.[7] Accordingly, if the words "cease contravening this Act" in section 58(3) of the Act applied to a contravention of the regulations, having regard to Note 1, a presumption would arise that the words "contravened this Act" in section 57(1)(c) of the Act also refer to a contravention of regulations made under the Act. There may, of course, be an argument that that presumption has been displaced.
3. I have not formed a final view about the proper construction of section 57(1)(c) of the Act. However, the considerations to which I have referred above lead me to conclude, for the purposes of determining the referral application, that the Club's prospects of persuading the Court to accept its construction are not strong. That means that there is a significant risk that a referral to the Supreme Court would delay the tribunal proceedings without any corresponding benefit in reducing the amount of time taken for the tribunal to hear the proceedings, or the amount of evidence required.
4. I have taken into consideration the Court of Appeal's statement that a decision to refer a question of law to the Supreme Court must pay appropriate regard to the need to finally determine the case at hand and to avoid having the proceedings fragmented and delayed. I have also taken into account its admonition that caution must be exercised when considering a referral of a question to the Supreme Court.
5. I respectfully agree with the Court of Appeal's observation that it is not uncommon for proceedings in the ACAT to raise important issues of statutory interpretation. A similar point was made by Presidential Member McCarthy when considering a referral application. He observed:[8]

Statutory interpretation is a task routinely conducted by the Tribunal, especially when hearing applications for review of a decision made under an enactment - as this is. Also, there was no suggestion of any impasse between prior inconsistent Tribunal decisions concerning the question posed. The question was no more than a further preliminary issue raised by the applicant. I could see no legitimate reason why the Tribunal should not itself decide the question in the ordinary discharge of its statutory function.

1. I take the same view in this case.
2. In light of all of the matters discussed above, I have decided not to exercise my discretion to refer the Question of Law to the Supreme Court. I am not persuaded that a referral would ultimately save the parties or the tribunal significant time or costs, and it would likely delay the determination of the proceedings before the tribunal. For these reasons, I have decided to dismiss the Club's referral application.
3. The matter will be listed for a directions hearing so that the Tribunal may make directions to prepare the matter for hearing.

[1] See Legislation Act s 6(3)

[4] See, for example, Regulation cl 25(1) and 28(1)

[5] Legislation Act s 127(1)

[6] Legislation Act s 142(1)

[7] See, for example, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19 at [25]

[8] Jolley v Construction Occupations Registrar [2022] ACAT 47 at [20]