HELLENIC CLUB OF CANBERRA LTD v ACT GAMBLING AND RACING COMMISSION... [2026] ACAT 43 | Case summary

HELLENIC CLUB OF CANBERRA LTD v ACT GAMBLING AND RACING COMMISSION... [2026] ACAT 43 | Case summary | Zoe

……………………………….. Acting Presidential Member G Curtin SC For and on behalf of the Tribunal Introduction............................................................................................................................... 1 The administrative background ................................................................................................ 2 The issues before the Tribunal .................................................................................................. 4 Brief background ...................................................................................................................... 5 Problem gambling................................................................................................................... 16 The regulatory obligations .................................................................................................. 16 The behavioural indicators which may suggest problem gambling ................................... 20 Awareness rather than knowledge ...................................................................................... 22 Attribution of awareness for corporations .......................................................................... 23 Aggregation of awareness for corporations ........................................................................ 23 The expert evidence in relation to problem gambling ........................................................ 24 Emeritus Professor Blaszczynski .................................................................................... 24 Professor Delfabbro ........................................................................................................ 26 Conclusions drawn from the expert evidence ..................................................................... 29 The pre-hearing dispute as to the issues to be decided ........................................................... 29 The principles of statutory interpretation ............................................................................... 33 The interpretation of the provisions concerning problem gambling ...................................... 35 The Commission’s submissions ......................................................................................... 35 The Club’s submissions ...................................................................................................... 43 Decision .............................................................................................................................. 48 Meaning of “gambling problem” .................................................................................... 48 What is a “problem gambling incident” ......................................................................... 48 Awareness is required ..................................................................................................... 49 The meaning of “becoming aware of” ............................................................................ 51 What are the “signs of having a gambling problem” ...................................................... 58 Aggregation .................................................................................................................... 62 Conclusion .......................................................................................................................... 65 Some further observations .................................................................................................. 67 Factual findings – problem gambling incidents ..................................................................... 69 The interpretation of the provisions concerning EFTPOS transactions ................................. 71 Is a breach of the GMR a breach of the GMA .................................................................... 73 The Commission’s submissions ..................................................................................... 73 The Club’s submission ................................................................................................... 74 Decision .......................................................................................................................... 76 The proper interpretation of r 62A(3) of the GMR............................................................. 77 The Commission’s submissions ..................................................................................... 81 The Club’s submissions .................................................................................................. 81 Decision .......................................................................................................................... 82 Factual findings - EFTPOS..................................................................................................... 85 Orders ..................................................................................................................................... 85 Annexure A ............................................................................................................................. 87 REASONS FOR DECISION Introduction 1. The central issue in this case was the proper interpretation of certain provisions in the legislation and statutory instruments (the regulatory framework or framework) which regulates gambling in the Australian Capital Territory (the ACT), and in particular the obligations of licensees in relation to the recording of problem gambling incidents and limits on EFTPOS transactions.

On 19 March 2024, the applicant (the Club), being a licensee for the purposes of the Gaming Machine Act 2004 (the GMA), was issued with a disciplinary notice under section 60 of the GMA by the respondent (the Commission) for alleged breaches of both the GMA and the Gaming Machine Regulation 2004 (the GMR). The breaches were alleged to have been committed between December 2017 and March 2020.
In a Notice of Decision dated 17 December 2024 (the Decision) the Commission found that the breaches had been proved and issued the Club with a reprimand, imposed financial penalties of $1.2 m and ordered that conditions be placed on the Club’s licence.
The Club commenced proceedings in the tribunal for the Tribunal to review the Decision and sought orders to set aside the Decision in whole or in part.
In short, the Commission alleged that the Club breached its legal obligations in two general areas: gaming machine gambling engaged in by Marlene and Raimo Kasurinen (Mr and Mrs Kasurinen, or the Kasurinens), and a number of EFTPOS withdrawals made by Mrs Kasurinen.
As to the first area, the Commission alleged that between December 2017 and March 2020 the Club failed to record “problem gambling incidents” involving either Mr or Mrs Kasurinen, or both, and which occurred on 28 specified dates.
The Commission alleged that Mrs Kasurinen exhibited signs of having a gambling problem on 27 of the 28 specified dates, the Club was aware of those signs, those signs amounted to “problem gambling incidents” under the applicable law and the Club failed to record those incidents in the relevant online register as required. The same general allegations were made in relation to Mr Kasurinen, but only for two specified dates (one date being the same as for Mrs Kasurinen).
The Club denied the Kasurinens exhibited the alleged signs of problem gambling, denied the Club was aware of them (if the Kasurinens did exhibit them) and denied that those signs (if they existed) amounted to problem gambling incidents that were required to be recorded in the register.
The second area concerned 45 EFTPOS withdrawals effected by Mrs Kasurinen at the Club and made on 30 specified dates between December 2017 and January 2020.
The GMR prohibited EFTPOS “cash withdrawals” totalling more than $200.
The Commission alleged that the Club breached the GMR in effecting multiple, immediately consecutive $200 EFTPOS transactions (we use ‘transactions’ neutrally) with Mrs Kasurinen, the total of those immediately consecutive transactions being between $400 and $1,000.
The Commission submitted that multiple, immediately consecutive $200 transactions in effect amounted to one “cash withdrawal” for a sum greater than $200 and was therefore a breach of the GMR.
The Club submitted that as long as each $200 transaction was completed both physically and electronically before the next was commenced, then each transaction was a separate withdrawal for the purposes of the GMR and there was no breach of the GMR.
In these reasons we have summarised the parties’ contentions and submissions. Our summary will not do justice to the quality of the submissions, but we have considered them in their entirety in reaching our conclusions.

The proceedings in the Tribunal were split into two stages: breach and characterisation (Stage 1) and penalty (Stage 2). These reasons concern Stage 1.
What was ultimately in issue before us in Stage 1 concerning problem gambling incidents was the subject of dispute between the parties before and up to the commencement of the hearing. After hearing submissions on the first day of the hearing, we made a ruling on the morning of the second day as to what was and was not in issue in Stage 1 and said we would give reasons for that ruling in these reasons. We shall set out that ruling and our reasons for it later in these reasons after we have set out matters necessary to understand the ruling and the reasons for it.
The result of the ruling was that the issues in Stage 1 concerning problem gambling incidents were broadly: (a) the proper interpretation of certain problem gambling provisions of the regulatory framework and, in particular: (i) what is a problem gambling incident; (ii) what are the signs of problem gambling; (iii) is awareness of those signs by the Club required to trigger the reporting obligations; (iv) if awareness is required, what is the nature and scope of the awareness of those signs that triggers the reporting obligations; (v) can awareness of different signs of problem gambling by different employees of a licensee corporation such as the Club be aggregated so that the Club would be held to have been aware of all signs; and (b) whether the Club breached the framework in relation to the recording of problem gambling incidents on some or all of the 28 dates alleged by the Commission.
The issues in Stage 1 concerning the EFTPOS transactions were broadly: (a) whether a breach of the GMR was a breach of the GMA; (b) whether multiple, immediately consecutive EFTPOS transactions were one withdrawal or were multiple, separate withdrawals for the purposes of the GMR; and (c) whether the Club breached the EFTPOS provisions of the GMR on some or all the occasions alleged by the Commissioner.
In these reasons we shall decide the legal issues first (at [24a], [25a] and [25b] above). We shall then say something about the factual issues (at [24b] and [25c] above).
We shall also provide brief reasons for the ruling referred to at [23] above.

The Kasurinens met in 1980 and married in 1985.
At the time of their marriage, Mrs Kasurinen already had two daughters, Vanessa and Vanora, from a previous relationship.
The Kasurinens lived in a house at Duffy in the ACT and owned and operated a waterproofing business known as KKS Waterproofing which operated out of rented commercial premises in Fyshwick. Mr Kasurinen did the physical work and Mrs Kasurinen managed the financial and accounting aspects of the business.
In 2001, tragedy struck when Vanora was murdered. Understandably, the Kasurinens were devastated. Thereafter, Mrs Kasurinen suffered from long periods of depression, and both suffered from sadness and loneliness.
Vanessa Kasurinen joined the NSW Police Force in 2003 and was transferred to Burwood Police Station in 2007. Prior to that transfer she and her daughter from her first marriage, Ashley, had been living with or very near to the Kasurinens and saw them most days.
After her transfer to Burwood, Vanessa remained in daily telephone contact with her parents. She often spoke to Mrs Kasurinen multiple times per day. During those telephone calls Mrs Kasurinen would occasionally break down and mention that she was sad and lonely since Vanora’s death and Vanessa’s move away from Canberra.
The strong impression from the evidence is that the Kasurinen family was a close-knit family, and family was critical and central to the Kasurinens’ lives.
Vanessa met and married David Chambers, then a Detective Sergeant in the NSW Police Force. Ashley changed her last name to Chambers, and they had two more daughters. For ease of reference, we shall refer to members of the Chambers family by their first name.
After Vanessa’s transfer to Burwood in 2007, she and David were busy with two fulltime jobs and young children. They were only able to visit the Kasurinens in person in Canberra three or four times per year. The Kasurinens missed Vanessa, David and their grandchildren.
The Kasurinens became members of the Club in about 2008.
Before and after 2008, the Club had and has premises at Woden which contains facilities for the use of members and their guests. Included in those facilities during the relevant period were approximately 250 gaming machines. They were in what was called the gaming area.
Mrs Kasurinen said that from about 2008 she and Mr Kasurinen attended the Club one or two times per week. When they attended the Club they would have meals, play the gaming machines and enter raffles conducted by the Club. As reported by Vanessa, socialising at the Club brought some pleasure to the Kasurinens who were otherwise often sad and lonely.
The Kasurinens met a staff member, George Kazias, who Mrs Kasurinen recalled describing himself as a Duty Manager at the Club. Mr Kazias said he was a Beverage Manager in 2008, but he became a Duty Manager in 2016 and then became the Customer Service Manager in April 2017. He said he first met the Kasurinens in 2014.
When exactly Mr Kazias first met the Kasurinens is not relevant to the issues in this case as it is common ground that at the time of the relevant events (December 2017 – March 2020) Mr Kazias was employed by the Club as the Customer Service Manager.
When they attended the Club the Kasurinens felt welcomed. Indeed, they felt more welcomed at the Club than at other clubs they attended from time to time.
When Vanessa and David visited from Sydney, they would often socialise with the Kasurinens at the Club rather than at the Kasurinens’ home. This was at the Kasurinens’ request. Often, they would meet at the Club for dinner, and often the Kasurinens would stay at the Club to play the gaming machines after Vanessa and David left to return to their accommodation. This caused Vanessa some disquiet, but the Kasurinens’ attendance at the Club seemed to bring some happiness to her parents and, being aware of their sadness and loneliness, Vanessa did not say anything at the time.
In 2012, the Kasurinens purchased an off-grid property near Tuena in NSW, about 145 km north of Canberra. They planned to retire to that property at some point in the future.
At about this time the Kasurinens, outwardly at least, had the appearance of modest financial success. They owned a business which appeared to be thriving, they had bought and sold a small number of residential investment properties at an apparent profit, they had purchased the Tuena property, and they owned several private and business vehicles.
The evidence does not disclose whether this outward appearance was accurate because the evidence of their financial position was incomplete. For example, in addition to the absence of tax returns, and while there was some evidence of the sale of a few residential investment properties for sums greater than the purchase prices, there was no evidence of the borrowing and other costs involved and whether, after taking into account those matters, the Kasurinens made a profit or loss on those investments.
Similarly for their business, KKS Waterproofing. There were no financial statements, tax returns or other evidence to determine whether this business was financially successful or otherwise at any point in time.
There was some evidence which suggested the Kasurinens’ finances were not as healthy as the family thought from at least 2010 because from that time (until 2015 at least) Mrs Kasurinen frequently asked Vanessa for cash loans of between $5,000 and $10,000.
Whatever the true position, it is probable that the Kasurinens’ financial position in 2020 was significantly worse than it had once been. Electronic records for carded play (when the member’s membership card was inserted in a gaming machine) reveal that the Kasurinens lost at least $345,000 on the gaming machines between October 2012 and February 2020. Gaming machines could be played without a membership card being inserted (uncarded play), and there was evidence the Kasurinens engaged in uncarded play on occasions (Mrs Kasurinen estimated it was about 60% of the time) but in the absence of a membership card being inserted into gaming machines no gaming data was (or could have been) collected for any individual member.
It was suggested at times that Mr and Mrs Kasurinens’ gambling at the Club was the cause of their financial decline. However, we are unable to say whether that was the only cause of their financial decline because the evidence of their personal and business’s financial positions over time (and especially between 2012 and 2020) was not complete. What the evidence does allow us to say is that the losses from carded play would have been a cause in their financial decline. If Mrs Kasurinen’s estimate of how much she gambled on uncarded play was accurate, and assuming similar losses, the contribution to their financial decline would have been all the greater.
Returning to the narrative, Mrs Kasurinen said that from about 2014 she and her husband began to stay longer when they attended the Club and would play the gaming machines from after dinner time until midnight or 1am the following day.
On 3 December 2014, Mrs Kasurinen’s brother (her last living relative outside her immediate family) died.
In 2015, the Kasurinens discovered that their home was a Mr Fluffy house. It was subsequently purchased by the ACT Government. The Duffy home had been the centre of Mr and Mrs Kasurinen’s family and social life, and its loss was very distressing for them.
At about the same time they rented new commercial premises at Fyshwick which had a garage style storage facility on the ground floor, an office on the upper floor and a single room with a locked door. This room was large enough for a queen size bed and a small walking space. The premises had no loungeroom, dining room or kitchen. It was an office space not designed for residential use. Nevertheless, the Kasurinens moved into these commercial premises to live.
After leaving the Duffy home, the Kasurinens divided their time between the Fyshwick premises and the Tuena property. Mr Kasurinen told Vanessa they were living in the Fyshwick property temporarily as it was a chance for them to save money before they retired.
Mrs Kasurinen said that in or about 2017 she began feeling distressed. She felt that everything hit her all at once.
Mrs Kasurinen said that during 2017 she and her husband went to the Club more often than previously, being up to and over three times per week. She said that they would generally arrive at around 5:30pm and have dinner at about 6:30pm or 7:00pm. Dinner was often paid for by the Club. Neither Mr nor Mrs Kasurinen were drinkers, but they would usually have one alcoholic drink when at the Club, and this was also often paid for by the Club. This made Mrs Kasurinen feel special.
Mrs Kasurinen said that after dinner, she and her husband would play the gaming machines for a long period of time, mostly late into the evening and sometimes into the early morning. Sometimes Mrs Kasurinen would stay on until the Club closed at around 4:00am. At times she would play the gaming machines for longer periods when she had lost money in the hope that things would turn around.
As we have mentioned, the alleged breaches occurred between December 2017 and March 2020. It is useful to now set out some data relating to that period.
Membership cards were used at the Club in several ways. We have referred to them being inserted in gaming machines above, but they were also swiped on entry to the Club. An electronic record would thus be created recording the member’s attendances at the Club.
The Club’s attendance records reveal the following total attendances for Mr and 3 Mrs Kasurinen for the period 2012 until the end of February 2020:

Tables 1 and 4 above corroborate Mrs Kasurinen’s evidence that from about 2017 she and her husband went to the Club more often than previously (the data shows the increase may have started in 2016).
Mrs Kasurinen’s evidence was that as her attendances at the Club increased, she felt she was part of a community. On arrival, the Kasurinens would often be greeted by a staff member with a hug and a compliment, many of the Club staff knew them by name and would greet them by name when they were in the Club. She felt welcomed and valued by the Club staff.
Very often the Club would pay for any meals and drinks consumed by the Kasurinens, and Mrs Kasurinen became a top tier member in the Club’s rewards program, received preferential parking permissions and was recorded in internal Club reports as being amongst the Club’s Top Twenty gamblers.
Mrs Kasurinen said she and her husband often took cash to the Club to use in the gaming machines, she often played two or three gaming machines at once (although her membership card could only be in one machine at a time). She said that she estimated that her membership card was inserted for about 40% of the time she used gaming machines. She often did not insert her membership card for superstitious reasons.
Mrs Kasurinen described her gambling habits in generalised terms, but she did not (and probably could not) give evidence as to what she did on the 28 precise dates which are the subject of these proceedings in terms of problem gambling incidents except for Father’s Day in 2019.
Between about September and November 2019, Mrs Kasurinen said she and her husband discussed not going to the Club anymore as they were losing a lot of money, and they decided to slow down going to the Club. The available records corroborate this assertion, at least for a couple of months.
On 17 September 2019, Mr and Mrs Kasurinen were evicted from the Fyshwick premises due to non-payment of rent. They moved to residential premises in Farrer, ACT, shortly thereafter.
Records reveal that Mrs Kasurinen did not go to the Club at all in October 2019, and she went only three times in November. Mr Kasurinen went to the Club once in October 2019 and twice in November.
The Chambers family, and particularly Vanessa, David and Ashley, had been concerned about the Kasurinens’ gambling for some time, and these concerns increased in 2019.
By late 2019, Ashley was 22 years of age, and she had been very close to the Kasurinens since she was young. She moved to Sydney with Vanessa in about 2007 but returned to Canberra for about 18 months when she turned 18 (in 2015). When she returned to live in Canberra, she would often visit the Kasurinens and often went with them to the Club and the gaming room. When she left Canberra at the end of those 18 months, she remained in close contact with the Kasurinens by telephone.
In November 2019, Vanessa, David and Ashley, discussed between themselves what, if anything could be done, about the Kasurinens’ perceived excessive gambling. The Kasurinens’ gambling caused the Chambers family much distress and worry, but they could see that the Kasurinens’ visits to the Club brought them some joy when little else did at that time. They were reluctant to intervene, because doing so risked diminishing one of the few sources of joy in the Kasurinens’ lives and risked damaging the emotional bonds existing between them.
In their evidence to the Tribunal the Chambers family considered that they acted incorrectly in not seeking to intervene in the Kasurinens’ gambling earlier, but they are too harsh on themselves. That judgment has only been reached with the benefit of hindsight, something unavailable to them in 2019. Most people would have acted no differently in the circumstances they found themselves at the time, they were in a very difficult position, and their decisions were motivated by love. They could not be criticised for their actions at the time.
The Kasurinens did not reduce their visits to the Club for long after their hiatus in October and November 2019.
In December 2019, Mrs Kasurinen attended the Club on 15 occasions (losing a 8 total of $8,307 on carded play or $554 on average per visit ) and Mr Kasurinen attended on 14 occasions (losing a total of $3,461 on carded play or $247 on 9 average per visit ).
These frequent attendances in December 2019 are contrary to Mrs Kasurinen’s evidence that she and her husband stopped attending the Club as often as they had earlier from about 1 September 2019 onwards.
On 9 December 2019, Ashley decided to do something. She rang the Club and spoke to someone she described as a manager. Ashley wanted the Club to ban her grandparents from the Club because she was so concerned about their gambling and, as she perceived things, the Kasurinens’ poor financial position caused by gambling. She was asked to put something in writing. She did not do so, and the Club did not ban the Kasurinens.
In January 2020, Mrs Kasurinen attended the Club on 23 occasions (losing a total 10 of $9,843 on carded play or $469 on average per visit ) and Mr Kasurinen attended on 23 occasions (losing a total of $4,457 on carded play or $194 on 11 average per visit ).
On 19 February 2020 Mrs Kasurinen and her husband vacated the rental property at Farrer. Vanessa was told that they vacated that property because they were

A code of practice (the Code) was prescribed under the Control Act. It is found in Schedule 1 of the Gambling and Racing Control (Code of Practice) Regulation 2002 (the GRC Reg).
Section 57 of the GMA said that a contravention of the GMA was a ground for disciplinary action.
Therefore, for the alleged contraventions of the Code concerning problem gambling, the Club is potentially liable criminally and also liable to disciplinary action. In this case only the latter has been pursued, but the Club submitted that the fact that the same alleged breaches potentially give rise to a criminal offence plays a role in the interpretation of the provisions.
We should mention at this point that as a breach of s 39 is a strict liability offence it follows that the defence of mistake of fact is available pursuant to s 23 of the Criminal Code 2002. That defence is described in s 36 of the Criminal Code and is to the effect that a person is not criminally responsible for (a strict liability) offence if, when carrying out the conduct making up the physical element of the offence, the person considered whether or not facts existed, and was under a mistaken but reasonable belief about the facts and, had the facts existed, the conduct would not have been an offence. Section 36(2) provides that a person may be taken to have considered whether or not facts existed when carrying out conduct if the person had considered, on a previous occasion, whether the facts existed in the circumstances surrounding that occasion and the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as the circumstances surrounding the previous occasion.
The other point to note about s 39 of the GMA is that s 39(4) provides that no offence is committed if a licensee took all reasonable steps to comply with the condition.
Clause 1.2 of the Code defined “problem gambling”. It said: 1.2 Meaning of gambling problem (1) For this code of practice, a person has a gambling problem if the person has difficulty limiting the amount of money or time spent on gambling and this leads to adverse consequences for the person or another person. (2) Also, a person is taken to have a gambling problem, if the person engages in any of the following behaviour: (a) seeking credit for gambling unless authorised under a gaming law; (b) seeking to borrow or scavenge for money to gamble; (c) seeking assistance or advice about controlling the person’s gambling; (d) admitting to borrowing or stealing money to gamble.
Clause 1.6 of the Code required the Commission to establish an electronic register in which licensees could record problem gambling incidents.
Clause 1.6A of the Code set out the obligations of licensees in relation to problem gambling incidents. It said: 1.6A Recording problem gambling incidents (1) A licensee of a gambling facility must keep a record of the following incidents (a problem gambling incident): (a) anyone who shows signs of having a gambling problem when— (i) in the gambling facility; or (ii) dealing with the licensee; (b) any action taken by the licensee in relation to the person. Examples—signs that person has gambling problem 1 admitting being unable to stop gambling or to gamble within the person’s means 2 expressing concern about the amount of time or money the person spends on gambling 3 acknowledging the person spends on gambling money needed for day-to-day living expenses, including for dependents 4 having a disagreement with a family member or friend about the person’s gambling behaviour 5 making multiple ATM cash withdrawals in the gambling facility Example—par (a) (ii) contacting staff in the gambling facility by phone or email (2) The record— (a) for a prescribed licensee—must be kept on the problem gambling incident register; or (b) for any other licensee—must be in writing. Note A licensee commits an offence if the licensee fails to make a record available for inspection when asked by the commission (see s 10). (3) The record must include the following particulars: (a) the date and nature of the problem gambling incident; (b) the name and address (if known), or description, of the person involved in the incident; (c) if any action was taken by the licensee in relation to the person the following details: (i) the action taken; (ii) the names of the individuals who took the action; (iii) any related action taken by someone else of which the licensee is aware. Examples—par (iii) 1 police arrest and charge the person for an offence relating to the problem gambling incident 2 the person has been excluded from gambling at another gambling facility (4) A licensee must, within 3 consecutive trading days after becoming aware of a problem gambling incident (a) for a prescribed licensee—record the incident in the problem gambling incident register; or (b) for any other licensee—make a written record of the incident. (5) ....
There was no dispute that the above applied to the Club.
The essential dispute between the parties at this point was what was meant by cl 1.2(1) of the Code, what was meant by “signs of having a gambling problem” in cl 1.6A(1) and what was meant by the word “aware” in cl 1.6A(4).
It is pertinent to note that neither the Code, the Control Act, the GMA nor the GMR defined what was a sign of having a gambling problem. The question of what constitutes signs of having a gambling problem has been the subject of many studies and reports over the previous several decades (at least) and what are generally recognised as signs of problem gambling in academic research has evolved over that time.
The reader of these reasons would have observed that some examples of signs of a gambling problem were provided in the Code under cl 1.6A(1)(b). Examples in ACT legislation and statutory instruments (the Code falls within the latter) are not exhaustive and, while they may extend the meaning of a statutory instrument, 13 they do not limit the meaning of that instrument. That is, there may be more signs of having a gambling problem than the examples provided. The result is that it has been left to the Tribunal to determine what the Executive meant by “signs of having a gambling problem” or, put another way, what other signs of having a gambling problem fall within that expression in the Code.
In determining that question, it is useful to immediately refer to some context to the regulatory framework and particularly the mischief which the framework was intended to address, including an understanding of the nature of problem 14 gambling. When that is understood it will be appreciated that the statutory interpretative exercise we must perform is more complex than the simplicity of the language in the framework might suggest.

The Code did not define what are signs of problem gambling, either in terms or, for example, by incorporating the Checklist by reference.
Annexure A to these reasons is a coloured copy of the 32-Item Checklist used in the training programs in the ACT.
In summary, the research showed that the relevant behavioural indicators fell into several categories, namely: (i) impaired control; (ii) raising funds; (iii) frequency, duration and intensity of gambling; (iv) irrational statements or behaviours; (v) emotional reactions; (vi) social behaviour; and (vii) other behaviours.
The Checklist is divided into six categories. It is colour coded because the behaviours were divided into four levels of seriousness: purple = gambling problems are highly probable; red = gambling problems are probable; orange = possible gambling problems; and yellow = early warning signs.
In the event the reader is not provided with a colour copy of these reasons, the purple behaviours are numbered 13, 28, 31 and 32 in the Checklist. The red behaviours are numbered 2, 3, 5, 6, 8, 10, 15, 17, 19, 25, 26, 29 and 30. The orange behaviours are numbered 4, 7, 9, 14, 16, 18, 20, 23, 24 and 27. The yellow behaviours are numbered 1, 11, 12, 21 and 22.
Although that may seem straightforward, the expert evidence shows otherwise.
Although the Checklist was created to assist staff to recognise a range of overt behaviours exhibited by an individual within and/or across sessions that may possibly signify the presence of problem gambling, a significant problem (according to the expert evidence) is that simply because a person displays one, or even more than one, of the recognised behaviours associated with problem gambling (whether on the Checklist or otherwise), that fact of itself does not mean that the person in fact has a gambling problem. It goes without saying that it is not possible for Club staff to diagnose problem gambling by reference to the Checklist, especially in-venue, nor would they be qualified to do so.
Additional practical problems exist in observing these behaviours. Amongst other difficulties, gambling staff are not and cannot observe every gambler for every minute of time they may spend gambling, many behaviours on the Checklist are context-dependent and sometimes the gaming room may contain many people. There was evidence to the effect the Club had about 50,000 members, and between 140 to 190 gaming machines could be active at any one time.

Emeritus Professor Blaszczynski currently holds the position of Professor Emeritus at the University of Sydney, Brain Mind Centre, School of Psychology. For the last thirty-five years, his clinical and research endeavours have been directed towards understanding the psychology of gambling, characteristics, personality, and cognitive factors that contribute to the development of gambling related harms and pathological or gambling disorders, the effectiveness of treatment interventions, and the impact and outcomes of principles and policies related to responsible gambling strategies. He has presented papers at over 300 international and national conferences and seminars on the psychology of gambling, cognitive, emotional and personality factors associated with decision making and impaired behavioural control, clinical treatments and their outcomes, and the effectiveness of responsible gambling policies.
Professor Blaszczynski said that the Checklist is not a diagnostic instrument. He said (emphasis added): The Behavioural Checklist is not a diagnostic instrument, nor are staff expected to clinically determine the presence of a gambling problem.
Professor Blaszczynski described the challenges in the use of the Checklist by non-medically trained staff in licensed venues. He said: Nevertheless, there are challenges that need to be recognised in the effective identification of problem gamblers in venues. These provide a clear rationale and justification for the need for the existence of an incident register to maximise the identification of at-risk patrons. These challenges have been noted by Delfabbro and others (from Blaszczynski, 2019): a) There is no single reliable indicator that accurately identifies problem gamblers. b) Indicators that represent the best predictors are rarely exhibited by problem gamblers. c) Indicators with lower strength predictions are more prevalent. The best predictive indicators are the ones less frequently exhibited by problem gamblers. d) Use of lower predictors will result in a greater number of customers misclassified as problem gamblers. e) Although the probability of accurately classifying customers as problem gamblers increases as more indicators are observed (4-5 associated with 80%+ probability), there are no consistent clusters of indicators that can be used to set benchmark standards. f) Varied combinations of indicators are more likely needed to classify different customers within venues. g) Indicators vary within and across sessions of play. h) The probability of observing two or more indicators exhibited concurrently remains low.
Professor Blaszczynski said that, in his view, the primary purpose of indicators (such as those set out in the Checklist) was to assist staff recognise a range of overt signs that “may possibly” signify the presence of problem gambling. In his view, by recording individual overt signs exhibited by a person within or across sessions of play, a profile of the person could be generated over time that may identify individuals at risk. The assessment and management of that risk, in his view, should then be undertaken by senior staff or responsible gambling committees. In this way, the primary objective of the incident register is to reduce harm by early detection and intervention.
In substance, those are the underlying reasons behind the Commission’s preferred interpretation, putting aside its ‘no awareness required’ point, which is that an entry should be made in the register every time a staff member observed any of the behaviours on the Checklist or mentioned in the Code.
Professor Blaszczynski said that except for patrons directly disclosing problem gambling to a staff member, there was no single indicator that was sufficient or necessary to allow a staff member to state with any degree of confidence that a patron had a problem with gambling. The probability of a more accurate assessment is achieved, he said, by the identification of a series of varied indicators that combined to generate a profile of problem gambling over time.
Professor Blaszczynski accounted for the practicalities of shift work and the like as follows: Given the structure of shift work, multiple staff, and staff turnover, developing an adequate profile requires the need for single incidents described in the Behavioural Checklist to be consistently and routinely recorded under a patron’s membership. In this manner, a review of multiple reported incidents from different staff across shifts and sessions can optimally reveal a profile that can be more fully and accurately assessed by a harm minimisation or responsible gambling committee.

Professor Delfabbro is a full professor in the School of Psychology at the University of Adelaide. He has been involved in gambling research since the mid-1990s and completed a PhD on the psychology of gambling behaviour in 1998. He has published over 350 peer reviewed papers in several areas of social policy, including behavioural addictions, has been regularly consulted by regulatory bodies, industry groups and government for over 20 years and has conducted much of the research in Australia relating to the visible indicators associated with identifying problem gamblers.
Similarly to Professor Blaszczynski, he said that there was no single observable behaviour that definitively identified a person as having a gambling problem (apart from a person admitting to having a problem). All indicators were meant to be used to build a profile of different patrons so as to make a probabilistic judgment as to whether a person was likely to be a problem gambler.
He said that some indicators were “strong indicators” of problem gambling, while others were merely “general indicators”. He provided example of each, but did not list all the behaviours which would fall within those two descriptors. He said that strong indicators were usually a feature of problem gambling rather than less severe forms of gambling. Given that fact, he said that in his opinion it would be reasonable to consider strong indicators as signs of problem gambling.
Professor Delfabbro said that “general indicators” did not indicate problem gambling on their own but could be combined into models along with other indicators to help identify people who were experiencing gambling-related harm. General indicators were better seen as indicators which elevated risk and increased the probability that a person might be a problem gambler if other information were available.
Professor Delfabbro said that the examples of signs of problem gambling given in cl 1.6A(1)(b) of the Code fell within what he regarded as strong indicators, and he wondered why the examples provided did not include any general indicators.
He said that some of the indicators in the Checklist, for example, were contextual. That is, whether they were signs of problem gambling depended on the context in which they were observed.
For example, Item 2 in the Checklist, is gambling through “normal meal times”. It is coloured red, meaning it is (according to the Checklist) “gambling problems probable”. Yet, what is a normal meal time? Presumably it means normal for that person, and, if so, that person’s normal meal habits would be relevant context to consider. Yet, how are Club staff to know what are normal meal times for a patron unless individual Club staff know the person reasonably well?
Another example of a context-dependent behaviour is gambling for long periods (3+ hours) without a “proper break”. A “proper break” is not defined. Professor Blaszczynski said that going to the toilet or going out for a cigarette would not be a proper break. He suggested a proper break had to be about 30 minutes every three hours. Professor Delfabbro did not opine on what was a proper break as far as we can ascertain. But nowhere in the Checklist or the regulatory framework is “proper break” defined.
Whilst on the topic, we note that other items in the Checklist require highly subjective and evaluative judgments. For example, Item 1 – “tries obsessively to win on one machine” – requires a subjective evaluation of what is obsessive. Perhaps a person continues gambling on the one machine thinking that if he or she has consistently lost on that machine then their luck should soon change for the better. Some may regard that as obsessive, others may not.
Other behaviours required what we regard as unlikely degrees of surveillance to observe. For example, Item 10 on the Checklist is leaving a venue to find money to continue gambling. Given the size of the Club, and its non-gambling areas such as bars and restaurants, it seems unlikely that gaming staff would observe someone leaving the gaming area (where the gaming staff predominantly work), then leaving the Club (rather than going to a bar or restaurant in the Club, or going outside for a cigarette), and then going somewhere else and for the purpose of finding more money to continue gambling.
Professor Delfabbro said that research in which he was involved which used a trained spotter with lived experience of gambling problems, showed that it took a lot of time and careful attention to spot very many behaviours even over several hours.
Professor Delfabbro said, in summary, that he was of the view that both deductive (know your customer and interpret within the context of what one knows of the person) and inductive approach (using indictors) to identify people who might be of interest or concern were both valid forms of harm minimisation. Conclusions drawn from the expert evidence
The expert evidence is to the effect that any one behaviour in the Checklist or mentioned in the Code, or even several, are not diagnostic of problem gambling except for someone admitting they had a problem with gambling.
Rather, the more of those behaviours that are observed, the more likely it would be that a person had a gambling problem. As Professor Delfabbro said, and with which Professor Blaszczynski agreed (emphasis added): All indicators are meant to be used to profile different customers so as to make a probabilistic judgement as to whether a person is likely to be a problem gambler.
Many behaviours are context dependent. Many require subjective and evaluative judgments to be made as to whether they are entirely innocent or whether they may be suggestive of problem gambling.

Now that we have described the regulatory context, it is appropriate to record our reasons for our ruling as to what the Commission could and could not contend for in the Stage 1 hearing before us. We shall first set out some brief procedural history as to how the dispute arose, followed by a description of our ruling and then our reasons for that ruling.
As set out above, cl 1.6A(4) of the Code required the Club to enter certain details in the register within three days of “becoming aware of” certain matters.
A critical disputed issue before us is the meaning of “becoming aware of”. At the risk of oversimplification, the issue is whether those words mean actual awareness alone (assuming, contrary to one of the Commission’s other submissions, awareness is required at all), or do those words include constructive awareness (as it was first put) by analogy with categories 2-4 described in Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509 (Baden). In that case it was said that knowledge could be one of five things, namely: (i) actual knowledge; (ii) wilfully shutting one’s eyes to the obvious; (iii) wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make; (iv) knowledge of circumstances which would indicate the facts to an honest and reasonable man; (v) knowledge of circumstances which would put an honest and reasonable man on inquiry.
Those categories are commonly referred to in breach of trust cases and the 15 application of the two limbs of Barnes v Addy. In Australia, only circumstances falling within the first four categories in Baden are accepted as being sufficient 16 for the second limb of Barnes v Addy.
We also note that categories 2 and 3 have generally been taken to involve actual knowledge, as understood both at common law and in equity, while categories 4 and 5 are understood as instances of "constructive knowledge" as developed in 17 equity.
Be that as it may, the issue of what is meant by awareness in the Code was not discussed in the Decision. Rather, the Commission seems to have proceeded on the basis that “becoming aware of” meant actual awareness of the Baden category 1 variety.
In Schedule D to the Decision, where the Commission set out its findings as to awareness of alleged problem gambling incidents, the Commission only used the expression “was aware”, and the sense of that expression, in context, is that the Commission was speaking of Baden category 1 actual awareness. This interpretation of the Commission’s Decision was accepted by both parties.
We cannot find any findings in the Decision to the effect that one or more Club employees was in fact aware of any signs of problem gambling. Rather, the contents of Schedule D to the Decision seems to proceed on the basis that because of the facts stated the Club must have been aware of each problem gambling incident. It is also reasonably apparent that the Commission aggregated the awareness of different employees and engaged in a degree of speculation that certain facts were known to the Club (for example, it said that some facts were

In a pre-hearing directions hearing held on 18 December 2025, the then senior counsel for the Commission (who did not appear at the final hearing) confirmed that the Commission’s position in terms of the allegations it would advance against the Club were as found by the Commission in its Decision. That is, amongst other things, on the question of awareness, the Commission would only be asserting that the Club was actually aware of the relevant matters as was found by the Commission i.e. Baden category 1 awareness.
In subsequent directions hearings, the Commission’s junior counsel said that the Commission also desired to contend that the Club had constructive knowledge of the relevant matters. Junior counsel was pressed as to the contents of the constructive knowledge allegation (because that expression means different things in different areas of the law) but no satisfactory answer was received.
At that time the Club made clear that it had been preparing to meet allegations of Baden category 1 actual awareness (as that was the only allegation pressed and found against it in the Decision) and not other varieties of awareness.
It was not until shortly after Mr Cheshire SC was first retained for the Commission that the Commission explained, through Mr Cheshire’s document filed on 24 February 2026 (three clear working days before the due commencement of the hearing), that the content of the Commission’s awareness allegation was by analogy with Baden categories 2 to 4. In addition, it was at about that point in time that the Commission also raised a contention that cl 1.6A of the Code did not require any awareness at all (none of Baden categories 1 to 4) before the reporting obligations in relation to problem gambling incidents were triggered.
After hearing argument on the first day of the hearing, we informed the parties on the morning of the second day of hearing that we would hear and decide: (a) all submissions and contentions raised by the parties (up to and including 2 March 2026) as to the proper interpretation of the provisions of the GMA, the GMR and the Gambling and Racing Control (Code of Practice) Regulation 2002 (including Schedule 1 to that Regulation); (b) the legal and factual issues described in the Notice of Decision dated 17 December 2024; and (c) whether the Club was in breach of clause 1.6A(1) and (2) of the Code.
That meant that we would hear and decide all the contentions the Commission desired to raise as to the proper interpretation of the regulatory framework, and particularly the content of the awareness requirement, if awareness was required at all, in cl 1.6A of the Code. In other words, we would decide whether cl 1.6A included awareness analogous with any one or more of Baden categories 1 to 4.
After that point, in terms of the factual case put against the Club, we would only hear and decide whether the Club had Baden category 1 actual awareness of the relevant matters as that was the only basis put forward by the Commission in its Decision.
The reason for hearing all contentions as to the proper interpretation of the clause was because there was no prejudice to the Club in doing so, and it would be beneficial to the Commission, the Club and other licensees for those issues to be decided, the point not having been previously decided and so that there was some certainty going forward as to the obligations of licensees to record problem gambling incidents.
The reason for refusing to hear any factual case against the Club other than one based on Baden category 1 actual awareness was because to do so would have been procedurally unfair to the Club. The Commission had not previously explored any case against the Club in its Decision based on analogies with Baden categories 2 to 4, nor had it informed the Club (prior to its Decision) that that was a matter of interest to the Commission.
Nor, subsequent to the Decision, did the Commission provide fair notice to the Club that awareness by analogy with Baden categories 2 to 4 was something that the Club should prepare to meet.
Any awareness case analogous to Baden categories 2 to 4 would have given rise to factual matters which the Club had not been informed would or might be raised against it, and the Club was therefore given no sufficient opportunity to investigate those matters and to prepare to meet any such allegations.
In those circumstances it seemed to us to be procedurally unfair to allow the Commission to raise those matters as part of the factual case which the Club would be expected to meet in the hearing before us.
We shall now turn to the matters of statutory interpretation.

The relevant principles were not in dispute and are summarised below.
In Taylor Gageler and Keane JJ said at [65] (footnote omitted): Statutory construction involves attribution of legal meaning to statutory text, read in context. “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always.” Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation.
In terms of the common law, Hayne, Heydon, Crennan and Kiefel JJ said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47] (citations omitted): This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
That statement did not require literalism. In R v A2 [2019] HCA 35 Kiefel CJ and Keane J, with whom Nettle and Gordon JJ agreed, said the following: [32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. [33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve. [34] This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight. [35] The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a “substantial miscarriage of justice” within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation. [36] These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision. [37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.
Several provisions of the Legislation Act 2001 (the LA) concerning statutory interpretation are also relevant. We shall refer to those provisions when summarising the parties’ submissions below.

The Commission submitted that this emphasis for the greatest harm minimisation effect could be inferred from other provisions in the GMA. One example was s 23 which referred to the requirement for a social impact assessment before an authorisation certificate could be issued, and that consideration had to be given to a licensee’s harm minimisation strategies for patrons before an authorisation certificate could be issued.
The Commission also drew our attention to s 18 of the Control Act which provided that a regulation may prescribe a code of practice, and that a code of practice may include guidelines about, amongst other things, limiting facilities that make it easy for a gambler to spend more than the gambler originally intended; training staff to recognise and deal appropriately with people who are problem gamblers or are at risk; and developing methods of dealing with staff or clients who are problem gamblers or are at risk.
The Club reminded us of s 139 of the LA which says that in working out the meaning of an Act the interpretation which best achieves the purpose of the Act is to be preferred.
The Commission submitted that if the Club’s submission that awareness of a problem gambling incident meant that the Club had to be aware both of the signs of problem gambling and also that the signs indicated that the person had a gambling problem, and the knowledge and awareness of multiple employees could not be aggregated, then the obligation to record problem gambling incidents in the register would have almost no harm minimisation effect because entries would rarely be made in the register.
In relation to cl 1.6A(1) of the Code and the words “problem gambling incident”, the Commission submitted that no particular meaning should be given to the word “incident” (contrary to the Club’s submission). A “problem gambling incident” was no more and no less than what was described in cl 1.6A(1)(a) and (b). That is, the incident which is to be recorded is made up of someone who shows signs of having a gambling problem (in the gambling facility or dealing with a licensee) and any action taken by the licensee in relation to the person.
As to what was meant by “a gambling problem” in cl 1.2 of the Code, the Commission submitted that cl 1.2 was definitional. It simply defined what having a gambling problem was. Putting aside the deeming provision in sub-cl (2), cl 1.2(1) said that a person had a gambling problem when that person had difficulty limiting the amount of money or time spent on gambling and this led to adverse consequences for the person or another person. The Commission then submitted that one would then simply turn to what were recognised behaviours indicative of that condition, and not (as the Club submitted) that the behaviours themselves had to show both difficulties limiting time or money and adverse consequences.
Put another way, the Code was not limited to behaviours which factually indicated both difficulties limiting time or money and adverse consequences. Rather, the Commission submitted, there were well recognised behaviours indicative of problem gambling (the behaviours in the Checklist, the behaviours set out in cl 1.2(2) and the examples under cl 1.6A(1)(b)), and it was those behaviours which had to be recorded per cl 1.6A(1)(a).
The Commission submitted that the proper interpretation of the Code was not that any relevant observer had to conclude that a person in fact had a gambling problem, only that they showed behavioural indicators of having a gambling problem.
The Commission submitted that once a person exhibited any two or more of the 19 behaviours in the examples given under cl 1.6A(1)(b) or the behaviours listed

Despite the significant time and effort devoted to the dispute whether the hearing would include any variety of awareness beyond that mentioned in the Decision (which, everyone agreed, was limited to actual awareness), the Commission said it would make no submissions about Baden categories 2 to 4 other than to say that it would be surprising if cl 1.6A(4) did not capture something that went beyond actual awareness such as wilful blindness. The Commission said that it could not make any helpful submissions on those three categories without referring to a factual substratum (which it said it could not do because our ruling was to the effect that no factual case was allowed to be advanced against the Club on those three categories).
In our view no factual substratum was needed to make submissions on whether the Code included awareness analogous to Baden categories 2 to 4. Ordinarily, evidence is not admissible as to the proper interpretation of a statute other than the extrinsic materials referred to in the LA and certain exceptions such as trade 21 usage (which is not the case here). Therefore, no facts were necessary in order to make submissions as to the proper meaning of the disputed provisions, albeit we accept that factual circumstances may illuminate the effects of different interpretations. Alternatively, if some factual substratum was necessary, there was sufficient factual substratum before us to make submissions.
As we later explain, we consider cl 1.6A of the Code, on its proper interpretation, requires and includes Baden categories 1 and 2, but not 3 and 4. That is, it requires either actual awareness or wilful blindness or both. We shall say more about those matters later in these reasons.
On awareness, the Commission directed our attention to other parts of the Code which touch on this subject and are of importance given statutory instruments like the Code must be interpreted as a whole.
For example, our attention was taken to cl 1.8 which is in the same Division as cl 1.6A. Clause 1.8 requires licensees to take reasonable steps to give a person

Our attention was taken to cl 1.9 which prohibits a licensee from conducting gambling unless at least one GCO had been appointed to the facility. Clause 1.10 describes the functions of GCOs. Clause 1.11 requires a licensee to ensure that the GCO for the facility is told about people whom a staff member has reasonable grounds for believing has a gambling problem, keeping a register of the details of those reports, taking reasonable steps to discuss problem gambling with the person concerned and giving the person advice or information about counselling, advisory services and other matters including exclusion.
The important aspect of cl 1.11 is that it includes the concept of people exhibiting behaviours which amount to reasonable grounds for a staff member to believe that that person has a gambling problem. This is different to cl 1.6A(4)’s requirement for, in essence, awareness of someone showing signs of having a gambling problem.
The significance of that difference, the Commission submitted, was that the awareness in cl 1.6A was something less than the state of mind referred to in cl 1.11. As cl 1.11 encompassed observing behaviour which led to a reasonable belief that a person had a gambling problem, cl 1.6A must mean something different and something less. That is, cl 1.6A did not require the forming of any belief of any kind, nor, most particularly, any belief that a person had a gambling problem. The Commission submitted that all that was required by cl 1.6A was to be aware of two or more of the relevant behaviours, and once awareness of those two behaviours occurred the obligation to record was triggered. If the observed behaviours did in fact cause a staff member to form the belief that a person had a gambling problem, then that would trigger the additional obligation to report that matter to the GCO and the GCO to act in accordance with cl 1.11.
Of course, we divert briefly to note that it is not quite as basic as simply observing (or being aware of) two or more behaviours (and nor did the Commission submit otherwise). Some behaviours are relatively simple, such as the five examples appearing under cl 1.6A(1)(b). However, many behaviours in the Checklist are contextual and many require subjective and evaluative judgments.
But the Commission’s basal point was that once two or more of those behaviours were observed, the obligation to make a record would be triggered. The aim being, as the expert evidence explained, that the register would then build a profile of persons against whom entries were made so that, over time, those with gambling problems might be identified (on the assumption that multiple entries were made about them). Presumably, sufficient entries (in number and significance) may then lead to the formation of a reasonable belief under cl 1.11 after which intervention of some sort was mandated.
In relation to the meaning of “becoming aware of” in cl 1.6A(4), the Commission submitted that all that a licensee needed to be cognisant of (to use a neutral expression) was the exhibiting of two or more of the relevant behaviours; a licensee was not required to form any sort of conclusion that those behaviours meant that the person had, or might have had, a gambling problem.
The Commission submitted that awareness included actual awareness, as well as wilful blindness (properly understood). The Commission submitted that the latter would fall within the interpretation of “becoming aware of” in cl 1.6A(4) to discourage licensees from failing to be as observant as they should be.
In relation to aggregation, the Commission submitted that on the proper interpretation of the Code, cl 1.6A inferentially incorporated aggregation of knowledge for corporate licensees.
In support of that interpretation the Commission again drew attention to cl 1.11 of the Code which refers to staff members forming reasonable beliefs, whereas cl 1.6A did not refer to staff members nor any other persons. Inferentially, the Commission submitted, that suggested that cl 1.6A, which only focused on licensees, encompassed aggregation of awareness of all staff members for corporate licensees.
The Commission sought to distinguish cases such as Commonwealth Bank of Australia v Kojic [2016] FCAFC 186 (Kojic). In Kojic, the Full Court of the Federal Court held that there was no aggregation of knowledge for corporations in relation to ss 51AB and 51AC of the Trade Practices Act 1974 (Cth) (the TPA).
The Commission submitted that Kojic could be distinguished because it dealt with statutory provisions which involved a degree of moral obloquy, intent or fraud, all of which were missing from cl 1.6A.
There was one possible qualification to the holding in Kojic. Allsop CJ and Besanko J left open the possibility that aggregation could occur if there were a duty and an opportunity to communicate certain knowledge. Allsop CJ said at [66]: Depending upon the relevant statutory context or substantive rule, it may be that separate information held by an officer or agent may be aggregated with information held by another if there is a duty and opportunity to communicate it to the other: Re Chisum Services Pty Ltd (1982) 7 ACLR 641 at 649-650; Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 at 161-62; and Australian Competition and Consumer Commission v Radio Rentals Ltd (2005) 146 FCR 292 at [182]. The relevance and legitimacy of any such approach may well depend upon the statutory context or the relevant substantive rule.
Besanko J agreed with Allsop CJ and Edelman J (at [69]). As to the possibility of aggregation in the context of a duty and opportunity to communicate his Honour said at [83]: Finally, whether aggregation is possible where there is a duty to communicate was not argued in this case. It was accepted that Coombe and Barnden did not have a duty to communicate with each other. I would wish to reserve this issue for consideration in a case where it arises. When it does arise, it will, I think, raise a number of other questions concerning the type of duty in terms of source, nature and extent of the duty that might lead a court to conclude that separate pieces of knowledge should be aggregated (Sixty-Fourth Throne at 161-162 per Ashley AJA).
We should deal with this discrete issue now (that is, whether aggregation exists because there was a duty and the opportunity to communicate under the Code). The Commission did not develop any submission to the effect that in the present context there was both a duty and the opportunity to communicate certain information, and that therefore aggregation should be held to exist. The gaming staff at the Club did have an informal system of passing information to others on the next shift (such as to keep an eye on a particular player), but this seems to us to fall well short of the duty to communicate spoken of in Kojic and none of the matters mentioned by Besanko J (the type of duty in terms of source, nature and extent of the duty) were explored either in evidence or in submissions. We note that in none of the cases cited by Allsop CJ and Besanko J where this possibility has been mentioned has aggregation of knowledge been held to exist. Rather, each case left open the possibility of aggregation in those possible circumstances, but none have been held to exist. That may well be because of the very real problems identified by Edelman J in Kojic.
The Commission drew our attention to John XXIII College v SMA [2022] ACTCA 32, in which Kojic was mentioned, but it is difficult to discern any guiding principle from that decision.

The material in relation to the 2019 reforms was not tendered as extrinsic material to be used in the interpretative process, but really just as some generalised corroboration for the submission made that the Commission’s interpretation of the Code would be unworkable, and as corroboration for Mr Cameron’s evidence to the same effect, namely that it would be practically impossible to record every 23 behaviour indicative of problem gambling. We do not consider it appropriate to take the material mentioned into account in the interpretive process, but the point made as to practicability has some force.
The Club submitted that a breach of cl 1.6A was a criminal offence. That was because s 50 of the GMA in force at the relevant time said that a licensee had to comply with a code of practice, and it was a condition of any licence that a licensee comply with a code of practice. Section 39 said that a licensee committed an offence if the licensee’s licence was subject to a condition, and a licensee failed to comply with a requirement of a condition.
If that was correct, which we think it is, the Club submitted that if the language of the provision remained ambiguous or doubtful after the application of the ordinary principles of statutory construction, a narrower construction of the Code should be preferred, caution should be exercised in accepting any loose interpretation of the Code and the language of the Code should not be unduly 24 stretched or extended.
That submission loses some force, although not all, given that the relevant offence is one of strict liability and the Club would have available the defence of reasonable mistake of fact which we described at [92] above, and the defence provided for in s 39(4) of the GMA, namely that no offence is committed if the Club took all reasonable steps to comply with the condition.
The Club submitted that cl 1.6A, although important, was to be considered as but one of many other important clauses in the Code. In short terms, cl 1.6A was not required to do all the heavy lifting in terms of problem gambling, and so its terms

That is, the behaviour observed had to suggest that the person was having difficulty limiting either money or time on gambling and it could be inferred from whatever was observed that that difficulty was leading to an adverse consequence. It had to be evident, the Club submitted, that both of those matters (difficulty limiting time or money and adverse consequences) were present (with the exception of cl 1.2(2)(d), admitting to borrowing or stealing money to gamble, because the harm was obvious).
The Club submitted that the test was subjective rather than objective. That is, the observer of the behaviours had to subjectively form the relevant opinion, namely that the observed behaviours indicated both a problem limiting time or money and adverse consequences. If a person observed certain behaviours but did not form the relevant opinion, and as long as that state of mind was honestly held, there could be no breach of the clause. The Club supported this contention by references to the contextual and evaluative aspects of the behaviours set out in the Checklist (for example). That is, the conclusion that the Code was speaking of a subjective state of mind (rather than objective) was supported by the fact that many of the behaviours incorporated contextual and evaluative considerations.
In relation to the examples given under cl 1.6A(1)(b), the Club submitted that they were not deemed problem gambling signs such as those in cl 1.2(2), but something less. That is, they could be signs of a person having a gambling problem in the right context, but devoid of the right context they did not, of and in themselves, amount to signs of a gambling problem. The Club drew our attention to the Explanatory Statement which accompanied the amending regulation which said that the examples “can indicate” (not must indicate or would indicate) that a person has a gambling problem.
Somewhat against that submission is that the heading to the examples (and the heading is part of the instrument) which says “Examples – signs that person has gambling problem”. The use of “has” rather than “may have” is a consideration weighing a little against the Club’s submission (as the Club fairly acknowledged).
The Club submitted that awareness was required before an obligation to record was triggered, and the relevant awareness was actual awareness (and not anything analogous to the other Baden categories). The Club submitted Baden categories 2 to 4 were really in the realm of equity and were relevant in that context because equity acted on the conscience of the wrongdoer. In the regulatory framework under consideration in this case there was no indication that the conscience of the wrongdoer was involved.
The Club drew our attention to Mullaley v State of Western Australia [2020] FCA 13 (Mullaley) in which Colvin J was concerned with the meaning of “awareness” in a Western Australian limitation statute. His Honour said, following AME Hospitals Pty Ltd v Dixon [2015] WASCA 63 (AME) at [27] (emphasis ours): Awareness requires actual perception or conscious understanding. Awareness does not arise from mere notice or some form of deemed or constructive knowledge. Rather, the term awareness refers to a subjective state of mind which involves the conscious knowing of facts and their significance.
In AME, McLure P, with whom Newnes JA agreed, said about the word “aware” at [34]-[36]: The natural and ordinary meaning of the term “aware” is cognisant or informed of. That is, awareness can result from information provided by a third party. In the context of s 39(3), actual awareness is required, not constructive awareness: Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 9-10. … What constitutes actual awareness will depend on the nature of the fact or matter in issue. In this case, awareness of the physical cause of the respondent’s injury is a matter of inference, from primary facts, that requires expert medical knowledge and experience. That the respondent’s father may have been aware of some or all of the primary facts and of the opinion of a non-qualified person as to the physical cause of the respondent’s injury cannot satisfy the actual awareness requirement.
In relation to aggregation, the Club submitted that the awareness of different Club employees could not be aggregated. The Club drew our attention to Kojic and Edelman J’s reasons against aggregation in that statutory context. Decision

We agree with the Commission that a problem gambling incident is no more and no less than that which is stated in cl 1.6A, namely a person showing signs of having a gambling problem in the facility or dealing with a licensee, and the action taken by the licensee.
Textually, that is how cl 1.6A reads and it seems to us that that is the natural meaning of the language used.
We do not agree with the Club’s submission that the word “incident” (where first appearing) is to be given what the Club says is its ordinary meaning. That is, not only did a sign have to be of a gambling problem, but it also had to be noteworthy or have attracted attention. In other words, on the Club’s submission, subtle signs of someone having a gambling problem, signs that did not attract attention, would not be caught by the definition.
First, cl 1.6A(1) is, in part, definitional. That is, amongst other things, it defines what it calls “problem gambling incidents”. Thus, those words, including the word “incident” take their meaning from what follows (as distinct from the words’ ordinary meaning). What follows in cl 1.6A(1)(a) and (b) are the things which constitute “problem gambling incidents”.
Second, the Club’s interpretation would have the effect of excluding subtle signs of a person having a gambling problem. We do not see any warrant for including noteworthy signs but excluding subtle signs. Indeed, the evidence is that problem gamblers often try to hide their problem, and so problem gamblers may conceal or minimise their behaviour in order to avoid attracting attention.
Third, if the Club’s submission were accepted, a significant practical problem would arise, namely, assessing whether particular behaviour was noteworthy. How, and by what criteria, we ask rhetorically, would one behaviour be judged to be noteworthy and another not?
We distinguish Philcox because it deals with different legislation (concerning accidents causing personal injury) and a very different subject matter.
Our interpretation has the benefit of superior workability than the interpretation put forward by the Club. It avoids the need for judgments as to noteworthiness and avoids the need for employees to make judgments as to whether adverse consequences exist or may be inferred. Rather, employees need only look out for patrons exhibiting signs of having a gambling problem in the facility or when dealing with licensees.

We do not agree with the Commission’s submission that a licensee is required to record problem gambling incidents even if not aware of them. Notwithstanding the history of the relevant provision, cl 1.6A, and each part of cl 1.6A, must be interpreted in its full context. In our view, read as a whole and in the context of the whole of the Code, cl 1.6A(1) sets out the obligation to record (but not the circumstances which trigger that obligation), cl 1.6A(2) sets out the form of the register, cl 1.6A(3) sets out the contents of any entries to be made, cl 1.6A(4) sets out the trigger for the obligation to record and cl 1.6A(5) defines relevant licensees for the register.
Textually, the existence of a time period in cl 1.6A(4) for recording things of which licensees are aware without any corresponding express time period for recording things of which licensees are not aware, appears incongruous with the Commission’s interpretation.
The Commission drew our attention to s 151B of the LA which said that if no time is fixed in a statutory instrument requiring something to be done, then the thing must or may be done as soon as possible and as often as needed. It is difficult to see how that could sensibly be applied in-venue because the expression “as soon as possible” requires some evaluation of circumstances. But what circumstances would be relevant if one excluded awareness is difficult to discern.
We also consider it unlikely, especially in the absence of clear language to the contrary, that the Executive would impose an obligation on licensees to record matters of which they were not and perhaps could not have been aware. The expert evidence is to the effect that problem gamblers frequently try to hide their addiction. It may be, for example, that a problem gambler will play two machines at once (a potential sign of problem gambling) but only does so when he or she can see that no staff are watching. It would seem draconian to hold a licensee criminally liable in such a circumstance, yet that would be the potential result of adopting the Commission’s interpretation.
The Commission submitted that the obligation to record incidents of which licensees are unaware arises immediately upon an incident occurring. We consider that to be unlikely given that if an incident occurred and the incident was not immediately recorded, then a ground for disciplinary action would be created.
True it is that an earlier version of the Code did not include any awareness requirement, but we consider it more likely that either awareness of some sort would have been implied in any interpretation of that earlier provision, or it was simply bad drafting.
It also seems incongruous to us that, assuming the Commission’s submission that no awareness was required for the obligation under cl 1.6A(1) to be triggered, why a new provision which included awareness was thought necessary. As the Commission accepted in submissions, if a licensee complied with cl 1.6A(4) by recording an incident within three days of becoming aware of it, it could nevertheless be subject to disciplinary action for not recording the incident earlier when it was unaware of it.
We are not persuaded by the Commission’s submission that the fact of not being aware of a problem gambling incident could be considered in the disciplinary process.
Section 138(c) of the LA says that working out the meaning of an Act means finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable. Notwithstanding the skill with which the submission was put, we consider a meaning of cl 1.6A as including an obligation to record incidents of which licensees are unaware, and without a time period within which to make the record, as unreasonable within the meaning of s 138(c) of the LA and we do not accept it.

This expression gives rise to the following issues: (a) is direct observation required; (b) is awareness confined to awareness of the behaviours and nothing more, or does it include a complexion or significance to be given to those observed behaviours, namely that those behaviours are signs of someone having a gambling problem; (c) is the awareness subjective or objective; and (d) is awareness limited to actual awareness, or does it also include wilful blindness, wilful recklessness or constructive awareness.
As to the first issue, the use of the word “aware” suggests that direct observation of the thing to be observed is not required. It suggests that person A may become aware of a relevant thing if he or she was told about it by person B. In other words, awareness is not limited to personal observation. A person may become aware of something through being told about it (by another employee for example) or reading about it (in some form of report for example). This is consistent with McLure P’s interpretation of the word “aware” in AME, namely that “aware” may include information provided by a third party.
As to the second issue, there is much overlap between the meaning of “becoming aware of” and “signs of having a gambling problem”. The overlap is that, in our view, both expressions incorporate not only cognisance of facts, but also an appreciation of the significance or complexion of those facts.
A somewhat similar issue arose in Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [1983] HCA 44 (Deming). In that case the High Court was concerned with the interpretation of certain parts of Queensland legislation concerning the conveyance of lots in unit title land. Under the legislation a proprietor was required to give a purchaser a written statement containing various items of information. If the statement was not given, or it omitted some required information, a purchaser could avoid the contract within thirty days “after he first became aware of the failure”.
The plurality held that (at [23]): the very words “becomes aware" strongly indicate that the statute is looking to the purchaser’s actual knowledge of the failure which, by description, is a failure to comply with the statutory provisions. We conclude that the words “becomes aware of the failure” in s. 49(5) involve not only knowledge that a statement containing the specified material has not been given but an awareness that the fact that such a statement was not given constitutes a “failure” to do something which the Act says should be done.
That is, the plurality held that the expression included awareness of both the relevant facts (the faulty statement) and the legal complexion to be given to those facts (that this amounted to a failure).
In Mullaley, Colvin J thought that ‘aware’ included not just knowledge of facts but also knowledge of their significance. In AME, McLure P considered the same word included not just the facts, but knowledge of their medical significance (obtained from third party expert knowledge and experience).
In each of those three authorities ‘aware’ included both the observed facts and the significance or complexion of those facts.
In our view, “becoming aware of” in cl 1.6A includes both the observed behaviour and that that behaviour has some significance or complexion concerning problem gambling.
Awareness is required of problem gambling incidents. Problem gambling incidents are people showing signs of having a gambling problem in the facility or in dealing with a licensee, and the licensee’s subsequent actions. Stripping away that which is not presently relevant, what the clause requires is awareness of people showing signs of having a gambling problem. That is, there must be cognisance of behaviours, and an appreciation that those behaviours have some significance concerning problem gambling.
It is important to remember the nature of problem gambling, that many of the behaviours in the Code and the Checklist are highly contextual and many are evaluative. The expert evidence is that no behaviour or combination of behaviours is diagnostic of problem gambling, and that two people can display the same behaviours but only one of them may have a gambling problem.
We do not consider that “becoming aware of” in this statutory context means that an employee must, in effect, diagnose a person with a gambling problem. Neither does it mean, in our view, simple observation of one of the relevant behaviours irrespective of the context in which the behaviour occurs. In our view “becoming aware of”, in the gambling context, requires something in between the two.
What the clause requires is observation of (or being informed about) one or more of the relevant behaviours which, when considered in context, suggest, point to, or give rise to a suspicion that the patron may have a gambling problem.
This interpretation fits neatly with our interpretation of “signs of having a gambling problem” which we discuss in the next section of these reasons.
As to the third issue, while the question whether a person exhibits a relevant behaviour is objective, awareness of the behaviour amounting to being a sign of problem gambling is subjective.
In Deming, Mullaley and AME, the relevant awareness was the subjective awareness of the relevant person. In Deming it was the state of mind of the purchaser. In Mullaley it was the state of mind of the plaintiffs who were seeking extensions of time. In AME it was the state of mind of the plaintiff’s next friend, her father.
In our view that is the sense of “becoming aware of” in cl 1.6A. Of course, since the Club is a corporation and has no corporeal existence, the relevant state of mind is that of the employee or agent whose awareness may be attributed to the Club.
We should say something more about context forming part of the subjective opinion whether a behaviour is a sign of a problem with gambling. Many of the employees or former employees of the Club who gave evidence spoke about getting to know the Kasurinens over time, their observations of them during that period and certain assumptions they made about the Kasurinens’ financial circumstances.
In our view, observations made by an employee of a particular patron over time, including what may be said between an employee and a patron, or anything reported to an employee by some other credible source (such as another employee) would all be part of the context to consider in arriving at a subjective opinion as to whether an observed behaviour was suggestive of, an indicator of, a pointer to, or which gave rise to a suspicion that a person had a problem with gambling.
As to the fourth issue, the second category of knowledge in Baden was what was there described as wilfully shutting one’s eyes to the obvious. In the criminal law in Australia there is a concept sometimes referred to as wilful blindness.
In equity, the plurality in Stubbings v Jams 2 Pty Ltd [2022] HCA 6 (Stubbings) described wilful blindness (in the context of a case on unconscionability) as 26 follows (footnotes omitted):

R v Crabbe [1985] HCA 22 (Crabbe), referred to in the quote above, was a criminal case, and the quote from Professor Glanville Williams came from his book titled Criminal Law: The General Part, 2nd ed (1961) at p 159.
In Crabbe, Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ went on to say, immediately following the quoted passage above at [12]: Again, in his Textbook of Criminal Law (1978), at p 79, Professor Glanville Williams said, in a passage cited by Lord Edmund-Davies in R v Caldwell [1982] AC 341 at 358: “A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realizes that there is a risk; and if he realizes that there is a risk, that is the end of the matter.”
The label attached to this concept in the criminal law, namely wilful blindness, is an inapt and perhaps misleading one. It is, in truth, simply an inference of actual knowledge which may be drawn in certain circumstances. The seminal case is Pereira v Director of Public Prosecutions [1988] HCA 57.
In that case the applicant was convicted of two charges, one of being knowingly concerned in the importation of a trafficable quantity of cannabis and the other of having in her possession a trafficable quantity of cannabis resin imported in contravention of the Customs Act 1901 (Cth). The resin had been concealed in a parcel delivered to the applicant’s address but had not been opened by her before the Police arrived about one hour after the parcel was delivered. The substantive issue at trial was whether the applicant knew the resin was secreted in the parcel since the prosecution was required to prove knowledge in relation to both charges. On the question of knowledge and wilful blindness the High Court said at [11] (our emphasis): Even where, as with the present charges, actual knowledge is either a specified element of the offence charged or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains one of actual knowledge. It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused, although, of course, that may not be an irrelevant consideration. Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer's shorthand, be referred to as wilful blindness.
Transposed into a gambling context, that would mean this. If a licensee employee was alleged to have been aware of two or more signs of problem gambling, but denied being aware of them, it might be inferred, from all the circumstances (including, where appropriate, suspicious circumstances and any failure to make enquiries) that the only rational inference is that that employee was in fact aware of those signs.
Baden’s category two, being wilfully shutting one’s eyes to the obvious, has been 27 described as a species of actual knowledge.
Whether there is any substantive difference between the criminal law’s wilful blindness and Baden’s category 2 seems doubtful given the reliance by the plurality in Stubbings on a criminal authority’s description of wilful blindness, but if there is a difference it need not be explored here.

In the event, we consider that wilful blindness, as described in both Crabbe and Pereira, is caught by the phrase “becoming aware of” in cl 1.6A since it is, properly understood, an inference of actual knowledge rather than some other, different species of knowledge (such as constructive knowledge for example). The inclusion of wilful blindness is consistent with the wider context to the Code and its aim for harm minimisation. Licensees are those that profit from gambling, and yet (to an extent) they must police it. Accordingly, it seems to us that inferences of actual awareness may be drawn in appropriate circumstances even if awareness is denied or an employee cannot recall their state of mind at the time.
We do not consider wilful recklessness to fall within the expression “becoming aware of”.
We appreciate that it, too, has been described as a type of actual knowledge, at least in equity, but we do not consider it is included in the present expression as a matter of statutory interpretation.
Problem gamblers are known to hide their behaviour and to not admit to their problem, so it seems open to doubt whether any enquiry of a person in-venue would yield any useful or reliable information. Further, there would seem to be limited opportunities to make any inquiries from any independent source.
We have already mentioned the fact that a breach of cl 1.6A is a criminal offence and grounds for disciplinary action, and consider the use of the word “awareness” rather than “knowledge” suggests that the Executive was focused on that which was apparent to relevant staff, rather than also visiting upon them an awareness of something they would have discovered had they made enquiries. It is one thing to make enquiries involving a potential breach of trust, it is another to expect gaming staff to make judgments about whether or not to make enquiries of people who are gambling while also attending to their other duties. After all, as the Club correctly submitted, the Code is an industry code which should have workable outcomes.
We do not consider that constructive awareness analogous to Baden category 4, falls with cl 1.6A awareness for the same reasons we expressed immediately above. What are the “signs of having a gambling problem”
There are broadly three issues here. The first is whether the relevant signs must factually indicate both difficulty limiting time or money and adverse consequences or are simply the recognised behaviours associated with problem gambling such as those in the Checklist and mentioned in the Code. The second issue is what are the behaviours that are signs. The third issue is whether a behaviour must have a significance or a complexion to the person aware of it something we touched on earlier at [260]-[266] above.
We note that nowhere in the regulatory framework is there a definition of “signs of having a gambling problem”, nor even a test of what a sign might be, other than (arguably) the examples in cl 1.6A(b) and the behaviour set out in cl 1.2(2).
The Club submitted that a sign of having a gambling problem was any behaviour from which it could be logically inferred by a reasonable, objective bystander that either both limbs of the general definition in cl 1.2(1) were met, or that one of the four forms of prescribed and deemed behaviour in cl 1.2(2) of the Code were present.
The Commission submitted that there was no requirement for a sign to demonstrate the asserted two limbs of cl 1.2(1), and that a sign of having a gambling problem was the mere observance of one of the recognised behaviours.
In our view neither submission should be wholly accepted, nor wholly rejected.
Dealing with the first issue, the ordinary meaning of the word “sign” is an object, quality, or event whose presence or occurrence indicates the probable presence or occurrence of something else, or is an indication of something.
We do not accept the Club’s contention that, other than the cl 1.2(2) behaviours, a sign must show both a difficulty limiting time or money and it must show or indicate adverse consequences.
In our view the relevant behaviour need only be an accepted indicator or pointer (accepted in the industry or generally accepted in the research on problem gambling) of problem gambling. By accepted indicator we have in mind, leaving aside the behaviours found in cls 1.2 and 1.6A of the Code, those behaviours that the academic research has shown to statistically predict problem gambling status or which the gambling industry would accept as being indicative of problem gambling.
It would be unworkable, we think, that a sign needed to be an observed behaviour that showed both a problem limiting time or money spent on gambling and adverse consequences. It seems more likely that most adverse consequences from problem gambling would only be observable away from the gambling facility.
Adverse consequences of problem gambling include emotional distress, mood disorders, anger, resentment, suicidality, stress-related physical health problems, substance use, social isolation, and impaired family relationships. Harms may also include neglect of responsibilities, hypervigilance, intimacy problems, interpersonal violence, shame, and embarrassment.
The alleged need to show adverse consequences would also be inconsistent with the examples of problem gambling given under cl 1.6A(1)(b) and the behaviours listed in cl 1.2, none of which include any description of adverse consequences.
To accept the Club’s submission would be to move away from the natural reading of cls 1.2 and 1.6A and how they interact. It would also elevate cl 1.6A to more of a diagnostic requirement, or as if cl 1.6A(1)(a) read “anyone who shows they have a gambling problem”. We do not consider that to have been the intent as expressed in the words used and in the context of what is problem gambling as explained by the expert evidence.
In relation to the second issue, the Commission said it was a question of fact, but that the behaviours in cl 1.2(2), the examples under cl 1.6A(2) and the behaviours in the Checklist would all be included. It was accepted that the behaviours in cl 1.2(2) must be included. It was accepted by the Club that the examples could be signs (depending on context), while the Commission submitted the examples were signs (irrespective of context). The Commission submitted that the behaviours in the Checklist were also signs because the Code was an industry code of practice and the items in the Checklist were part of the RCG and GCO courses and were consistent with the expert evidence.
The Club’s submission was, putting aside any need for adverse consequences to be apparent, a sign would be any behaviour from which it could be logically inferred by a reasonable, objective bystander that the person had a gambling problem. As we understood the Club’s submission, this would include the examples and the behaviours in the Checklist if the reasonable conclusion could be drawn (in the context in which the behaviour was observed) that the person had a gambling problem.
In our view signs of having a gambling problem, subject to our holding in relation to the third issue below, includes, but is not confined to, the behaviours set out in cl 1.2(2) of the Code, the examples appearing under cl 1.6A(1)(b) of the Code, and the 32 items set out in the Checklist (collectively, the problem gambling behaviours).
The behaviours set out in cl 1.2(2) are included as signs because their existence deems a person to have a gambling problem.
The behaviours set out in the examples under cl 1.6A(1)(b) are included because examples in statutory instruments in the ACT may extend but not limit the meaning of the instrument. In addition, the heading to the examples (which is part of the instrument) is a firm indicator that the Executive intended that those examples be counted as behaviours which were, subject to what we say below, signs that a person had a gambling problem.
The 32 items in the Checklist are included because they were recognised as signs of problem gambling in academic research and have been found to be statistically predictive of problem gambling status. They are included in the training courses for RCG and GCO certificates, and the Code is an industry code of practice.
There may be additional behaviours which could fall within the expression “signs of having a gambling problem” because there is no definition or test of what constitutes a sign in the Code. Perhaps the Club was correct in submitting that a sign was any behaviour that from which it could be logically inferred by a reasonable, objective bystander that a person may have a gambling problem, although that test would need to be qualified or informed by some problem gambling expertise because it could not be assumed that the ordinary citizen would recognise behaviours indicative of problem gambling. But we need not decide that point here, it being sufficient to hold that the behaviours which are included in the expression “signs of having a gambling problem” are the behaviours in cl 1.2(2), the examples under cl 1.6A(1)(b) and the behaviours in the 32-item Checklist.
The third issue is whether the behaviours must have some significance or complexion to the person who is aware of them. There are three possibilities. First, no significance or complexion is required, a problem gambling behaviour is a “sign” if it is observed and no more (the Commission’s position). Second, a behaviour demonstrates that a person has a gambling problem (in substance, the Club’s position). Third, whether a problem gambling behaviour, seen in context, is suggestive of, is a pointer to, or which gives rise to a reasonable suspicion that, the person may have a gambling problem.
In our view it is the third of those three possibilities which is the correct one.
The word “signs” ordinarily means something like a pointer or indicator or a suggester of something. That is, it points to something else, it indicates something else.
Many of the relevant behaviours require context or evaluation to avoid, at the very least, recordings being made of many completely innocent behaviours exhibited by people who are not problem gamblers, and would not, in practice, be workable. In addition, that need for context and evaluation for many of the behaviours speaks to the nature of the problem (identifying problem gamblers when no behaviours or combination of behaviours is diagnostic), and so the need for context and evaluation adds something to be required over and above the mere observance of the stated behaviours.
Therefore, the meaning of the expression cannot be the first alternative of the three we mentioned.
We do not think the second alternative would be workable, and it does not fit with the ordinary meaning of “signs” nor with the meaning of the word “aware” that we have discussed above. Awareness in this context requires some cognisance of the significance of the behaviours, and the ordinary meaning of “signs” is pointer, indicator or suggester. Thus, cl 1.6A is addressing behaviours which are indicators, pointers or suggesters of problem gambling rather than being diagnostic of problem gambling.
As was said in Professor Delfabbro and others’ report titled “Identifying Problem Gamblers in Gambling Venues: Final Report” at p 47 when discussing training courses for gambling staff: However, venue staff are specifically told that “it is not possible to identify a problem gambler by physical characteristics or behaviour alone”, and that this requires “professional psychological assessment”.
Thus, we think the more natural meaning of the expression “signs of having a gambling problem”, taking into account the mischief this part of the Code was seeking to address, the nature of problem gambling and the need for a workable Code, are that “signs of having a gambling problem” are those problem gambling behaviours which a relevant employee or agent of a licensee subjectively considers, in context, suggest, point to, or give rise to a suspicion that the person has a gambling problem.

Devlin J summarised the issue in Armstrong v Strain [1951] 1 TLR 856 at 872 as follows: … you cannot add an innocent state of mind to an innocent state of mind and get as a result a dishonest state of mind.
In short, Kojic held that aggregation of the knowledge of company officers was not permitted by the statute there under consideration.
The balance of authority favours the holding in Kojic.
The Commission put its aggregation case on the basis of statutory interpretation. That is, did the regulatory framework, properly interpreted, mean that the awareness in cl 1.6A included the aggregated awareness of more than one staff member?
In this case we see no statutory context which suggests that the awareness of various staff involved in gambling related activities at the Club could be aggregated for the purposes of cl 1.6A.
A breach of the clause is both a strict liability offence and grounds for disciplinary action. Clear language would have been needed to persuade us that the Executive intended there would be criminal liability and disciplinary action in circumstances where, for example, one employee was aware of one sign, a different employee on a different shift was aware of a second sign, and the Club would then be deemed to be aware of two signs and thus be aware of a problem gambling incident.
Nor can we see in the words of the Code any warrant for the aggregation of the awareness of staff with gambling related responsibilities. Indeed, the language of cl 1.11 fairly clearly speaks against aggregation because that clause only operates in circumstances where a staff member has a duty to report to a GCO that that staff member has reasonable grounds for believing a person has a gambling problem (cl 1.11(1)), and the obligations of the GCO after that point. There would be no need for cl 1.11(1) if aggregation of awareness operated in the Code.
In addition, the word “aware” in cl 1.6A has the subjective element we have mentioned previously, and some awareness that observed facts had some significance or complexion. Those matters speak against aggregation.

In our opinion the Code works in the following manner.
Clause 1.2(1) defines or describes what is a gambling problem.
Clause 1.2(2) deems a person to have a gambling problem if they exhibit any of the specified behaviours.
Clause 1.6A requires a licensee to make a record of problem gambling incidents within three days of becoming aware of an incident. Problem gambling incidents are made up of the identification of a person, observable signs (there must be at least two) of having a gambling problem which the person displayed while in the facility or when dealing with the licensee, and any action taken by the licensee in relation to that person.
The signs of having a gambling problem include, but are not limited to, the behaviours set out in cl 1.2(2), the examples given under cl 1.6A(1)(b) and industry-recognised behaviours (presently the 32-item Checklist), which, in context, would indicate to a reasonable licensee employee that each of the behaviours was (individually) suggestive of, an indicator of, a pointer to, or which gave rise to a suspicion that a person had a problem with gambling.
The Club put a submission (admittedly on a slightly different point) that context included wider factual matters which would not be observable by an employee in real time in-venue. For the avoidance of doubt, the only context relevant to an employee’s subjective state of mind for the purposes of cl 1.6A of the Code would be matters brought to that employee’s attention either by direct observation or from other credible sources.
Awareness of different employees cannot be aggregated. Thus, for the reporting obligation to be triggered in cl 1.6A, one employee of a licensee is required to be aware of two or more signs of problem gambling. That awareness may come from personal observation, or credible information from other sources.
Awareness of such an employee includes wilful blindness (as we have explained above). That is, if an employee denies being aware of signs of problem gambling, or cannot recall the events alleged, it would be open to prove that the employee was aware of signs of problem gambling by proving circumstances which would attract the inference of actual awareness spoken of in the wilful blindness authorities.
Two or more signs are required in order for there to be a problem gambling incident. The two signs must not be so temporally or geographically separated as to have no real connection to one another. The Code is silent on this, but we would think that two signs occurring in the same gaming day in the one facility would be sufficiently related. It may be that two signs over two gaming days could be related, for example if a patron ceased gambling only at closing time on one day and commenced gambling immediately on the opening of the facility the next. Quite where the dividing line should be is difficult to say and need not be further explored here. Suffice to say that there must be some temporal and geographic connection between the two behaviours that would suggest, point towards or raise a suspicion that a person had a problem with gambling.
In our view these interpretations fit most comfortably with the language used in the Code, are workable and best achieves the harm minimisation purpose of the Code without leading to absurd or unreasonable results.
Our interpretations are consistent with the expert evidence as to the nature of problem gambling and the fact that the various behaviours identified are not diagnostic of problem gambling, and certainly not diagnostic by licensee employees. Nevertheless, it enables the building of a profile of persons who, in the minds of licensee employees with some RCG and/or GCO training become aware of two or more behaviours which suggest, point to or raise a suspicion that a person has a gambling problem. If such a profile is built and those signs are recorded, the next stage would then be the possible operation of cl 1.11. Thus, the Code works by, in effect, requiring the recording of suspicions of problem gambling per cl 1.6A which, if those suspicions become such that a reasonable belief can be formed, trigger the interventions required by cl 1.11.
Our interpretations minimise the chances of false positives i.e. the over recording of wholly innocent behaviours by patrons who do not have gambling problems, a situation we regard as unworkable.

As we are performing an administrative function we think it allowable to make the following further observations which may be of assistance to the parties in the future.
First, the result of this case in terms of problem gambling will probably come as a disappointment to Mrs Kasurinen and the Chambers family who at all times conducted themselves with dignity and grace in the Tribunal despite the many tragedies that were visited upon them, and especially Mrs Kasurinen. We hope they understand that the result has arisen from vague and uncertain laws, with the Commission thinking those laws meant one thing whilst we have held that they meant another.
Second, it is clear from all of the evidence before us (which was not available to any one employee of the Club) that the Kasurinens each had a problem with gambling, and Mrs Kasurinen particularly.
Third, the regulatory framework does not define what are signs of having a gambling problem, nor does it define behaviours which, seen in context, may amount to signs of having a gambling problem. This seems problematical when provisions in the Code give rise to criminal offences. Perhaps that issue should be re-examined by the Executive.
Fourth, the 32-Item Checklist, which is taught as part of the RCG and GCO certificates, does not contain any of the behaviours set out in cl 1.2 (which deem a person to have a gambling problem) nor the five examples provided under cl 1.6A(1)(b). As far as we are aware, the behaviours in the Code are not taught as part of the RCG and GCO courses.
Fifth, none of the employees or former employees of the Club who gave evidence had more than the vaguest of recollections of the Checklist, none could remember its contents, and none spoke of the problem gambling behaviours found in cl 1.2 and 1.6A(1) of the Code. This would seem more than an unsatisfactory outcome in terms of the effectiveness of the training given for RCG and GCO certificates.
Sixth, many of the employees or former employees of the Club appeared genuine in their attempts to discern whether the Kasurinens or any other patrons had a problem with gambling. But they were misdirected in their efforts in two ways. First, the net effect of their training was that they were ignorant of most of the behaviours they were supposed to be looking for. Second, they were, at least in part, persuaded that the Kasurinens were well off financially because of things said to them by the Kasurinens. They therefore thought that the Kasurinens could afford to gamble to the extent that they did, and therefore did not have a problem with gambling. In short, the employees and former employees too readily accepted what they were told by the Kasurinens. Although the context in which behaviours are to be judged to determine whether they are signs of problem gambling would include the contents of conversations with patrons, gambling staff would be wise to treat statements from patrons with a degree of scepticism, especially when it comes to uncorroborated statements of wealth or financial security.
Seventh, reliable objective data recording the Kasurinens’ carded play (gaming session data) was available to the Club, although what it recorded does not appear to have been analysed or distributed to management with the exception of regular reports (usually weekly) containing only some of that data (the Top 20 Player Reports).
Although such data has inbuilt limitations, it was nonetheless objective in what it records and does not rely upon human observations with all the fallibilities that that entails. An examination of the gaming session data would arguably have revealed that Mrs Kasurinen displayed several of the behaviours on the Checklist such as gambling through normal mealtimes (Item 2), gambling until closing time (Item 4), putting large wins back into a machine and continuing gambling (Item 8), spending more than $300 in a session (Item 14), often gambling for more than three hours without a proper break (Item 15), betting more than $2.50 most of the time (Item 16) and playing very fast (Item 17).
The Top 20 Player Reports were distributed to senior management but were not examined. Those reports extracted some of the gaming session data and set out, for weekly periods, a patron’s number of visits for that week, their total gambling turnover, their average turnover per visit, their total wins and their average bet.
An examination of the Top 20 Player Reports for Mrs Kasurinen would arguably have revealed that Mrs Kasurinen displayed behaviours such as spending more than $300 in a session (Item 14), betting more than $2.50 most of the time (Item 16) and putting large wins back into a machine and continuing gambling (Item 8).
Had the factual case against the Club included wilful blindness, the gaming session data and the Top 20 Player Reports might assumed much greater significance given that wilful blindness may include a failure to make inquiries in appropriate circumstances, and that the Club could have made inquiries of this data.

We now turn to the 28 alleged problem gambling incidents.
In its Decision, the Commission appeared to find that the Club had actual knowledge of the problem gambling incidents but did not ascribe any awareness of any facts or awareness of any signs to any particular employee. Rather, the contents of Schedule D to the Decision seems to proceed on the basis that because of the facts stated the Club must have been aware of each problem gambling incident.
As we have outlined above, cl 1.6A of the Code is triggered when an employee or agent (with gambling responsibilities) of the Club becomes aware of two or more problem gambling behaviours, and that employee’s subjective appreciation is that the behaviours, seen in context, suggest, point to, or give rise to a suspicion that a person had a problem with gambling.
The relevant awareness is either actual awareness (the person was aware) or wilful blindness (it could be inferred that the person was aware). It is only the first of those two which was allowed by us to be put against the Club in these proceedings on procedural fairness grounds.
None of the employees or former employees who gave evidence in the proceedings said that they were aware of any signs of problem gambling. That is, they never formed a subjective opinion that whatever it was that they observed was a sign of problem gambling.
Unless that evidence of their subjective state of mind is rejected, then the problem gambling part of the case must be decided in favour of the Club.
We do not consider that we should reject the evidence of those employees or former employees as to their subjective opinions at the time.
It is true that the Club admitted that certain behaviours occurred which would fall within one of the problem gambling behaviours, it is true that the Club admitted 31 that some of those behaviours were known to someone in the Club, and it is true that there must have been one employee dealing with Mrs Kasurinen when she made multiple EFTPOS withdrawals (Item 5 on the Checklist). But what was not present was evidence that any particular employee was aware of at least two of those behaviours and had the subjective opinion that those behaviours were signs of a gambling problem.
That should not be taken to be critical of the Commission which investigated the matters alleged and commenced the disciplinary action against the Club. That part of the regulatory framework which is relevant to this case was, on its face, vague and uncertain, and this case was the first case in which those provisions were examined and their legal meaning determined.

The Club submitted that the terms of s 178(3) manifested an intention that s 104 of the LA did not apply to the GMA. The Club submitted that s 178 was relevantly limited (in terms of offences or breaches) to the power to make regulations creating offences for contraventions of the regulations, and fixing penalties for those offences of not more than 10 penalty units. Put another way, the language of s 178(3) evinced an intention that breaches of the GMR would be confined to whatever offences the GMR created.
Regulation 62A, the Club submitted, created the offence of allowing prohibited withdrawals, and thus evinced an intention that a breach of r 62A would not also be, at the same time, a breach of the GMA (which brought with it the possibility of disciplinary action).
By so confining the rule-making power, the Club submitted, it could be seen that the Assembly was not intending to allow the government of the day to create any grounds for disciplinary action (not sanctioned by the Assembly) simply by the exercise of executive power in adding to or amending the GMR.
Thus, in this case, a breach of r 62A of the GMR exposed the Club to a maximum fine of 10 penalty units (subject to the criminal standard of proof). But if the breach of r 62A was also a breach of the GMA, disciplinary action could be taken and, if the breach was made out, the Club’s licence could be, on the civil standard of proof, suspended or cancelled, and financial penalties (at the time) could be $100,000 (many times the value of 10 penalty units as at the time of the alleged offences).
The Club also submitted that, if any breach of the GMR was a breach of the GMA per s 104 of the LA, then some absurd grounds for disciplinary action would arise. These included: where a licensee failed to clearly and specifically identify all of the sources of information in a social impact assessment (r 10(5)); or where it failed to ensure that a member had not voted more than once in a ballot (r 21); or where it failed to redeem a person’s credits on a cashless gaming card within 14 days after the person’s exclusion from gambling at the premises (r 33(2)).
In response to the Commission’s reliance on the Note appearing beneath s 58(3) of the GMA, the Club correctly submitted that the Note is not part of the Act. The Club submitted that that Note was found under s 58(3), a permissive provision, rather than being a note to s 57, and particularly s 57(1)(c) (which provides that a ground for disciplinary action includes a contravention of the GMA).

In our view s 104 of the LA was not displaced. Therefore, a breach of the GMR was a breach of the GMA.
First, it is noteworthy that the Assembly did not expressly displace the application of s 104 when it could easily have done so if that was its intent.
Second, adopting the Club’s submission would be to read down s 178(1) of the GMA to such an extent as to render it superfluous. Adopting the Commission’s interpretation may on one level be thought to do the same, because if s 178(1) were as broad as its general words suggest, then there was arguably no need for s 178(3).
There are other limits on offences which do not apply to disciplinary action. For offences committed by corporations where the fine is less than 100 penalty units, prima facie the prosecution for that offence must be begun not later than one year 33 after the day of commission of that offence. This rather suggests that offences under the regulation were to be treated as limited extra sanctions to those that applied to the same conduct under the GMA (assuming s 104 of the LA was not displaced).
Third, and developing the last point, the natural reading of the whole of the GMA and the whole of the GMR suggests to us that the intent of those instruments, taken together, was that the regulator could take disciplinary action for any infringement of the Act or the regulation, but for certain infringements of either, criminal sanctions might also apply where specified. That is a more natural reading of the whole of the two instruments rather than the Club’s interpretation, which would mean that a breach of a regulation such as r 62A could only be the subject of a criminal sanction but never the subject of disciplinary action, and that the infringement of some regulations in the GMR (which are not offences) would have no sanction at all.
Fourth, there are references in Hansard to the flexibility and responsiveness of regulations as opposed to Acts. For example, in his Presentation Speech to the Gaming Machine (Cash Facilities) Amendment Act 2017 which introduced the EFTPOS obligations involved in this case the then Attorney-General said: This is an important feature of the bill. Implementing these controls by regulation, rather than through the principal act, allows for flexibility and responsiveness to changes in the clubs sector.
That statement is a rather clear indicator that s 104 was not intended to be displaced.
In our opinion, s 104 of the LA was not displaced and a breach of the GMR was a breach of the GMA and could be the subject of disciplinary action.

Since February 2014, s 153A of the GMA made it an offence for a licensee to allow a person to “withdraw” more than a total of $250 from all ATMs at the premises, using a single debit or credit card, on a gaming day. A ‘gaming day’ for a non-24 hour club like the Hellenic Club was the period from when the Club opened until it next closed. The penalty was 50 penalty units. That limitation was easy enough to comply with because ATM machines could be programmed to meet the obligation and no human intervention by Club staff was required.
The purpose of s 153A was to limit the amount of cash available to gamble, and to enforce a break by requiring gamblers to leave the premises to obtain more cash and thus provide a cooling-off period.
According to the expert evidence, a sufficient break in gambling disrupts states of dissociation (a sense of detachment or a trancelike altered state associated with intense immersion in the activity of gambling) and provides patrons with an opportunity to reflect on what they are doing and to reconsider whether to continue gambling. Brief breaks like going to the toilet, obtaining additional funds from an onsite ATM/EFTPOS machine, or having a cigarette, are not usually regarded as sufficient for this purpose according to Professor Blaszczynski.
At the time s 153A was introduced, it was thought that exempting EFTPOS facilities from a similar restriction could be justified because withdrawals from such facilities involved face-to-face contact with venue staff.
Regulation 62A was introduced in 2017 by the Gaming Machine (Cash Facilities) Amendment Act 2017 and commenced on 1 September 2017.
The Revised Explanatory Statement to that Act explained that it had been observed that certain practices in the use of EFTPOS facilities in licensed gaming venues were not consistent with harm minimisation objectives. The Statement went on to say that the intent of the Bill was to: … provide for restrictions on cash facilities in clubs. In particular, through changes to the Regulation, the Amendment Bill will limit EFTPOS cash withdrawals in clubs to a maximum of $200 per transaction, limit EFTPOS 34 The date the provision commenced cash withdrawals to a single location within a club (outside the gaming area), and provide that EFTPOS cash withdrawals must involve human interaction, with the same staff member being involved in all stages of the transaction. In addition, the staff member operating the EFTPOS facility must be trained in the responsible provision of gambling services.
In explaining the new r 62A under Clause Notes, the Statement said (emphasis added):

As we read that explanation, (especially the word “each” in the phrases “each EFTPOS cash withdrawal transaction” and “each cash withdrawal”) the intent seems to have been that each, individual EFTPOS withdrawal could not be more than $200, but that more than one $200 withdrawal could be made in a gaming day.
In the Presentation Speech to the Bill the then Attorney-General said that an investigation conducted by the Commission had revealed that EFTPOS cash withdrawals were being used as a means to circumvent the intent of the ATM restriction to limit the amount of cash able to be withdrawn to $250.
The Attorney referred to the avoidance of the undermining of the ATM restriction, harm minimisation, that there were sound reasons for EFTPOS restrictions and that (emphasis added): These restrictions will ensure that any EFTPOS cash withdrawal involves interaction with a staff member. That staff member must be trained to recognise, and to respond appropriately, if it appears that the person making the withdrawal may have a gambling problem. These requirements will avoid the current scenario where cash withdrawals up to any amount are able to be made at multiple locations in authorised premises, sometimes from unstaffed EFTPOS cash-out machines. They are a restriction that will support staff to identify people who may be affected by problem gambling and to offer assistance.
In relation to the proposed r 62A, the Attorney said that the Bill contained (emphasis added): … amendments that will … require that any withdrawal of cash from an EFTPOS facility must not exceed $200 … and require the person operating the EFTPOS facility to confirm the amount of cash to be withdrawn before it is withdrawn and to hand the cash directly to the person making the withdrawal.
The Attorney made express reference to multiple withdrawals. He said: The restrictions on EFTPOS withdrawals are based on the principle that restricting the available cash to gamblers while they are gambling will reduce harm. Limiting this access will mean that overspending becomes less likely. The amendments I am introducing today mean that people will need to take a break and interact with a trained staff member if they wish to withdraw more cash.
The central question is what is meant by r 62A(3) when it says that a person may only withdraw cash from an EFTPOS facility if the “cash withdrawal” does not exceed $200.
The Commission alleges this regulation was breached 45 times on 30 specified dates. We have described one example which illustrates the issue at [374] above. There was some dispute as to exactly how the consecutive transactions occurred. On one version each EFTPOS transaction of $200 was completed (including the $200 being handed to Mrs Kasurinen) before another was commenced. On another version, the electronic transactions were done consecutively, and the funds put together into one pile before being handed to Mrs Kasurinen. Ultimately, we do not consider the issue in contest depends on which of those versions is the more probable.

Whilst s 153A of the GMA referred to the total withdrawn in a gaming day, r 62A only refers to a limit only on a withdrawal.
The issue boils down to the meaning of the words “withdraw” and “withdrawal”, neither of which are defined in the GMA nor the GMR (nor the LA).
It is tolerably clear from the extrinsic material that we have referred to above that the Executive intended that there may be more than $200 per day withdrawn using a venue’s EFTPOS facilities. It is also clear from the Presentation Speech that it was intended that there would be a break between withdrawals.
It seems to us that the Commission’s interpretation should be preferred up to a point, and that the Club’s interpretation is artificial. That is, it is artificial to distinguish between, for example, one withdrawal of $400 (which was prohibited) and two immediately successive transactions of $200 within seconds of each other (which the Club submitted was permitted).
What would be achieved by allowing multiple, immediately successive withdrawals is unknown to us, and nor can we imagine what it might be. On the other hand, some substantive break in between withdrawals could be seen as directed toward harm minimisation in that, as Professor Blaszczynski said, a sufficient break in gambling disrupts states of dissociation and provides patrons with an opportunity to reflect on what they are doing and reconsider whether to continue gambling.
Quite what a substantive enough break would be required to prevent two withdrawals being counted as one is difficult to say given the statutory language. One would think that the mere leaving the location of the EFTPOS machine by a patron (the Commission’s interpretation) would not be sufficient because the objective of a break as described by Professor Blaszczynski would not be met by someone making one withdrawal, then going to the toilet or to have a cigarette and then returning to make a second withdrawal.
If “withdrawal” in r 62A means something like the “action of withdrawing something”, or the “act of taking money out of an account”, then the question becomes whether the ‘action’ or ‘act’ should be interpreted broadly (as the Commission would have it) or narrowly (as the Club would have it).
The broader interpretation should be preferred because it is consistent with the intent of r 62A as described in the extrinsic materials to which we have referred, and it addresses the mischief r 62A was intended to remedy.
In our view “withdrawal” means the act or action of taking money out of an account, or series of connected acts or actions resulting in the taking of money out of an account. If multiple transactions are, as a matter of substance, really effected as one act or action, or a connected series of acts or actions, then those multiple transactions will be one withdrawal for the purpose of r 62A.
If a patron completed an EFTPOS transaction for $200, then immediately joined the EFTPOS queue and completed another EFTPOS transaction for $200, we would think that those were a connected series of acts or actions and therefore amounted to one withdrawal for the purposes of r 62A.
Similarly, if a patron completed an EFTPOS transaction for $200, and came back after a few minutes having gone to the toilet or having gone to have a cigarette, and completed another EFTPOS transaction for $200, we would think that those two transactions were a connected series of acts or actions resulting in the taking of money out of an account and therefore amounted to one withdrawal for the purposes of r 62A.
If a patron completed an EFTPOS transaction for $200, went and had a meal, and returned to complete another EFTPOS transaction for $200, we would think that the two transactions were not a series of connected acts or actions, and would not be regarded as one withdrawal for the purposes of r 62A.
In the present case, Mrs Kasurinen’s multiple transactions occurred immediately consecutively and within seconds or a very small number of minutes, and it does not matter whether each transaction was completed in the way described by the Club’s employees, or they happened as described by Mrs Kasurinen. In substance, on either version, they amounted to one act or action in withdrawing money and are therefore withdrawals for the purpose of r 62A of the GMR.
We described one example of the allegations made against the Club at [374] above, namely that on 11 December 2017, Mrs Kasurinen withdrew: $400 in two, immediately consecutive transactions of $200 each between 12:04am and 12:06am; $600 in three, immediately consecutive transactions of $200 each between 12:32am and 12:33am; and $400 in two, immediately consecutive transactions of $200 each between 1:48am and 1:49am.
On our interpretation of r 62A, the two transactions at or about 12:04am were one withdrawal, the three transactions at or about 12:32am were one withdrawal, and the two transactions at or about 1:49am were one withdrawal. However, in our view, the series of transactions at or about 12:04am, 12:32am and 1:49am were separate from each other and were not, as between themselves, a series of connected acts or actions. Put another way, the seven transactions between 12:04am and 1:49am did not amount to one withdrawal for the purposes of r 62A. Factual findings - EFTPOS
By the time of final submissions, it became apparent, and it was accepted by both parties, that Mrs Kasurinen engaged in all the EFTPOS transactions which were the subject of dispute. It had earlier been thought that Mr Kasurinen engaged in some transactions, but both parties agreed in final submissions that this was not the case.
Taking the Club’s case at its highest, whenever Mrs Kasurinen engaged in one of the multiple, immediately consecutive $200 transactions (to use a neutral word), each $200 transaction was completed before the next was commenced. By completed the Club meant that all physical and electronic parts of the transaction were completed, including the handing of the $200 to Mrs Kasurinen.
Even if that were the case, in our view those immediately consecutive transactions, each of $200, were but part of one withdrawal for the purposes of r 62A.
If, as the Commission suggested, each $200 transaction was not completed before the next was commenced (for example, by not handing to Mrs Kasurinen the total withdrawn until the last transaction had been completed), the conclusion that the multiple, immediately consecutive transactions amounted to but one withdrawal is strengthened.

HELLENIC CLUB OF CANBERRA LTD v ACT GAMBLING AND RACING COMMISSION (Occupational Discipline)

At a glance

Court

Decision date

Source

Judgment

Parties

Legislation Cited (8)

Cases Cited (26)