1. Concerning the decision by the respondent under review, dated 12 September 2024, the Tribunal finds under section 4.5A.14 of the Gambling Regulation Act 2023 (Vic) (the Act) that:

a) The applicants contravened section 4.7.10 of the Act by offering rewards as inducements to open betting accounts with respect to the Ocean Grove Football and Netball Club, Macedon Football Netball Club, Chelsea Football Club and the Dandenong Football Club (detailed at paragraphs 141 to 189 of the following reasons); > > b) The applicants contravened section 4.8A.6 of the Act by failing to comply with the harm minimisation direction dated 6 July 2022 which says at clause 5.1 that, 'A wagering service provider or person acting on behalf of a wagering service provider must not send any direct marketing to a person unless that person has provided his or her express consent to receive direct marketing (detailed at paragraphs 106 to 126 of the following reasons).

2. Concerning the contravention of sections 4.7.10 and 4.8A.6:

a) by 6 February 2026, the respondent is to provide to VCAT and to the applicants its written submissions on penalty; > > b) by 6 March 2026, the applicants are to provide to VCAT and to the respondent their written submissions on penalty; > > c) by 18 March 2026 following receipt of both sets of submissions, the parties are to advise the Tribunal and each other as to whether the parties seek that the Tribunal make the decision on penalty on the papers (under section 100 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)) or hear oral submissions at the now scheduled VCAT penalty hearing.

3. If required, the VCAT penalty hearing, will be held via Zoom starting at 2:00 pm on 20 April 2026 before Deputy President Proctor, allow half a day.

1. Each of the applicants in this proceeding, Mr Norman Oke, Mr Steven McKay & Mr Mark Opie were at all relevant times registered bookmakers under the Gambling Regulation Act 2023 (Vic) (the Act).
2. On 12 September 2024 (with reasons provided on 15 October 2024), the Victorian Gambling and Casino Control Commission (Commission), which is established under the Act, decided to take disciplinary action against the applicants, who at relevant times were trading as the bookmaking partnership, OkeBet (OkeBet Partnership) (the Decision).
3. As discussed below, before he resigned from the OkeBet Partnership on 25 September 2023, Mr Gary Oke was also a registered bookmaker and a member of the OkeBet Partnership. This case does not concern any disciplinary action against Mr Gary Oke.
4. While the Commission considered taking disciplinary action concerning four 'Grounds', it only took disciplinary action concerning Grounds 1 and 3. Therefore, Grounds 2 and 4 are not addressed here.
5. The Commission's reasons concerning Ground 1 said:

Ground 1 - contravention of the harm minimisation direction

SECTION 4.5A.14(1)(c) - OKEBET HAS CONTRAVENED SECTION 4.8A.6 OF THE ACT BY FAILING TO COMPLY WITH A HARM MINIMISATION DIRECTION

The Harm Minimisation Direction dated 6 July 2022 states at clause 5.1 the following:

A wagering service provider or person acting on behalf of a wagering service provider must not send any direct marketing to a person unless that person has provided his or her express consent to receive direct marketing.

On 21 July 2023, OkeBet sent a promotional email to 1,030 people (the Email). The Email:

a) offered, 'enhanced odds', 'cash-back up to $100 if a selection runs 2nd on selected races across Caulfield & Rosehill', 'the best market odds for #8 Chayse N Artie in Race 2 at Doomben' and 'boosted odds for Rolls and Mollynickers to both win their races'; and

b) was sent by an OkeBet staff member via email.

Five of the recipients of the Email complained to the VGCCC about receiving it. Each of those complainants were individuals who had informed OkeBet that they did not wish to be permitted to bet with OkeBet and were accordingly "self-excluded" at the time.

In a 13 September 2023 response to a notice to produce, OkeBet informed the VGCCC that the Email was distributed to 1,030 self-excluded customers.

I have formed the view that sending the Email comprised "direct marketing" within the meaning of clause 5.1 of the Harm Minimisation Direction.

I have also formed the view that the 1030 self-excluded customers who received the Email had not provided express consent to receiving the Email.

OkeBet, in its 10 June 2024 response to the Show Cause Notice, has submitted that the VGCCC is applying clause 5.1 in a way that goes beyond the words on the page in the Ministerial Direction and that the VGCCC is alleging that OkeBet has breached an implied law in this ground. I reject those submissions.

In my view, the fact that a customer has self-excluded from holding a betting account with OkeBet is clear evidence that the customer does not consent to receiving direct marketing from OkeBet, and has communicated their lack of consent to the receipt of direct marketing to OkeBet. That is the case even if the customer had previously consented to receiving direct marketing. Put another way, it is open to a customer to withdraw their consent to receipt of direct marketing. By executing a self-exclusion, the customer has (in my view) plainly withdrawn any previously conferred express consent to receiving direct marketing. It follows that a customer who has self-excluded is a customer who has not provided his or her express consent to receive direct marketing; and that OkeBet's conduct in sending the Email to self-excluded customers constitutes a direct (and not implied) breach of clause 5.1 of the Direction.

It follows that a ground for disciplinary action exists under ss 4.5A.14(1)(c) of the Act, in that (by contravening cl 5.1 of the Direction) the registration holder has contravened s 4.8A.6 of the Act.

I have decided, in respect of that ground for disciplinary action being established, to issue a letter of censure under ss 4.5A.14(1)(c) of the Act. While I considered imposing a fine for this breach, I have concluded that a letter of censure alone will suffice to achieve the protective purposes of the imposition of disciplinary action for this contravention. I have formed this view having regard to OkeBet's acknowledgement that the Email was inadvertently sent to unintended recipients as well as its submission that it has taken significant steps to take corrective and preventative measures to ensure there is no repeat of this error.

1. The Commission's reasons concerning Ground 3 said:

Ground 3 - inducement to open a betting account

SECTION 4.5A.14(1)(c) - OKE BET HAS CONTRAVENED SECTION 4.7.10 OF THE ACT BY OFFERING AN INDUCEMENT TO OPEN A BETTING ACCOUNT

Section 4.7.10 of the Act provides that a wagering service provider must not offer any credit, voucher or reward as an inducement to open a betting account.

OkeBet offered rewards of money as an inducement to open a betting account on four occasions, as set out below.

On 13 February 2023, the Ocean Grove Football and Netball Club was sent an email from Tim Donoghue, the CEO of OkeBet. The email attached a copy of the agreement dated 13 February 2023 and signed by OkeBet on 23 February 2023 making the offer that Ocean Grove Football Netball Club would receive $100 per member or associate of the club who opens a betting account with OkeBet and becomes an active client.

"The Ocean Grove Inducement"

The covering email confirms the terms of the offer, that:

a) supporters of the Ocean Grove Football Netball Club sign up with OkeBet;

b) with their first deposit, supporters must use the unique promo-code;

c) the Ocean Grove Football Netball Club will be rewarded $100 per active customer, per annum;

d) OkeBet will provide the Ocean Grove Football Netball Club with quarterly advice to raise an invoice for the number of active customers and will make the payment into your nominated account; and

e) the Ocean Grove Football Netball Club is eligible for a payment every 12 months for each active customer.

On 15 March 2024, in response to a request from the VGCCC, seven Victorian sporting clubs confirmed that they had received contact from OkeBet about the same offer, but had rejected the proposal. Three clubs confirmed that they been offered rewards of money as inducements for their club members and associates to open betting accounts and had entered agreements with OkeBet to this effect.

OkeBet made an offer to Chelsea Football Club that it would receive $100 per member or associate of the club who opens a betting account with OkeBet and becomes an active client. The commencement date of the offer from OkeBet to Chelsea Football Club was 8 February 2023 and it was signed by OkeBet on 28 February 2023.

OkeBet made an offer to Dandenong Football and Netball Club that it would receive $100 per member or associate of the club who opens a betting account with OkeBet and becomes an active client. The commencement date of the offer was 28 February 2023 and it was signed by OkeBet on 28 February 2023.

OkeBet made an offer to Macedon Football Netball Club that it would receive $100 per member or associate of the club who opens a betting account with OkeBet and becomes an active client. The commencement date of the offer was 20 March 2023 and it was signed by OkeBet on 20 March 2023.

"The Chelsea, Dandenong and Macedon Inducements"

Section 4.7.10 of the Act provides "A wagering service provider must not offer any credit, voucher or reward as an inducement to open a betting account."

In my view, OkeBet contravened this provision on the 4 occasions described above in relation to the Ocean Grove Inducement and the Chelsea, Dandenong and Macedon Inducements.

That is, and as described above, OkeBet made offers to each of the sporting clubs described above. The offer was of a reward in the form of cash payment to the club. The offer was made as an inducement to members or associates of each sporting club to open and/or maintain a betting account.

The fact that the reward was offered to an entity (the sporting club) which was a different legal person from the individual being induced to open a betting account does not detract from my conclusion. Rather, I interpret s 4.7.10 as covering the scenario where (as here) the reward offered as an inducement to open a betting account is a reward offered to a third party.

OkeBet submitted, in its 19 May 2023 response to the VGCCC's notice to produce (relied upon in OkeBet's 10 June 2024 response to the proposed disciplinary action), among other things:

My clients were careful to ensure compliance with their obligations under section 4.7.10 of the [Act] by avoiding making an offer as an inducement to open a betting account.

Arrangements with the Club and any club were never limited to new customers only. At all times, arrangements with clubs included existing OkeBet customers. ...

Similar submissions were made in OkeBet's 10 May 2023 response to the VGCCC.

I do not accept OkeBet's submission to the effect that because the offer was not limited to new customers, it did not comprise an inducement to open a betting account. That is because the agreement states that the clubs are to "introduce customers" to OkeBet. Further, the cover email referred to in paragraph 30 above states that the reward is offered for when supporters of the club "sign up with OkeBet" and use the promo code with their "first deposit".

OkeBet also submitted, in its 10 June 2024 submission:

The 'effect' of the VGCCC allegation appears to be that if an action has the potential outcome of a person opening a betting account, then it contravenes section 4.7.10 of the Act. This approach would result in the anomalous outcome that:

a) all bookmaker advertising in Victoria is prohibited (which is clearly not a legally supportable argument) because that advertising can have the effect of resulting in the opening of betting accounts; and/or

b) that the thousands of affiliate arrangements under which affiliates of bookmakers interact with a Victorian resident are prohibited (which is clearly not a legally supportable argument).

I do not accept this submission. OkeBet's conduct does not contravene s 4.7.10 of the Act merely because it was advertising which might have had the effect of prompting a person to open a betting account. Rather, the conduct contravenes s 4.7.10 because it constituted the offer of a reward (to a third party) if in certain circumstances a new customer opened and then maintained a betting account with OkeBet. Conduct (including advertising) that does not offer a reward as an inducement for opening a betting account would not contravene s 4.7.10.

In light of the above, I am satisfied the conduct set out in Ground 3 above gives rise to grounds for disciplinary action within the meaning of ss 4.5A.14(1)(c) of the Act. I have therefore decided to take disciplinary action pursuant to ss 4.5A.14(4) of the Act.

1. The Commission decided to take disciplinary action concerning Ground 3 by fining the applicants $100,000.

1. In October 2024, the applicants sought review of the Decision at VCAT. Shortly after, having heard from the parties at a directions hearing on 18 October 2024, the Tribunal stayed the Decision. The main effect was that the applicants were not liable to pay the fine, subject to the outcome of the proceeding.
2. On 10 November 2025, the application for review came before the Tribunal. Both parties were legally represented. The evidence in this proceeding was a 327 page Tribunal Book.
3. While there were differences in interpretation of the Act and the evidence between the parties, the evidence was not materially in dispute. Neither party called witnesses. The 10 November 2025 hearing enabled the parties to make their submissions as to the Commission's, and so VCAT's, jurisdiction and whether Grounds 1 and 3 were proven.
4. For Ground 1, if VCAT decided it has jurisdiction, the applicants and the Commission submitted that the Commission's decision concerning Ground 1 should be affirmed by VCAT, resulting in the applicants being censured.
5. If VCAT decided it had jurisdiction (the same issues canvassed concerning Ground 1) and found Ground 3 proven, the next step would be to consider submissions from the parties as to penalty.
6. At the end of the hearing I reserved my decision, now given.
7. This is the first time that VCAT has dealt with these issues. The parties advised that previously the Commission pursued at least two breaches of section 4.7.10 (Ground 3), not concerning the applicants in this case, by prosecution in the Magistrates' Court of Victoria, not by disciplinary action under section 4.5A.14, subject to review by VCAT.

1. In considering whether the grounds are proven I applied the standard set out in Karakatsanis & Anor v Racing Victoria Limited [1] [at 38], with reference to Briginshaw v Briginshaw [2].
2. The question is whether I reach a level of 'comfortable satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge achieved in accordance with fair processes' that the alleged events occurred.

1. The 'present basis for interpreting legislation' is described by Professor D Pearce in Statutory Interpretation in Australia, 10th ed (2024) (page 40):

In a statement that has come to be quoted as the present basis for interpreting legislation, the plurality (Kiefel CJ, Nettle and Gordon JJ) in SZTAL v Minister for Immigration and Border Protection present basis [2017] HCA 34; 91 ALJR 936 at [14] said:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

The courts recognise that the application of this approach will in most cases lead a court to having to make what is commonly referred to as a 'constructional choice'. The following observations of Gageler J in SZTAL at [37]-[39] are important to the making of this choice:

The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility 'if, and in so far as, it assists in fixing the meaning of the statutory text'.

The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural', in which case the choice 'turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies'.

Integral to making such a choice is discernment of statutory purpose.

...

Supplementing this general approach and as was noted in Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223; (2018) 268 FCR 128; 363 ALR 343 at [79], 'the task of statutory construction can be assisted by a wide range of more specific principles of statutory construction, many of which have been developed by the courts, while others are now expressed in legislation'. The court observed that:

Some caution is required in selecting and applying the non-statutory or common law principles. They are not inflexible rules and their application in particular circumstances can be nuanced. Moreover, there can be tension between some of the principles. They are not masters, but should be viewed as servants and tools of analysis in the task of statutory construction.

1. The Act's purpose, objectives and outline are set out at section 1.1, which relevantly says:

1.1 Purpose, objectives and outline > > (1) The main purpose of this Act is to re-enact and consolidate the law relating to various forms of gambling. > > (2) The main objectives of this Act are - > > (a) to foster responsible gambling in order to -

(i) minimise harm caused by problem gambling; and

(ii) accommodate those who gamble without harming themselves or others;

...

(d) to ensure that other forms of gambling permitted under this or any other Act are conducted honestly and that their management is free from criminal influence and exploitation;

...

(f) to promote tourism, employment and economic development generally in the State.

(3) In outline, this Act -

(a) generally prohibits gambling and activities relating to gambling unless authorised under this Act or the Casino Control Act 1991;

...

(c) provides for the licensing of wagering and betting competitions, including on-course wagering;

...

(j) confers functions and powers and imposes duties on the Victorian Gambling and Casino Control Commission to oversee gambling in Victoria;

...

(m) sets out offences;

(4) Subsection (3) is intended only as a guide to readers as to the general scheme of this Act.

1. Section 1.3 provides the following relevant definitions:

(a) a person who (whether on the person's own account or as employee or agent of any other person) carries on the business or vocation of or acts as a bookmaker or turf commission agent;

(b) a person who gains or endeavours to gain a livelihood wholly or partly by betting or making wagers;

(a) this Act;

(b) the Casino Control Act 1991;

person includes a body (whether or not incorporated) and a partnership;

registered bookmaker means the holder of a current certificate of registration as a registered bookmaker under Part 5A of Chapter 4;

(a) a person who operates a totalisator in Victoria or elsewhere;

(b) a person who operates a betting exchange in Victoria or elsewhere;

(c) a person who, in Victoria or elsewhere, carries on the business of, or acts as, a bookmaker or turf commission agent;

(d) a person who, in Victoria or elsewhere, gains or endeavours to gain their livelihood wholly or partly by betting or making wagers;

(e) an employee or agent of a person mentioned in paragraph (a), (b), (c) or (d);

1. 'Chapter 2 - General Prohibitions and Authorisations', has the effect that any gambling, other than gambling authorised and regulated under the Act, is illegal.
2. The Commission's power to take disciplinary action against a registered bookmaker is found in Chapter 4 - wagering and betting.
3. Section 4.5A.1 defines 'trading bookmaking partnership' to mean, 'a partnership under the trading name of which wagers are taken'.
4. Under section 4.5A.2, an individual over 18 years old or a corporation may apply to the Commission for registration as a bookmaker. A partnership cannot apply, noting here that partnerships are not legal persons.
5. The Commission decides whether to register a person or a corporation under section 4.5A.4. If registered, a registered bookmaker (and individual or a corporation) receives a certificate of registration and identity card under section 4.5A.6, tying back into the definition of registered bookmaker at section 1.3. Therefore, only individuals and corporations may be registered bookmakers.
6. The Act provides for registered bookmakers to be in partnership, on application to the Commission, which may approve individual registered bookmakers to be in partnership (sections 4.5A.9 and 4.5A.10). Unless registered bookmakers obtain such approval, they may only operate individually.
7. Section 4.5A.14 is the source of power for the Commission to take disciplinary action under the Act.

4.5A.14 Disciplinary action against registered bookmaker or bookmaker's key employee > > (1) In this section -

disciplinary action, against a registered bookmaker or bookmaker's key employee, means any of the following -

(a) the cancellation or suspension of the registration;

(b) the variation of the conditions of the registration;

(c) the issuing of a letter of censure;

(d) in the case of a registered bookmaker the imposition of a fine not exceeding an amount that is 50 000 times the value of a penalty unit fixed by the Treasurer under section 5(3) of the Monetary Units Act 2004;

grounds for disciplinary action, in relation to registered bookmaker or bookmaker's key employee, means any of the following -

(a) that the registration was improperly obtained in that, at the time it was granted, there were grounds for refusing it;

(b) that the registration holder failed to provide information that the holder is required by this Act or the Racing Act 1958 to provide or has provided information knowing it to be false or misleading;

(c) that the registration holder has contravened this Act or the Racing Act 1958 or a condition of the registration;

(d) that -

(i) the registration holder; or

(ii) if the registration holder is a corporation, an executive officer or nominee of the corporation -

has been found guilty of a relevant offence;

(e) that the registration holder has become an insolvent under administration or, if the registration holder is a corporation, a Chapter 5 body corporate;

(ea) that there have been repeated breaches by the registered bookmaker of the bookmaker's Responsible Gambling Code of Conduct;

(f) that the registration holder is, for any other reason, not a suitable person to be registered as a bookmaker or bookmaker's key employee;

(a) an offence against the Racing Act 1958 and regulations under that Act, or a gaming Act or gaming regulations;

(b) an offence (in Victoria or elsewhere) involving fraud or dishonesty;

(c) an indictable offence, or an offence that, if committed in Victoria, would be an indictable offence.

(2) The Commission may serve on the registered bookmaker or bookmaker's key employee a notice in writing giving the holder of the registration an opportunity to show cause within 28 days why disciplinary action should not be taken on grounds for disciplinary action specified in the notice.

(3) The registration holder, within the period allowed by the notice, may arrange with the Commission for the making of submissions to the Commission as to why disciplinary action should not be taken and the Commission must consider any submissions made.

(4) The Commission may then take disciplinary action against the registration holder as the Commission sees fit and does so by giving written notice of the disciplinary action to the registration holder.

(5) If the disciplinary action is the cancellation, suspension or variation of the terms of the registration, it takes effect when the notice under subsection (4) is given or at a later time specified in the notice.

(6) If the disciplinary action is the imposition of a fine, the fine may be recovered as a debt due to the State.

1. Section 4.5A.14(1) tells us what disciplinary action may be taken and against who. Disciplinary action may only be taken against registered bookmakers, being individual bookmakers as discussed above.
2. The three applicants in this proceeding remain registered bookmakers.[3]
3. Subsections (2) and (3) say it is the Commission that may take that disciplinary action. First those subsections set out a process of the Commission putting the registered bookmaker or bookmaker's key employee on notice of allegations, giving the person opportunity to answer the allegations.
4. Subsection (4) makes it clear that it is the Commission that takes the disciplinary action, including a fine not exceeding an amount that is 50,000 times the value of a penalty unit.
5. The value of a penalty unit in Victoria the time of the conduct was $184.92. Therefore, the maximum fine at that time under subsection (4) was $9,246,000. With annual increases in the value of a penalty unit, the maximum fine is now over $10M.
6. Sections 4.5.14A and 4.5A.14B provide further power for the Commission to exercise disciplinary action, in part the power to suspend a bookmaker's registration pending criminal proceedings.
7. Under section 4.5A.15(h), a person whose interests are affected by a decision of the Commission to take disciplinary action against a registered bookmaker or bookmaker's key employee may apply to VCAT for review of the Commission's decision.

1. I now turn to the issues raised by the applicants and/or Commission to be decided:

a) Grounds 1 & 3 - Is the 'wagering service provider' that existed at the time of the Decision, a different wagering service provider from the wagering service provider which existed at the time of the alleged conduct, such that the Commission (and now VCAT) could not find Grounds 1 and 3 proven against the wagering service provider at the time of the Decision? > > b) Grounds 1 & 3 - Does the Commission have the power to take disciplinary action, under section 4.5A.14, against the applicants with respect to a contravention of sections 4.7.10 and 4.8A.6, being, 'offence provisions'? > > c) Ground 1 - Subject to VCAT's decision concerning the above two issues, did the applicants contravene the Act through contravention of section 4.8A.6 by failing to comply with the harm minimisation direction? > > d) Ground 3 - Does the fact that the email in evidence was from the CEO of the OkeBet Partnership to the Ocean Grove Club and the four contracts were drafted to be, or were, between GSM Services Pty Ltd and each of the clubs show that each of the three applicants were not responsible for the conduct? > > e) Ground 3 - Does the evidence in this proceeding prove that the applicants offered a reward as an inducement to open a betting account?

Grounds 1 & 3 - Is the 'wagering service provider' that existed at the time of the Decision, a different wagering service provider from the wagering service provider which existed at the time of the alleged conduct, such that the Commission (and now VCAT) could not find Grounds 1 and 3 proven against the wagering service provider at the time of the Decision?

1. It is convenient to break the above dense heading into the following question:

a) Is the 'wagering service provider' that existed at the time of the Decision; > > b) a different wagering service provider; > > c) from the wagering service provider which existed at the time of the alleged conduct; such that > > d) the Commission (and now VCAT) could not find Grounds 1 and 3 proven against the wagering service provider as at the time of the Decision?

2. Ground 1 was an allegation that the applicants breached section 4.8A.6 which says:

4.8A.6 Offence to not comply with a harm minimisation direction

A wagering service provider must comply with a harm minimisation direction that applies to the wagering service provider.

Penalty: 60 penalty units.

1. Ground 3 was an allegation that the applicants breached section 4.7.10 which says:

4.7.10 Offence to offer inducement to open betting account

A wagering service provider must not offer any credit, voucher or reward as an inducement to open a betting account.

Penalty: 20 penalty units.

1. Therefore, for either ground to be proven, the three applicants must be a 'wagering service provider', that is responsible for the alleged conduct.
2. The applicants submitted this was not the case and so the Commission and now VCAT had and has no jurisdiction to make the decision concerning these grounds.
3. It was submitted that given the definitions of 'wagering service provider', 'bookmaker' and 'person' in the Act resulted in it being that only a partnership that is operating (the term 'trading' was also used) is capable of breaching sections 4.7.10 and 4.8A.6.
4. As detailed below, the conduct was undertaken at the time of a four-way partnership. When the Commission made the Decision, two partners had resigned, leaving a two-way partnership. This was submitted to be a different legal entity from the four-way partnership.
5. That said, it was submitted for the applicants that the Commission always retained the ability to prosecute the four-way partnership in the Courts, which it elected not to do.
6. At the time of the alleged conduct over February/March 2023, the OkeBet Partnership was a four-way partnership formed by Mr Norman Oke, Mr McKay, Mr Opie and Mr Gary Oke. My term 'Wagering Service Provider 4' reflects the four-way partnership.
7. The applicants submitted that this was a particular wagering service provider responsible for any breaches of the Act, where a wagering service provider was prohibited from engaging in conduct, such as by the two sections above.
8. In April 2023, the Commission started its investigation into the OkeBet Partnership's conduct.
9. It is convenient to insert into the chronology here that on 29 August 2023, the Commission posted a media release 'demanding' that wagering providers cease any 'club sponsorship inducement practice'. The Commission referred to some online wagering providers entering into sponsorship agreements with sporting clubs to induce their members to create accounts, 'linking financial incentives to each member of the club that signs up' (the Inducement Post).
10. On 25 September 2023, Mr Gary Oke resigned from the OkeBet Partnership,[4] leaving the three applicants in this proceeding as the partners. The applicants submitted that with Mr Gary Oke's resignation from the OkeBet Partnership, Wagering Service Provider 4 came to an end, with a new entity, 'Wagering Service Provider 3' coming into existence.
11. While the Commission's approval is required for someone to join a bookmaking partnership, no approval is required before resignation.
12. On 1 March 2024, Mr McKay resigned from the OkeBet Partnership.[5] It was submitted that Wagering Service Provider 3 came to an end, and Wagering Service Provider 2 came into existence.
13. On 12 September 2024, the Commission made the Decision against the three VCAT applicants.
14. The applicants submitted that the Commission had no power under the Act to in September 2024 make a disciplinary decision under section 4.5A.14A for contravention of sections 4.7.10 and/or 4.8A.6 concerning the three applicants, because at the time of the Decision, Wagering Service Provider 4 no longer existed, replaced by Wagering Service Provider 2.
15. It was also submitted that the Commission made a hasty problematic decision, described in submissions as retrospectively fitting the Decision to the amorphous social licence claimed by the Commission in the Inducement Post.
16. On 9 October 2024, VCAT received the application from the applicants in this proceeding.
17. To complete the 'partnership history', in June 2025 Mr Norman Oke resigned from the partnership, dissolving the partnership, leaving Mr Mark Opie constituting OkeBet (the current 'Wagering Service Provider 1').
18. It was submitted in part that the Commission purported to take disciplinary action under section 4.5A.14 because it realised that its error with respect to the changing nature of the wagering service providers and reached the view that it could not succeed by bringing a prosecution in the courts.
19. At the end of the applicants' submissions in reply, a somewhat contradictory submission was made that the Commission could have taken action in the courts because that involves an alleged breach of section 4.7.10, where reference need only be made to a wagering service provider, not reliant on the people accused being registered bookmakers.
20. In my view, as the Commission submitted, the submissions for the applicants are flawed and must be rejected.
21. The Act should be read as a whole, in the context of its purpose, objectives and outline set out above.
22. Chapter 2 of the Act generally prohibits gambling other than regulated or authorised gambling.
23. Chapter 4 - Wagering and betting, is the focus here. The purposes of Chapter 4 (see section 4.1.1) include making provision for the carrying on of licensed wagering and betting including imposing controls over the conduct of betting.
24. Section 4.5A.14(1) gives the Commission the power to make disciplinary findings against registered bookmakers, including for contravention of the Act. The term 'wagering service provider' does not appear in that section.
25. The Commission had the power to, and decided to, make the Decision with respect to each of the three applicants. The Commission could also have decided to take disciplinary action against Mr Gary Oke who remained a registered bookmaker. For reasons not known to the Tribunal, the Commission did not.
26. This is in the context that there is no power to take action against the partnership in question, whichever formulation, as a distinct entity either by the Commission as disciplinary action, VCAT on review or in the courts. A partnership is not a legal entity that can be prosecuted.[6]
27. In my view, there is no basis to conclude that the Act creates some form of distinct entity being a 'wagering service provider', being a distinct collection of individuals, where that particular wagering service provider only exists as an entity while those individuals remain in partnership.
28. This can be seen from the definition of wagering service provider. Section 1.3 defines each registered bookmaker as a wagering service provider (meaning (c)), which says, 'a person who, in Victoria or elsewhere, carries on the business of, or acts as a bookmaker'....
29. This is unsurprising because that is what each registered bookmaker does, whether alone or in partnership.
30. While that definition does not include the word 'registered' under the Act only registered bookmakers can carry on bookmaking.
31. The applicants in this case were at the time of the alleged conduct, and remain, registered bookmakers. Under section 3.1, meaning (c), each of them was (and is) a wagering service provider at all relevant times.
32. The concept of wagering service provider applies to a range of actors (see definitions (a) to (e)) regulated by the Act. Registered bookmakers are 'subset (c)' within the definition.
33. To interpret the Act as the applicants submit, would lead to the absurd outcome, which Parliament cannot have intended, that any bookmaking partnership could avoid disciplinary action under the Act by having a partner resign from the partnership. As noted above, unlike the Commission's power to approve registered bookmakers joining a partnership, it has no power to prevent a resignation.
34. For completeness I note, there appears no basis for the submission that the Commission took disciplinary action because it took the view it could not succeed in the courts.
35. Apart from there being no evidence before the Tribunal to support this submission, there is in evidence an 'undated'[7] memorandum between an investigator employed by the Commission and the Commission's manager of investigations, concerning the alleged breach under section 4.8A.6.
36. The memorandum considers, but does not, recommend the issuing of a non-compliance notice (because the alleged seriousness of the conduct required a stronger response) or the issuing of a penalty infringement notice (because such notices may not be issued concerning a breach of section 4.8A.6).
37. The memorandum recommends disciplinary action under section 4.5A.14 because:

Disciplinary action would provide an avenue for the Commission to address the confirmed breaches directly without the need to expend additional resources preparing a Brief of Evidence or time prosecuting them through the Magistrates Court.

1. There is no equivalent memorandum in evidence concerning the alleged breach of section 4.7.10.

Grounds 1 & 3 - Does the Commission have the power to take disciplinary action, under section 4.5A.14, against the applicants with respect to a contravention of section 4.7.10 and/or 4.8A.6, being, 'offence provisions'?

1. The applicants submitted that while section 4.5A.14(1)(c) gives the Commission the power to make disciplinary findings against registered bookmakers for contraventions of the Act, the correct interpretation of the Act is that the Commission may only take action for contraventions of sections 4.7.10 and 4.8A.6 by prosecution in the courts.
2. Put another way, it was submitted that section 4.5A.14 does not empower the Commission to take disciplinary action against registered bookmakers where a section of the Act provides a penalty provision such that the Commission may prosecute in the courts for contravention of the section.
3. The applicants submitted that the Act creates a tiered system where:

a) Contraventions of sections such as 4.7.10 and 4.8A.6 can be prosecuted through the Courts (only); > > b) Contraventions that can be dealt with through infringement notices; and > > c) Other contraventions of the Act that can be dealt with through disciplinary action under section 4.5A.14.

4. Returning to the words of section 4.5A.14(1) concerning grounds for disciplinary action against a registered bookmaker, the applicants submitted that:

a) The ground for disciplinary action (c), that the registration holder has contravened this Act; is limited by > > b) The ground for disciplinary action (d), that the registration holder has been found guilty of a relevant offence by its existence excludes taking such action under (c); in that > > c) If an alleged contravention of the Act could lead to a registration holder being found guilty of a relevant offence, the Commission has no power to take disciplinary action concerning that alleged contravention ground for disciplinary action (c).

5. From here, to avoid confusion with the 'grounds' set out in the Decision, I refer to the Commission's power to take disciplinary action under section 4.5A.14 for a contravention of the Act as 'basis (c)' and after a finding of guilt of a relevant offence as 'basis (d)'.
6. While the focus of the applicants' submissions was the disciplinary action taken with respect to Ground 3 and section 4.7.10, if the Commission could not take that disciplinary action for contravention of that section, it could also not, on the submitted interpretation, take disciplinary action for a contravention of section 4.8A.6 which attracts a potential penalty of 60 penalty units (Ground 1).
7. In support of this submission the applicants cited:

a) Section 4.5A.14A (suspension of bookmakers registration pending criminal proceedings) which permits the Commission to suspend a bookmaker's registration if the bookmaker has been charged with an indictable offence or the interstate or Commonwealth equivalent to an indictable offence. It was submitted its existence supports the distinction between 'contravention of the Act' and 'finding of guilt'; > > b) Section 10.5.20, (power to serve an infringement notice) says that an inspector may serve an infringement notice on any person that the inspector has reason to believe has committed an offence against a gaming Act or gaming regulations that is prescribed by the regulations as an offence in respect of which an infringement notice may be issued. Section 4.7.10 is not one of those offences. This was described as another indicator that given an inspector cannot serve an infringement notice related to a breach of 4.7.10, Parliament did not intend that the Commission could take action against a bookmaker by way of administrative decision-making under section 4.5A.14; > > c) Given that the maximum penalty for a contravention of section 4.7.10 is 20 penalty units and the maximum penalty as part of disciplinary action under section 4.5A.14 is 50,000 units, Parliament must have intended the two sections to be used and to operate very differently, for different purposes; > > d) similarly, the different evidentiary standards that apply between proving a contravention of 4.7.10 in the courts (beyond reasonable doubt) and 4.5A.14 (Briginshaw) indicate that Parliament must have intended the two sections to be used and to operate very differently, for different purposes; > > e) Parliament would not have intended to create a double jeopardy whereby a registered bookmaker could face both action by the Commission under basis (c), and prosecution separately under section 4.7.10; > > f) The principle of statutory interpretation, 'expressio unuis est exclusion alterius' (an express reference to one matter indicates that other matters are excluded). That is, the reference to a finding of guilt in basis (d) means that the power under basis (c) cannot be exercised with respect to a provision of the Act which may be prosecuted under the Courts resulting in a finding of guilt; > > g) The submitted construction has, until the making of the decision under review, been uncontroversial. Offences were always prosecuted by the Commission in the Courts; > > h) The situation with respect to this case was described as the first time the Commission has ever invoked its powers under section 4.5A.14 to sanction a bookmaker for a contravention of section 4.7.10. Mr Brown for the applicants spoke of previous prosecutions in the Magistrates' Court of Victoria, mentioning two such cases;

1. The Commission took the disciplinary action path because it took the view that it could not prove a breach of section 4.7.10 in the Courts; and

j) Finally, concerning the Today FM decision of the High Court of Australia (see below), it was submitted that decision could be distinguished from the current situation as it concerned breach of a broadcasting licence condition. It was submitted there is a distinction between the breach of a licence condition and a breach that can form an offence under legislation.

8. The applicants' submissions are rejected. There is no reason to read into the words of basis (c) that the taking of disciplinary action under that section excludes contraventions to which basis (d) can apply.
9. First, if the Parliament intended the applicant's submitted limitation, it had the opportunity to clearly say so. The absence of such express limitation indicates Parliament's intention to confer broad power on the Commission to achieve the broad regulatory outcomes which are an essential part of the Act's objectives.
10. Second, basis (d) concerns where findings of guilt related to contraventions of the Act have been made, the past tense. Basis (c) concerns situations where contraventions are alleged but not proven. That lack of temporal overlap indicates against the submitted interpretation.
11. Third, and critically, as submitted by the Commission, section 3.2.25 of the Act, 'Disciplinary action against a venue operator'. This is the equivalent provision concerning gaming venue operators to section 4.5A.14. It provides the type of express limitation that the applicants submit is implied in section 4.5A.14.
12. Basis (d) at section 3.2.25 provides as grounds for disciplinary action, contravention of a provision of the Act, with the express limitation:

being a provision contravention of which does not constitute an offence'.

1. In section 3.2.25, basis (d) is followed by basis (e), concerning where the venue operator has been found guilty of various offences.
2. Fourth, the long bows that the applicants draw concerning the substance of sections 4.5A.14A (suspension of bookmakers registration pending criminal proceedings) and section 10.5.20 (power to serve an infringement notice) in favour of the submitted limitation on basis (c), fall away in the face of the express limitation in section 3.2.25.
3. Fifth, as the Commission submitted, power such as that on its face are conferred by basis (c) can involve an administrative decision maker deciding whether it is satisfied that conduct by a person occurred where such conduct involves a criminal offence.
4. The Commission rightly cited the High Court of Australia in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (Today FM):[8]

More generally, ... it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action. The decisions of this Court in Attorney-General (Cth) v Alinta Ltd and Albarran v Companies Auditors and Liquidators Disciplinary Board accept so much**.** ... (footnotes omitted)

1. As an example in Victoria, referrals from health practitioner boards such as the Medical Board of Australia to VCAT, under the Health Practitioner Regulation National Law (Victoria) Act 2009,[9] (National Health Law) which are disciplinary proceedings, too commonly involve accusations against a health practitioner that the practitioner has sexually assaulted a patient, where the practitioner denies the allegation.
2. The applicants' attempt to distinguish the Today FM case from the situation here is rebutted by the fact that the High Court in the above passage is speaking generally, not focused on the particulars of that case.
3. Sixth, I am not persuaded that the maximum, expressio unuis est exclusion alterius leads to the result submitted by the applicants.
4. Pearce's, Statutory Interpretation in Australia, 10th edition says:

... the application of the expression unius approach will be largely one of impression ...

Because of these problems with respect to its use, the ... approach is applied by the courts with extreme caution. When it is followed, it is used more often as a bolster to a predetermined interpretation rather than as a rule that produces a result in itself.[10]

1. I do not accept that reference in basis (d) to guilt of a relevant offence is an express reference excluding conduct that leads to guilt of a relevant offence not also being able to constitute conduct in contravention of the Act (basis (c).
2. Seventh, it was submitted for the applicants that Parliament cannot have intended that the Commission could take disciplinary action where the prosecution in the courts had failed, say where the charge had not been proven beyond reasonable doubt or where it doubts that it could prove the allegations beyond reasonable doubt and so does not prosecute in the courts.
3. That scenario regularly arises in referrals to VCAT under the National Health Law.
4. Seventh, there is no basis to find that the Commission decided to make an administrative decision because it could not prove the breach of section 4.7.10 in the Courts. There is no evidence to that effect.
5. Eighth, on the issue of the different penalty units at section 4.5A.14 (50,000 penalty units) and sections 4.7.10 (20 penalty units) and 4.8A.6 (60 penalty units), the Commission described the difference as being that the courts punish with respect to offences and the Commission's broader protective power. It was noted for the Commission that on the applicants' submission, a person could be fined in the Magistrates' Court and then be the subject of disciplinary action under basis (d), with a further fine of up to 50,000 penalty units.
6. I asked, potentially in support of the applicants' submissions, whether the juxtaposition of basis (c) and basis (d) was creating a 'beyond reasonable doubt finding by the courts hurdle', before the Commission could take disciplinary action under basis (c)?
7. However, in my view if that were the case, as with the limitation clearly set out at section 3.2.25, Parliament would not have in such an obscure unstated fashion in section 4.5A.14, created such a hurdle.
8. Finally, it was submitted for the Commission that it will always be that a contravention of the Act, providing jurisdiction to take action under basis (c), will also involve potential prosecution for that contravention in the courts. Therefore, it was submitted that the interpretation proposed by the applicants would be the equivalent of crossing basis (c) out of section 4.5A.14(1)).
9. I do not regard it as necessary to undertake a laborious analysis of the entire Act to address that submission.
10. With the applicants' preliminary submissions, which if successful may have brought this proceeding to an end with the decision set aside rejected, I turn to whether the grounds are proven.

Ground 1 - Did the applicants contravene the Act through contravention of section 4.8A.6 by failing to comply with the harm minimisation direction?

1. While the applicants did not, beyond the jurisdictional submissions now rejected, contest the Commission's findings on Ground 1 and the censure of the applicants, in order to decide whether to affirm that element of the decision under review, the Tribunal must 'stand in the shoes of the decision-maker' and decide whether Ground 1 is made out on the basis of the evidence and submissions before it.
2. I have affirmed the decision that the applicants contravened section 4.8A.6.
3. Section 4.8A.6 provides that a wagering service provider (that term in part synonymous with a registered bookmaker) must comply with a harm minimisation direction that applies to the wagering service provider.
4. The Harm Minimisation Direction published in the Victorian Government Gazette on 6 July 2022 states at clause 5.1:[11]

A wagering service provider or person acting on behalf of a wagering service provider must not send any direct marketing to a person unless that person has provided his or her express consent to receive direct marketing.

1. As the partnership admitted in a letter to a Commission inspector, on 21 July 2023 at 1:53 pm, the Partnership as OkeBet, via a staff member, sent a promotional email to 1,030 self-excluded people.
2. The email offered, 'enhanced odds', 'cash-back up to $100 if a selection runs 2nd on selected races across Caulfield & Rosehill', 'the best market odds for #8 Chayse N Artie in Race 2 at Doomben' and 'boosted odds for Rolls and Mollynickers to both win their races'.
3. At 3:17 the same afternoon, the OkeBet Partnership sent a retraction email to the self-excluded people, advising that the promotional email had been sent in error. The Partnership did not permit any of the self-excluded people to redeem the promotion in the promotional email or reactivate their OkeBet account.
4. Five people who received the email complained to the Commission. Each person had well before receiving the email, informed OkeBet that they did not wish to be permitted to bet with OkeBet and were 'self-excluded' at the time.
5. Sending the email comprised "direct marketing" within the meaning of clause 5.1 of the Harm Minimisation Direction.
6. The fact that a customer has self-excluded from holding a betting account with OkeBet is clear evidence that the customer does not consent to receiving direct marketing from OkeBet, and has communicated their lack of consent to the receipt of direct marketing from OkeBet.
7. A customer who has self-excluded is a customer who has not provided his or her express consent to receive direct marketing. OkeBet's conduct in sending the Email to self-excluded customers constitutes a direct breach of clause 5.1 of the Direction.
8. It follows that a ground for disciplinary action exists under section 4.5A.14(1)(c) of the Act, in that (by contravening cl 5.1 of the Direction) the registration holder has contravened s 4.8A.6 of the Act.
9. Turning to the issue of penalty, the evidence before VCAT proves that at least some self-excluded people receiving the email suffered harm. This can be seen from the five complaints the Commission received. They express high concern to outrage.
10. One complainant described receiving a 'disturbing email' which was particularly distressing given the person's problem gambling such that, 'the email's content has had a significant negative impact on my mental health'. This person described the retraction email as shocking given the negative impact on that person and probably other people.
11. Another complainant described receiving the email and describing the Partnership as 'scum' and 'predators online' who had 'ruined' the person's life.
12. Another complainant spoke of not having much trust in the Commission, regarding it as part of the problem in protecting the gambling industry.
13. Another complainant spoke of, previously, losing $40,000 through gambling with the OkeBet partnership over 10 days.
14. The other complainant described self-excluding months before the email and said that the email caused significant mental distress, in part being tormented by the email enticing the person to gamble. This person viewed sending the email as negligence by the OkeBet Partnership.
15. At the hearing in this proceeding, I indicated that I would likely, subject to the jurisdictional issue which has now fallen away, affirm the censure.
16. However, now with a clearer focus on the likely harm caused, I am considering varying the decision to fine the applicants, having regard to OkeBet's acknowledgement that the email was inadvertently sent to unintended recipients, its rapid clarification and its submission that it has taken significant steps to take corrective and preventative measures to ensure there is no repeat of this error.
17. The above orders provide the parties with the opportunity to make further submissions on penalty.

Ground 3 - Does the fact that the email in evidence was from the CEO of the OkeBet Partnership to the Ocean Grove Club and the four contracts were drafted to be or were between GSM Services Pty Ltd and each of the clubs show that each of the three applicants were not responsible for the conduct?

1. I quote from the written outline of submissions on behalf of the applicants:

The [Commission] alleges that the Applicants breached section 4.7.10 on four occasions.

The [Commission] alleges that these four breaches occurred as a result of the Applicants' business OkeBet sponsoring community sporting clubs.

The alleged contravening conduct by the Applicants is said by the [Commission] to be:

a) the email sent by someone other than the Applicants to Ocean Grove Football and Netball Club on 13 February 2023 (Ocean Grove Allegation);

b) an agreement signed by someone other than the Applicants and Chelsea Football Club (Chelsea Allegation);

c) an agreement signed by someone other than the Applicants and Dandenong Football Club (Dandenong Allegation); and

d) an agreement signed by someone other than the Applicants and Macedon Football Netball Club (Macedon Allegation).

The [Commission] alleges that the Applicants breached s.4.7.10 of the Act because:

a) someone other than the Applicants (but not the Applicants);

b) sent an email and/or an agreement to four (4) sporting clubs.

There is no evidence that any of the Applicants engaged in the conduct that is alleged to contravene section 4.7.10 of the Act.

1. The email on which the Commission relied in its Decision and presented as evidence in this proceeding was an email from Mr Tim Donohue, at least then CEO of OkeBet, to the Ocean Grove Football Netball Club dated 13 February 2023 offering the sponsorship in part the subject of the allegations against the applicants.
2. This email established that more likely than not, Mr Donohue as the Partnership's CEO was acting as an agent for the applicants in sending the email to the club.
3. During an interview with the Commission's investigators on 20 October 2023, then a partner of OkeBet and a shareholder as he described it during the interview, Mr Mark Opie was shown the email and agreed that Mr Donohue was CEO of the OkeBet Partnership who oversaw all areas of business. Mr Opie expressed no surprise at the email from Mr Donohue to the Club. Mr Opie agreed he (Mr Opie at the interview) spoke on behalf of the OkeBet Partnership.
4. The applicants provided no persuasive contrary evidence, such as evidence that the CEO was acting without the applicants' authorisation.
5. As the Commission submitted, if Mr Donohue was not acting as an agent for the Partnership, with him not being a registered bookmaker, he would be breaching the Act, because (broadly speaking) only registered bookmakers may offer wagering services.
6. The submission, effectively that Mr Donohue was on 'a frolic of his own' without authorisation from the OkeBet Partnership is rejected.
7. Turning to the second limb of the submissions, there were four "sporting club affiliate agreements' in evidence at VCAT.
8. Each agreement was between 'GNSM Services Pty Ltd - Trading AS: OKEBET under partnership licence (OkeBet)' and one of the four clubs.
9. While Mr Brown made a statement from the bar table that this company did not in fact trade as OkeBet, there was no further evidence on this matter. In response to a question from me, Mr Brown advised that the director or directors of the company were at least in part drawn from the registered bookmakers (I take that to be of the four registered bookmakers at the time of the conduct).
10. After the hearing, I returned to the record of the 20 October 2023 interview with Mr Opie. Mr Brown attended the interview as Mr Opie's legal advisor. The interviewers referred to a company search for GNSM Services Pty Ltd which named as directors Mr Norman Oke, Mr Gary Oke and Mr Mark Opie. Mr Mark Opie was not able to explain why Mr Mackay was not named as a director.
11. I mention here for completeness that in response to it being put by the interviewers to Mr Opie that the applicants had offered inducements to the sporting clubs, he either made no comment or denied what was put to him.
12. The agreements establish that it is more than likely that these agreements were intended to be/were between the applicants through the OkeBet Partnership, via GNSM as an agent of the OkeBet partnership, and each of the clubs.
13. The applicants' submission with respect to the agreements is rejected.

Ground 3 - Does the evidence in this proceeding prove that the applicants offered a reward as an inducement to open a betting account?

1. The Commission relied on the email from Mr Donohue, CEO, to the Ocean Grove Football Netball Club dated 13 February 2023 and the four agreements.

1. The email was titled, 'Okebet Ocean Grove FNC Sponsorship' and said:[12]

Hi Rob,

Okebet will be delighted to sponsor the Ocean Grove Football Netball Club .

Mark was rapt to catch up with you.[13]

Our system is quite simple and operates as follows:

• Your supporters sign up with Okebet through the QR code, App store or online.
• With their first deposit they MUST use your unique promo code-to be confirmed.
• Okebet will send you weekly updates re your growing customer list.
• Your unique customer list gets reviewed quarterly by Okebet.
• You will get rewarded for your active customers for the quarter - $100 per active customer.
• You are eligible to receive $100 per active customer per annum.
• Okebet will send you a quarterly advice asking you to raise an invoice for $X - e.g. 50 active customers x $100= $5,000 invoice.
• Okebet will make the payment into your nominated account.
• Every active customer is eligible for another payment every 12 months- so you will get paid again!!

Agreement attached for your execution.

If all ok, please fill in details required, sign and return.

Any further questions please call Mark or myself.

1. The copy of the five-page proposed 'Sporting Club Affiliate Agreement' was drafted to be between GNSM Services Pty Ltd and the Ocean Grove Football Netball Club, to start on 13 February 2023. It was apparently electronically signed by Mr Donohue but not signed by any representative of the Club. The agreement refers to the club as 'Affiliate'.[14]
2. The Recitals say:

OkeBet holds a bookmaking license that permits it to accept wagers from customers in Australia and elsewhere over the internet.

Affiliate offers to introduce customers to OkeBet.

OkeBet and Affiliate agree to enter into this Affiliate Agreement on the terms and conditions set out in this Agreement.

1. The Schedule to the agreement provides for the club's bank account details to be inserted (not inserted in the draft in evidence) and stipulates a "commission rate" of, '$100 per active client, per 12 month period, paid quarterly in arrears + GST if affiliate registered for GST'.
2. The terms and conditions say:

1. This Agreement continues until OkeBet or Affiliate terminates it in writing. 2. Affiliate must:

(a) comply with all laws; > > (b) follow OkeBet's reasonable directions about the promotion of OkeBet (including the Marketing Compliance Guide); > > (c) obtain OkeBet's prior approval for all OkeBet marketing items including any marketing items on social media or Affiliate's website; > > (d) not do anything that will damage OkeBet's reputation; and > > (e) not promote OkeBet to anyone under the age of 18.

(a) OkeBet may refuse customers or close betting accounts; > > (b) OkeBet retains absolute discretion around providing customers with bonus bets, deposit matches and other promotional offers; > > (c) OkeBet can withdraw any code or link at any time; > > (d) OkeBet will collect information about the Affiliate to ensure OkeBet's compliance with all regulatory and licensing requirements, and that any ID information collected can be verified with the issuer of that document or with a third-party provider such as GreenID.

1. OkeBet will pay Affiliate a commission (as per the Commission Rate set out in Item 7 of the Schedule). 2. A review will be conducted three (3) months after the commencement of this Agreement and each three (3) months thereafter to calculate the number of clients that you have referred to OkeBet and for which you are eligible to receive the referral fee. So, for example, assume that this Agreement is entered into on 1 January 2022. On 1 April 2022, a review will be conducted to calculate the number of clients who have relevant activity in the period (bet count, number of weeks bet, etc) 1 January 2022 to 31 March 2022. A referral fee of $100.00 for each such client will be paid to you within seven (7) days of the review, in this case by 8 April 2022. A similar review will be conducted on 1 July 2022 to review and determine the number of clients referred by you who qualify for the referral fee for the period 1 April 2022 to 30 June 2022. Any clients for whom a referral fee has been paid in a particular quarter will be ineligible for any further referral fee until the equivalent quarter in the following year as the referral fee is payable once annually per active client. 3. OkeBet may terminate this Agreement at any time in its sole and absolute discretion by giving Affiliate three (3) months' written notice. 4. Affiliate may terminate this Agreement at any time in Affiliate's sole and absolute discretion by giving OkeBet three (3) months' written notice. 5. OkeBet will advise Affiliate in writing of any changes to these terms and conditions. If Affiliate does not agree with any amendments OkeBet makes to this Agreement, the period of written notice is reduced to three (3) months. 6. Affiliate or OkeBet may terminate this Agreement with immediate effect where the other party is in material breach. 7. Upon termination and without limiting any other provision of this Agreement:

(a) all rights and licences granted to Affiliate will terminate; > > (b) Affiliate must cease using and remove all OkeBet materials; and > > (c) Affiliate will be entitled to unpaid commission properly due and payable by OkeBet, if any, earned on or prior to the date of termination but Affiliate will not be entitled to Commissions after the date of termination.

1. Affiliate agrees that it will not during the Term provide affiliate services similar to those provided to OkeBet under this Agreement to any other bookmaker offering services into the Australian market. 2. If GST is payable on a taxable supply made under this Agreement, the party providing the consideration for that taxable supply must also pay the amount of GST payable in respect of that taxable supply as additional consideration. 3. Any reference in this Agreement to revenue, price, sales or a similar amount, or to cost, expense or other similar amount is a reference to that amount exclusive of GST. 4. This Agreement is governed by and is to be construed in accordance with the laws applicable in Victoria, Australia. 5. Both Affiliate and OkeBet are independent contractors in relation to the other party with respect to all matters arising under this Agreement. Nothing in this Agreement shall be deemed to establish a party as the partner, agent, or legal representative of the other party for any purpose or create any partnership, agency or trust, and no party has any authority to bind the other party in any way.
2. After the signature block, there is, 'Annexure A - Marketing Compliance Guide':

1. Affiliate may only make available to Customers or non-customers promotional offers that have been approved by OkeBet and in accordance with any terms and conditions relating to the promotional offer.

1. Affiliate is not permitted to offer any incentive or inducement to a person to:
   • open a Betting Account (other than saying that offers are available to existing customers of the OkeBet); or
   • not close a Betting Account; or
   • to refer someone else to open a Betting Account.
2. Affiliates may provide a deposit offer to a Customer only after they have opened a Betting Account. Affiliate cannot imply that they can provide a deposit offer at any stage before a prospective customer opens a Betting Account.
3. Affiliate must not advertise into New South Wales any promotional offer other than OkeBet's regular betting markets, and then, only with the OkeBet's approval.
4. All Affiliate Marketing must include 'Gamble Responsibly' and if space permits 'Gamble Responsibly. Call 1800 858 858'.

1. Affiliate must not make any representation in Affiliate Marketing or otherwise that is untrue, misleading or deceptive.

1. SMS and email:
   • may only be sent with express or inferred consent;
   • must include the contact details of the sender;
   • must include a functional opt-out facility;
   • must not be sent to a person if they have opted-out of receiving direct marketing.

1. Telephone calls must not be made to anyone on the Do Not Call Register - www.donotcall.gov.au
2. In all telephone calls, Affiliate must identify the business that they represent ie. Affiliate not OkeBet.
3. If a person makes it known that they do not wish to be contacted by telephone, Affiliate must professionally and courteously end the conversation.

1. Affiliate must not advertise in locations or programs targeted at Minors. Affiliate must ensure that they do not market to Minors.
2. If a Customer advises that they have a gambling problem or addiction, or requests any of the following, that information must be passed on to the OkeBet immediately:
   • to set a deposit limit set on their Betting Account;
   • to 'take a break';
   • closure of their Betting Account; or to be self-excluded.

1. Affiliate must:
   • not disclosure any person's information to any third party without the Customer's consent;
   • take reasonable steps to protect every person's information from unauthorized access, use or disclosure;
   • not transfer Personal Information outside Australia, or allow any third party outside Australia to access to it;
   • immediately advise OkeBet if Affiliate becomes aware of any unauthorized access, use or disclosure of a person's Personal Information.

1. A five-page Sporting Club Affiliate Agreement with Macedon Football Netball Club[15] was drafted to start on 20 March 2023, apparently electronically signed by the Club and Mr Donohue. The Agreement is in identical terms to the Ocean Grove Agreement. The Club's bank account details are inserted.

1. A three-page Sporting Club Affiliate Agreement with the Chelsea Football Club [16] was drafted to start on 8 February 2023, apparently electronically signed by the Club and Mr Donohue. The Club's bank account details are not inserted., The Agreement is for three pages, in identical terms to the Ocean Grove agreement. However, the two page Annexure, if it existed, was not in evidence.
2. The Commission submitted that I could infer that the missing pages were originally included in the signed agreement.
3. I accept that submission.

1. A five-page Sporting Club Affiliate Agreement with Dandenong Football FC[17] was drafted to start on 28 February 2023, apparently electronically signed by the Club and Mr Donohue. The Club's bank details are not inserted. The agreement is in identical terms to the Ocean Grove Agreement.

1. The Commission submitted that the ordinary meaning of 'inducement' (a thing that persuades or leads someone to do something) should be adopted in respect of the use of that word in section 4.7.10. I agree.
2. The Commission submitted that section 4.7.10 should be interpreted as applying in two scenarios.
3. First, reflecting the logic of the Decision, a contravention of the section is proved if it is proven that:

a) the applicants made an offer to a club to reward the club (the offer not proven to have been passed on to a club member) as an inducement to the club; > > b) that if a member of the club (not the club which cannot open an account) opened an account; > > c) the applicants would pay the club $100 (annually) for each club member who opened and maintained an active account.

4. I refer to this as the club inducement submission.
5. Second, a contravention of the section is proved if it is proven that:

a) the applicants made an offer to a club member to reward the club as an inducement to the club member; > > b) via the club receiving from the applicants and passing on the offer and inducement to the club member; > > c) that if the club member opened a betting account, the applicants would pay the club $100 (annually) while the account was active.

6. I refer to this as the member inducement submission.
7. The club inducement submission reflected the Commission's reasons in finding that the applicants contravened section 4.7.10 in that:

a) that the email from Mr Donohue to the Ocean Grove club was an offer that the club would receive $100 per member or associate of the club who opened a betting account with OkeBet and became an active client; > > b) OkeBet made offers to each of the sporting clubs of a reward of the cash payments to the club as an inducement to the club; and > > c) the fact that the reward was offered to an entity (sporting club) which was a different legal person from the individual being asked to open a betting account led to the interpretation of section 4.7.10 as covering the scenario where (as proven with respect to the four clubs) members were to be made an offer to open betting accounts where the reward would be to the club.

8. The applicants submitted that the elements of proving a contravention of section 4.7.10 are:

a) Was there a wagering service provider? > > b) Was there an offer of any credit, voucher or reward? > > c) Was that offer made as an inducement to open a betting account?

9. These elements were proposed by Mr Brown as a matter of logic, not reported case law, as previous breaches had been prosecuted and decided in the Magistrates' Court of Victoria, which does not publish orders and reasons in such matters. Neither party offered any case law relevant to analysing the elements of a contravention of section 4.7.10.
10. The applicants submitted that the club inducement submission should be rejected with the plain meaning of the section being that the inducement to make an offer of reward for opening an account must be made to a person who had the capacity to open an account. Here, contravention could only be proven if there was proof that the club member received the offer, where the applicants submitted there is no such evidence.
11. In deciding the proper interpretation of section 4.7.10 in the context of deciding whether the applicants have contravened the section with respect to disciplinary action under section 4.5A.14(1)(c), the principles of statutory interpretation with respect to penalty provisions are relevant.
12. Returning to Statutory Interpretation in Australia, Pearce discusses the statutory interpretation of 'remedial legislation' and 'penal statutes' including sections of legislation which create offences which may be prosecuted.
13. He discusses the dilemma of legislation being beneficial and penalising conduct:[18]

A very real problem can arise where, to achieve its beneficial purpose, an Act penalises certain conduct. Then there is a conflict between the approach of interpreting beneficial legislation liberally to achieve its purpose and, as is discussed below, not extending the operation of a penal provision beyond its strict words. This conflict is illustrated by Mathews v Foggitt Jones Ltd [1925] HCA 13; (1925) 37 CLR 455. The case concerned an Act which prohibited, as a health safety measure, the bringing into the Newcastle area of any portion of the carcass of an animal slaughtered outside the area. The weighty question that had to be determined by the highest court in the land was whether a sausage was a portion of the carcass within the meaning of the Act. Knox CJ and Gavan Duffy J held that it was not. Isaacs J held that it was. Isaacs J quoted Lord Shaw in Butler (or Black) v Fife Coal Co [1911] UKLawRpAC 74; [1912] AC 149 at 178-9:

The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure.

The fact that this conflicts with the approach adopted in relation to the interpretation of penal statutes was not alluded to. It was discussed, however, by the High Court in Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156; 64 ALR 195. There the court indicated that it was necessary to look at the dominant purpose of the legislation. If, as in the instant case, this was to protect workers from risk of injury, the strict construction required of a penal statute should not be adopted so as to deprive a worker of the protection the parliament intended to afford. See also R v Irvine [2009] VSCA 239; (2009) 25 VR 75 at [90].

This approach accords with that adopted by Isaacs J in Mathews' case and seems to be that which best resolves any conflict. The judgment in Waugh's case makes the point that the obligation imposed by the Act must be apparent, but within that limitation there is no room for a limited construction to be placed on the operation of a statute the purpose of which is remedial or beneficial. When interpreting beneficial legislation 'the rule of strict construction of penal provisions is one of last resort' (at 164-5; 200-1). This statement was endorsed in Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 109-10; [1997] HCA 53; 149 ALR 623 at 640

1. Pearce later returns to interpreting statues that create offences:[19]

However, perhaps the most frequently quoted statement in more recent cases is that of Gibbs J in Beckwith v R [1976] HCA 55; (1976) 135 CLR 569 at 576; [1976] HCA 55; 12 ALR 333 at 339:

The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences ... The rule is perhaps one of last resort.

This statement was endorsed by the High Court in Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [1983] HCA 44; (1983) 155 CLR 129 at 145; [1943] ArgusLawRp 68; 50 ALR 1 at 15 and Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164; [1986] HCA 12; 64 ALR 195 at 200 In R v A2 [2019] HCA 35; (2019) 269 CLR 507; 373 ALR 214 at [52] Kiefel CJ and Keane J said:

A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any 'loose' construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.

1. In my view, the Act, through its objectives and substance, is clearly remedial legislation to foster responsible gambling, minimise the harm caused by problem gambling and to ensure that permitted gambling is conducted honestly, free from criminal influence and exploitation.
2. Section 4.7.10 must be interpreted to promote responsible gambling free from prohibited inducements made by wagering service providers.
3. Adopting both the 'club inducement submission' and the 'member inducement submission' based on the text, which is not ambiguous, as two paths by which a wagering service provider may breach the section furthers the Act's purposes, without the need for any loose construction.
4. Applying the club inducement interpretation I find:

a) the applicants made an offer to each of the four clubs to reward each of the clubs as an inducement to each the clubs; > > b) that if a member of the relevant club opened an account; > > c) the applicants would pay the club $100, annually, for each club member who opened and maintained an active account.

5. Concerning the Ocean Grove Club, the inducement was made by Mr Donohue on behalf of the OkeBet Partnership by way of the email and the attached draft contract. The inducement was made to the Club when it received the offer. It is immaterial that there is no evidence that the Club entered into the contract.
6. Concerning the three other clubs, the signed contracts are proof of the OkeBet Partnership making the offer for reward as an inducement to each of the clubs. It can only have been through receiving offers from the OkeBet Partnership that the contracts were signed.
7. In making these findings, I accepted the Commission's submissions that:

a) The email from Mr Donohue to Ocean Grove is proof that the Partnership's objective was to secure new customers opening betting accounts. The email references supporters signing up with OkeBet, making their first deposit and to the growing list of members who would sign up to OkeBet; > > b) The focus on new customers is seen by term and condition 5 in the draft agreement for Ocean Grove and the signed agreements for the other clubs, including quarterly reviews of the number of clients the clubs had referred to OkeBet, acknowledging that existing OkeBet customers could be included;

This is critical because, as the Commission submitted, to the extent that the offer was to club members who already had an account, that would not be a breach of section 4.7.10 because those members could not open a new account;

1. Similarly, the draft agreement and agreement was squarely focused on club members, other than existing OkeBet customers, opening new accounts with the Partnership.

d) While the applicants submitted this was contradicted by clause 2 of Annexure A:

Affiliate is not permitted to offer any incentive or inducement to a person to open a Betting Account (other than saying that offers are available to existing customers of the OkeBet) that provision is not relevant,

this concerns the club (not OkeBet) making an offer to members on top of the offer made by OkeBet. For example, this could be at a presentation night, saying that if members opened accounts, the club would give them a $25 bar voucher (leading to the club receiving a net $75 from the first $100 payment from the Partnership);

e) While there is no evidence in this proceeding that any club member opened an account with OkeBet, that is not relevant. Contravention of section 4.7.10 does not require evidence that the inducement caused a person to act because of the inducement. Put another way, the section does not require that the inducement was successful; and

f) Section 4.7.10 does not prohibit advertising, or sponsorship, by a registered bookmaker of a sporting club, so long as the advertisement does not include an inducement to open an account for reward.

1. I rejected the submission for the applicants conerning clause 4.1 of the Ministerial Direction dated 6 July 2022 (after section 4.7.10 was enacted) which says, "a wagering service provider must not offer any credit, voucher, reward or other benefit to an account holder as an inducement to refer another person to open a betting account.

1. It was submitted that this provision was added to previous regulation to cure the mischief of wagering service providers making an inducement to an account holder (a person) if that person caused another person to open a betting account.
2. Whatever the function of the Ministerial Direction having relevance to the interpretation of section 4.7.10, which is doubtful, there is no place for application by analogy where the club is not an account holder.
3. Concerning applying the member inducement interpretation, I found:

a) the applicants made offers to club members of the Macedon, Chelsea and Dandenong clubs (not the Ocean Grove Club) to reward each of the three clubs, as an inducement to the club members; > > b) via the three clubs receiving from the applicants and passing on the offer and inducement to club members; that > > c) if the club member opened a betting account, the applicants would pay the club $100 annually while the account was active.

4. Concerning whether the applicants made an offer/inducement to club members (limbs (a) and (b)), as the applicants submitted there was no direct evidence of either the offer reaching any club member, nor of any club member opening an account.
5. The question arose whether VCAT should and can from the evidence infer that the offer for reward as an inducement reached one or more club members.
6. The relevant law concerning making inferences in civil proceedings was helpfully laid out in VCAT's decision in Victorian Legal Services Commissioner v Gullquist.[20] In Gullquist v Victorian Legal Services Commissioner, the Supreme Court of Victoria approved the approach.[21]
7. The passage of the VCAT decision follows:

... the High Court decision of Bradshaw v McEwans[22] is authority for the proposition that in civil proceedings, where the circumstances appearing in the evidence give rise to conflicting inferences of equal degrees of probability, the decision-maker may not choose one over the other but an inference can be drawn against a defendant if it is the more probable inference. It need not be the only inference that may be drawn, but it must be the more probable:

Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while in the latter you need only circumstances raising a more probable inference in favour of what is alleged.

In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] UKLawRpAC 47; [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.[23]

In drawing such inferences, the Tribunal's task has been described as follows:

to consider the weight of the combination of facts proved to its satisfaction and then to determine whether the combined weight of those facts and circumstances support the inference as a matter of probability'.[24]

1. VCAT recently considered the law concerning such inferences in Nursing and Midwifery Board of Australia v Sundstrom: [25]

... In this context he quoted Gordon J in Re Day [2017] HCA 2 (Day):

The tribunal must feel an actual persuasion of the occurrence or existence of a fact before it can be found. Where direct proof is not available and satisfaction of the civil standard depends on inference, 'there must be something more than mere conjecture, guesswork or surmise' - there must be more than 'conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture'. An inference will be no more than conjecture unless some fact is found which positively suggests, or provides a reason in the circumstances particular to the case, that a specific event happened or a specific state of affairs existed.[26]

Mr Imrie also referred to Chamberlain v R [1984] HCA 7; (1984) 153 CLR 521 (Chamberlain). He invited us to consider the entirety of the evidence in the Tribunal Book and to conclude that those circumstances 'raise a more probable inference in favour of what is alleged' such that we can be comfortably satisfied that the allegations have been proved.[27] He emphasised that we should not approach the evidence in a piecemeal fashion but consider 'the weight which is to be given to the united force of all the circumstances put together'.[28]

1. Concerning Ocean Grove, there is no basis to infer that the Club entered into the agreement, based only on the email from Mr Donohue to the Club attaching an unsigned agreement. There is evidence in this proceeding that many sporting clubs rejected the offer from the OkeBet Partnership. Perhaps that included Ocean Grove.
2. Concerning the other three clubs, I infer that each of the clubs passed the offer on to club members. There is high probability that that is what happened.
3. It is improbable that any of the clubs went to the trouble of considering the offer, signed a contract and then did nothing further.
4. If there was evidence in this proceeding of any member of the three clubs opening an account with the OkeBet Partnership using the QR code in the offer, or contemporaneous evidence of an account opened soon after the offer was made, this would support a finding based on the evidence, not by way of inference.
5. While the Commission did not put such evidence before VCAT, while this was submitted on behalf of the Partnership to be part of the lack of evidence in the case, the Partnership did not choose to (the Partnership had the choice) provide evidence that the offer never resulted in any members of the three clubs responding to the offer by opening an account.
6. The lack of that evidence does not undermine the inference made.
7. With that inference made, limb (c) of the member inducement interpretation is proven.

[1] [2013] VSCA 305.

[2] [1938] HCA 34.

[3] For completeness, during the hearing, the Commission provided VCAT with relevant certificates of registration for the four individuals who comprised the partnership at the time of the alleged conduct.

[4] See partnership Variation Deed Tribunal Book 80 (TB). There is no implication here that he resigned because of either the Commission's press release or the Commission's decision under review.

[5] See partnership Variation Deed (TB 280).

[6] See Bishop v Chung Brothers [1907] HCA 23; 1907 4 CLR 1262.

[7] According to the table of contents of the Tribunal, the memorandum is undated. The document is dated 16 April 2025, which is impossible, being after the Decision.

[8] Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) HCA 7 at [33].

[9] As set out in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) adopted in Victoria under the Health Practitioner Regulation National Law (Victoria) Act 2009.

[13] For completeness I note that Mr Mark Opie in his record of interview denied ever meeting Rob, the Club's officer to whom the email was addressed.

[20] [2017] VCAT 6 from [19].

[21] [2017] VSC 763 at [28]- [29]

[22] (1951) 217 ALR 1 (Dixon, Williams, Webb, Fullagar and Kitto JJ).

[23] (1951) 217 ALR 1, 5.

[24] Transport Industries Insurance Co v Longmuir (1997) 1 VR 127, 128-9 (Winneke P).

[25] [2025] VCAT 365, at [62]-[63]

[27] Chamberlain at [16], per Gibbs CJ and Mason J.

[28] Chamberlain at [15], per Gibbs CJ and Mason J.