TOTALISATOR LICENSING AND REGULATION (ARBITRATION) REGULATIONS 2000

Arbitrator. The arbitrator is a person appointed by the President of the Law Society Northern Territory under section 76 of the Totalisator Licensing and Regulation Act 2000 (regulation 2, definition). The arbitrator has powers to request attendance, question parties and third persons under oath, demand documents or information, copy and retain documents, and adjourn proceedings (regulation 9). The arbitrator must conduct proceedings with procedural fairness and with minimal formality (regulations 11, 12). The arbitrator’s costs are paid in equal shares by the parties (regulation 10(1)), and the regulator must provide administrative assistance (regulation 10(2)). The arbitrator is protected by the offences of obstruction and improper influence (regulation 16) but is also subject to procedural obligations and confidentiality requirements (regulation 17).

Party. Only two parties are recognised: the Director (the regulator appointed under the Act) and the licensee with whom the dispute arises (regulation 2, definition). This binary structure means no third parties (such as punters, other licensees, or industry participants) can be parties to the arbitration, though they may be summoned as witnesses or document producers. Each party must pay its own costs (regulation 8). A party may appear personally; if a body corporate, it may be represented by a director, officer, member, or employee; with the arbitrator’s agreement, it may be represented by another person, including a legal practitioner (regulation 13).

Arbitration proceeding. The proceeding is the formal process commencing with the arbitrator’s appointment and concluding with either an agreement (regulation 6) or a determination (regulation 7). It includes the preliminary written statements, the oral hearing, any adjournments, and any steps taken under the arbitrator’s powers. The proceeding is private: only the parties, their representatives, the arbitrator, an assisting person, and persons summoned to give evidence may be present (regulation 14). No public access is allowed. The proceeding is not bound by the rules of evidence (regulation 12(b)).

Determination. The arbitrator’s final decision on the dispute. It must be made within 28 days after the conclusion of proceedings (regulation 7(1)). The determination is not a public document; the Director must retain a record but cannot make it available to a member of the public to read or copy (regulation 7(2)-(3)). The Regulations do not state whether the determination is binding, final, or subject to appeal. That is a notable omission.

Dispute. The only dispute that can be arbitrated is one “as to what constitutes compliance with a term or condition of the licensee’s licence” (regulation 3(1)). This is a narrow jurisdictional gateway. Disputes about the validity of the licence, the amount of fees, the Director’s enforcement actions, or the interpretation of the Act itself are not covered. The party who requests arbitration must notify the other party in writing and request the President of the Law Society to appoint an arbitrator (regulation 3(1)-(2)).

Resolution by agreement. If the parties settle the dispute before the determination, they must inform the arbitrator without delay (regulation 6(1)). The arbitrator records and signs the agreement with the parties (regulation 6(2)). If the agreement resolves the whole dispute, the arbitration ceases (regulation 6(3)). If it resolves only some issues, the arbitration continues on the unresolved issues (regulation 6(4)). This allows for partial settlements.

The Regulations directly affect three categories of persons: the Director (the regulator), totalisator licensees, and the President of the Law Society Northern Territory. They also affect third persons summoned by the arbitrator and persons assisting the arbitrator.

Director. The Director is the regulator under the parent Act. The Director may be the party who requests arbitration, or may be required to participate if the licensee requests it. The Director must provide a written statement within 14 days of the arbitrator’s appointment (regulation 4(1)). The Director must attend the hearing and present its case, pay its own costs, and pay half the arbitrator’s costs (regulations 8, 10(1)). The Director must retain a record of the determination but must keep it confidential from the public (regulation 7(2)-(3)). The Agency administering the Act must provide administrative assistance to the arbitrator (regulation 10(2)). The Director is also subject to the confidentiality obligation under regulation 17 and the prohibition on obstructing the arbitrator under regulation 16.

Totalisator licensees. A licensee may initiate arbitration or be compelled into it if the Director requests. The licensee must prepare a statement within 14 days, attend the hearing, present its case, pay its own costs, and share the arbitrator’s costs (regulations 4, 5, 8, 10(1)). The licensee may be represented as described (regulation 13). The licensee must comply with any request from the arbitrator to attend, answer questions, provide documents, or take an oath, subject to a reasonable excuse defence (regulation 15). The licensee must also preserve confidentiality of information gained from the arbitration (regulation 17). The licensee cannot insist on a public hearing or appeal mechanism under these Regulations.

President of the Law Society Northern Territory. The President has a single but critical role: upon receiving a written request from a party, the President must appoint a person qualified to conduct arbitration proceedings to be the arbitrator (regulation 3(2)). The President is not involved in the arbitration itself. The President’s appointment decision is not subject to any criteria beyond the President’s opinion of the person’s qualifications.

Third persons (witnesses, document producers). Any person, whether or not a party, may be requested by the arbitrator to attend arbitration proceedings, answer questions truthfully (including under oath), and produce specified documents or information (regulation 9(a)-(e)). These requests carry the force of a penalty provision: failure to comply without reasonable excuse is an offence punishable by up to 50 penalty units (regulation 15). A person who obstructs, hinders, resists, or improperly influences the arbitrator faces up to 100 penalty units (regulation 16). Third persons who gain information in the course of the arbitration (e.g., as witnesses) are also bound by the confidentiality obligation under regulation 17 (100 penalty units). This means that any third party brought into the arbitration, such as an industry consultant, accountant, or former employee, acquires legal duties that may conflict with other obligations.

Persons assisting the arbitrator. Under regulation 10(2), the Agency administering the Act must provide administrative assistance. Such persons are subject to the arbitrator’s direction (regulation 10(3)). They may be present at proceedings (regulation 14(f)). They are also subject to the confidentiality obligation (regulation 17) and must not obstruct the arbitrator (regulation 16).

Duties of parties. Each party must, within 14 days of notification of the arbitrator’s appointment, give the arbitrator a written statement setting out the nature of the dispute, the issues, and the facts and evidence relied on (regulation 4(1)-(2)). Each party must present its case by making oral submissions at the hearing (regulation 5(1)). The party who requested arbitration presents first unless the arbitrator agrees otherwise (regulation 5(2)). Each party must pay its own costs (regulation 8) and must pay half the arbitrator’s costs (regulation 10(1)). If there is a settlement, the parties must inform the arbitrator without delay (regulation 6(1)) and must sign the agreement recorded by the arbitrator (regulation 6(2)). Parties must comply with any request from the arbitrator to attend, answer questions, produce documents, or take an oath, subject to reasonable excuse (regulation 15). Parties must not obstruct the arbitrator (regulation 16). Parties must not record, disclose, or use information about another person’s affairs gained in the arbitration, unless for the purposes of the Act, regulations, or Rules (regulation 17).

Duties of the arbitrator. The arbitrator must be appointed by the President of the Law Society (regulation 3(2)). The arbitrator must set the time, date, and place of proceedings as soon as possible after receiving the parties’ statements (regulation 4(3)). The arbitrator must give at least 14 days’ notice of proceedings (regulation 4(5)). The arbitrator may agree to vary the order of presentation (regulation 5(2)), may adjourn proceedings (regulation 5(3)), and may proceed in a party’s absence if that party had notice and failed to attend without reasonable excuse (regulation 5(4)). If the parties reach agreement, the arbitrator must record the terms, have the parties sign it, and ensure each receives a copy (regulation 6(2)). The arbitrator must complete the determination within 28 days after the conclusion of proceedings and give a copy to each party (regulation 7(1)). The arbitrator must have regard to procedural fairness (regulation 11). The arbitrator must proceed with as little formality and technicality as possible (regulation 12(a)), is not bound by the rules of evidence (regulation 12(b)), and may inform himself or herself in any manner considered appropriate (regulation 12(b)). The arbitrator has power to request attendance, questions, documents, and to take copies and retain documents (regulation 9). The arbitrator is also bound by the confidentiality obligation (regulation 17) and must not cause obstruction.

Right to request arbitration. Either party may require that a dispute as to what constitutes compliance with a licence term or condition be resolved by arbitration (regulation 3(1)). This is a right, not a discretionary power of the Director. If one party requests, the other must participate.

Right to representation. A party may attend personally; if a body corporate, by a director, officer, member, or employee; and, with the arbitrator’s agreement, by another person (which may be a legal practitioner) (regulation 13). This is a qualified right, as the arbitrator may refuse representation by a lawyer.

Right to notice and procedural fairness. Parties are entitled to 14 days’ notice of proceedings (regulation 4(5)). The arbitrator must have regard to procedural fairness (regulation 11). Parties may present their case orally and respond to the other side.

Right to settle. Parties may resolve the dispute by agreement at any time before determination (regulation 6). The settlement may be partial.

Right to request documents and information from third parties. This is a power of the arbitrator, not a right of the parties. But parties may benefit from the arbitrator’s requests.

The Regulations create three criminal offences, all of which are strict liability in the sense that they require a reasonable excuse defence (proof lies on the accused). The penalties are expressed in penalty units, which under NT law are set at a dollar amount that can change over time (as at 2025, one penalty unit is around $166, but readers should check current amounts). The offences are:

Failure to comply with arbitrator’s request (regulation 15). A person must, in the absence of reasonable excuse (proof of which lies on the person), comply with a request from the arbitrator to: (a) attend before the arbitrator; (b) take an oath to answer truthfully; (c) answer truthfully questions put by the arbitrator or a party that are relevant to the dispute; (d) produce a specified document or provide specified information in writing relevant to the dispute; or (e) produce a document or provide information within a specified time. Maximum penalty: 50 penalty units. This offence applies to parties and third persons alike. The reasonable excuse defence places the evidential burden on the accused. The offence does not require proof of intent to disobey; non-compliance alone is sufficient unless excused. This means that a person who simply fails to deliver a requested document could be prosecuted if the arbitrator’s request was valid and no reasonable excuse exists.

Obstruction etc. of arbitrator (regulation 16). A person must not without reasonable excuse (proof of which lies on the person) obstruct, hinder, resist, or improperly influence an arbitrator when exercising a power or performing a function for the purposes of the arbitration. Maximum penalty: 100 penalty units. This is a more serious offence covering physical obstruction, verbal interference, or attempts to corrupt the arbitrator. The defence of reasonable excuse is again available. “Improperly influence” could include offering bribes, threatening the arbitrator, or attempting to pressure the arbitrator outside the hearing.

Breach of confidentiality (regulation 17). A person must not record, disclose, or use information about another person’s affairs gained in the course of arbitration proceedings under these Regulations, or because of an opportunity provided by being involved in the administration of these Regulations, unless for the purposes of the Act, regulations made under the Act, or the Rules. Maximum penalty: 100 penalty units. This applies to parties, the arbitrator, any persons assisting, witnesses, and anyone else who gains information through the arbitration process. The only statutory exception is use for the purposes of the parent Act or its regulations or Rules. This is a broad prohibition: even disclosing that a particular document was tendered, or that a certain person attended, may be captured if it reveals “information about another person’s affairs”. There is no exception for reporting to a professional body, to the police, or to a court, unless the disclosure is for the purposes of the Act or regulations.

Enforcement is not specified in these Regulations. Presumably, the Director (as regulator) or the relevant NT prosecuting authority would bring proceedings in the Local Court or Court of Summary Jurisdiction. The offences are criminal in nature, and conviction may result in a fine. The Regulations do not provide for civil penalties, injunctions, or damages for breach of confidentiality or for failure to comply. Nor do they stipulate any internal complaint mechanism. The enforcement burden lies entirely on the state.

These Regulations are subordinate legislation made under the Totalisator Licensing and Regulation Act 2000 (NT). The enabling provision is section 76 of that Act, though the Regulations do not reproduce that section. The parent Act establishes the licensing regime for totalisator operators in the Northern Territory, including the Director’s powers and the licence conditions. The Regulations only address disputes over what constitutes compliance with a licence term or condition; they do not create new licence conditions or alter the Director’s substantive powers.

The Regulations refer to the Legal Profession Act 2006 for the definition of “President of the Law Society” (regulation 2). That Act establishes the Law Society Northern Territory and its office bearers. The appointment of arbitrators thus depends on the Law Society’s structure.

The Regulations have been amended by several Acts that reflect changes to the licensing regulatory framework. Notably, the Licensing (Repeals and Consequential Amendments) Act 2014 (NT) made amendments to regulations 2, 3, 7, and 14, likely to update references to “Director” after a restructuring. The Licensing (Director-General) Repeal Act 2020 (NT) further amended these provisions, again to reflect changes in the identity of the regulator. This means that the definition of “Director” in the parent Act (not in these Regulations) has changed over time, and the Regulations have been updated to maintain consistency.

The Regulations do not interact with the Commercial Arbitration Act (NT) or any general arbitration statute. They are a self-contained code. There is no provision for court enforcement of arbitrator determinations, for appeals, or for review of the arbitrator’s decision. This may mean that any challenge to a determination would have to be by judicial review of the arbitrator’s decision (e.g., for jurisdictional error or procedural unfairness) under the Administrative Decisions (Judicial Review) Act (NT) or the common law, but the Regulations do not mention this.

The confidentiality provision (regulation 17) interacts with privacy laws, but only if the arbitration involves personal information. The broad exception “for the purposes of the Act, regulations made under the Act or the Rules” may allow disclosure to the Director for regulatory purposes or to a court if the parent Act is involved. But the exception is not defined further.

The offences under regulations 15-16 interact with the general criminal law (e.g., obstruction of a public officer) but are specific to the arbitration process. The penalty unit amounts are set by the Penalties Amendment (Justice and Treasury Legislation) Act 2010 (NT) and updated over time. The current dollar value of a penalty unit in the Northern Territory should be checked by practitioners.

The Regulations do not exclude or modify the application of the Evidence Act (NT) or the Oaths, Affidavits and Declarations Act (NT), but regulation 12(b) expressly provides that the arbitrator is not bound by the rules of evidence. This means evidentiary rules (hearsay, relevance, privilege) do not apply in the arbitration, though a person requested to take an oath must do so under regulation 9(c). The form of oath is presumably governed by the Oaths, Affidavits and Declarations Act 2010 (NT), which amended regulation 9 (as per the amendment list).

These Regulations were originally notified on 16 June 2000 (SL No. 28, 2000) and commenced on that date. They have been amended by six subsequent Acts:

Statute Law Revision Act 2002 (Act No. 18, 2002). Assented 7 June 2002, commenced 7 June 2002. This made a formal amendment to the definition in r. 2, likely correcting cross-references or updating terminology.

Legal Profession (Consequential Amendments) Act 2007 (Act No. 7, 2007). Assented 17 May 2007; section 10 commenced 1 July 2007, remainder on assent. This amended r. 2 to update the definition of “President of the Law Society” from the old Legal Practitioners Act to the new Legal Profession Act 2006. This reflects the reorganisation of the legal profession in the NT.

Penalties Amendment (Justice and Treasury Legislation) Act 2010 (Act No. 38, 2010). Assented 18 November 2010, commenced 1 February 2011. This increased the penalties in rr. 15-17. According to the amendment list, r. 15 and rr. 16-17 were amended “s 3”. The maximum penalties were raised to 50 and 100 penalty units respectively (they may have been lower before).

Oaths, Affidavits and Declarations (Consequential Amendments) Act 2010 (Act No. 40, 2010). Assented 18 November 2010, commenced 1 March 2011. This amended r. 9 (and possibly r. 15) to update references to oaths following the enactment of the Oaths, Affidavits and Declarations Act 2010. This was a technical amendment to ensure the arbitration regulations referred to the correct legislation for administering oaths.

Licensing (Repeals and Consequential Amendments) Act 2014 (Act No. 44, 2014). Assented 5 December 2014, commenced 1 January 2015. This amended rr. 2, 3, 7, and 14. These amendments reflect changes to the licensing regime, likely the replacement of the term “Director” with a new title or the reallocation of functions. The exact changes are not specified in the endnotes, but r. 2 (definition) was amended, and references in rr. 3, 7, and 14 were updated. This suggests that the identity of the regulator changed.

Licensing (Director-General) Repeal Act 2020 (Act No. 4, 2020). Assented 9 March 2020, commenced 14 April 2020 (Gazette G13, 1 April 2020). This amended rr. 2, 3, 7, and 14 again. The Act title suggests it repealed the position of Director-General, likely reverting to a “Director” or similar. This is the most recent amendment and the version in force is after this date. The current version as at 14 April 2020 reflects these amendments.

General amendments of a formal nature were also made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to rr. 1 and 2, but these were formal only (e.g., updating citation style).

The source text (the Regulations and endnotes) does not record any litigation history. No cases are cited, and the Regulations are not referenced in any court decisions within the text. Given the nature of these Regulations - establishing a confidential arbitration mechanism for a narrow set of disputes between the regulator and one licensee in a small jurisdiction - it is possible that very few arbitrations have occurred, or that any determinations have remained confidential as required by regulation 7(3). Even if judicial review of an arbitrator’s decision were sought, the resulting court case would not necessarily appear in the official legislative notes. Practitioners should conduct their own searches of Northern Territory case law for any decisions interpreting these Regulations or the parent Act section 76. The absence of reported litigation history suggests either low usage or effective resolution through other means. However, the Regulations have been in force since 2000 and have been amended several times, so they are not dormant. The possibility of judicial review exists on grounds of procedural fairness (mandated by regulation 11), jurisdictional error (if the arbitrator exceeds the scope of the dispute), or breach of natural justice. But no such cases are identified in this source.

Narrow scope of arbitrable disputes. The arbitration only covers disputes “as to what constitutes compliance with a term or condition of the licensee’s licence” (regulation 3(1)). This is extremely narrow. Disputes over the validity of the licence itself, the Director’s interpretation of the Act, the imposition of penalties, or the calculation of fees are not arbitrable under these Regulations. A party that requests arbitration on a non-qualifying dispute may be met with a jurisdictional challenge, wasting time and money. The arbitrator would have to determine whether the dispute falls within the Regulations, but if it does not, the arbitrator may have no power to act, and any purported determination could be void.

No provision for appeal or review. The Regulations are silent on what happens after the arbitrator issues a determination. There is no right of appeal to a court or tribunal, no mechanism for reconsideration, and no statement that the determination is binding. This creates significant legal uncertainty. If a party disagrees with the determination, its only recourse may be judicial review in the Supreme Court of the Northern Territory, but that is limited to errors of law, procedural unfairness, or jurisdictional error. There is no merits review. The losing party cannot simply relitigate the facts.

Equal sharing of arbitrator’s costs regardless of outcome. Regulation 10(1) provides that the arbitrator’s costs are paid by the parties in equal shares. This means that even if one party prevails entirely, it must still pay half the arbitrator’s fees. There is no power for the arbitrator to order a different cost split. This is unusual in arbitration regimes and may discourage licensees from pursuing arbitration if the potential cost of the arbitrator is high relative to the stake.

Confidentiality obligation is absolute with a narrow exception. Regulation 17 prohibits any recording, disclosure, or use of information about another person’s affairs gained from the arbitration, unless for the purposes of the Act, regulations, or Rules. This applies to everyone involved, including the parties, the arbitrator, and witnesses. There is no exception for reporting to a professional body, to law enforcement, or to a court (unless the court proceeding is for the purposes of the Act). This could create problems if a witness discovers illegal conduct in the course of the arbitration; they cannot disclose it without risking a 100 penalty unit fine unless the disclosure falls within the statutory exception. The exception is vague - what exactly are “the purposes of the Act”? It may include the Director’s regulatory functions, but a private licensee or witness cannot be sure.

Representation limited. A party may only be represented by a legal practitioner or other person with the arbitrator’s agreement (regulation 13(c)). This gives the arbitrator discretion to exclude lawyers. While this may reduce costs, it also means a party may be forced to argue its case without legal assistance if the arbitrator refuses. Given that the Director is likely to have in-house legal officers or access to government lawyers, a licensee may be at a disadvantage.

Penalty provisions do not require fault. The offences in regulations 15-17 do not specify a mental element. The defence of reasonable excuse is available, but the evidential burden is on the accused. This means that a person who inadvertently fails to comply with a request (e.g., by misplacing the request letter) could be convicted if they cannot prove a reasonable excuse. The obstruction and confidentiality offences also do not require proof of intent, though the conduct must be wilful in the sense of committing the act.

No mechanism for enforcement of the determination. The Regulations do not state what happens if a party refuses to comply with the arbitrator’s determination. Is it binding? If so, how is it enforced? The parent Act may provide a mechanism, but practitioners should not assume that the determination has the force of a court order. It may be merely an expression of opinion, or it may be enforceable as a contractual term if the licence agreement incorporates it.

For a totalisator licensee facing a dispute with the Director over compliance with a licence condition, the steps are as follows:

1. Identify whether the dispute falls within the narrow scope of “what constitutes compliance with a term or condition” (regulation 3(1)). If the dispute is about, for example, the amount of a fee, the interpretation of a statutory provision, or the Director’s exercise of a power not based on a licence term, the arbitration mechanism may not be available. Consider seeking legal advice on jurisdiction.

2. If arbitration is desired, either the licensee or the Director may initiate it. The initiating party must give written notice to the other party and request the President of the Law Society Northern Territory to appoint an arbitrator (regulation 3(1)-(2)). The request to the President must be in writing. Keep a copy of the request and the notification.

3. Within 14 days of receiving notification of the arbitrator’s appointment, the licensee must prepare and give to the arbitrator a written statement setting out the nature of the dispute, the issues, and the facts and evidence relied upon (regulation 4(1)-(2)). This statement is the foundation of the case; oral submissions at the hearing are limited to what is in the statement (regulation 5(1)). The statement should be complete and well-documented, as it will be difficult to introduce new matters later.

4. The licensee must attend the arbitration hearing at the time and place set by the arbitrator, with at least 14 days’ notice (regulation 4(5)). If the licensee cannot attend, it must seek an adjournment or risk the arbitrator proceeding in its absence (regulation 5(3)-(4)). A failure to attend without reasonable excuse could also lead to an adverse determination.

5. At the hearing, the licensee will present its case orally based on its written statement. The party who requested arbitration presents first, unless the arbitrator agrees otherwise (regulation 5(2)). The licensee may ask questions of the other party or witnesses, but only if permitted by the arbitrator (regulation 9(b)). The licensee should be prepared to answer questions truthfully under oath if required (regulation 9(c)).

6. The licensee must comply with any request from the arbitrator to attend further, produce documents, or provide information (regulation 15). If the licensee cannot comply (e.g., document is not in its possession), it must have a reasonable excuse and be prepared to prove it. Ignoring a request risks a penalty.

7. The licensee may attempt to settle the dispute at any time. If a settlement is reached, the parties must inform the arbitrator without delay (regulation 6(1)). The arbitrator will record the agreement, and the parties must sign it (regulation 6(2)). The settlement may be partial; the arbitration continues on unresolved issues (regulation 6(4)).

8. After the hearing, the arbitrator will issue a determination within 28 days (regulation 7(1)). The licensee receives a copy. The determination is confidential; the licensee must not disclose it to the public or use it outside the purposes of the Act (regulation 7(3)). The licensee must also preserve confidentiality of all information about the other party’s affairs gained during the arbitration (regulation 17). This includes not discussing the case with third parties, not publishing the determination, and not using the information for any other purpose.

9. The licensee must pay half the arbitrator’s costs (regulation 10(1)). The licensee must also pay its own costs, including any representation fees (regulation 8). If the licensee engaged a lawyer or other representative, those costs are its own responsibility unless the arbitrator agrees otherwise (which is unlikely as regulation 8 says each party pays its own costs).

10. The licensee must not obstruct, hinder, resist, or improperly influence the arbitrator (regulation 16). This includes not only physical acts but also attempts to pressure the arbitrator outside the proceedings.

For the Director (regulator), the compliance steps are similar: provide a statement within 14 days, attend, present case, comply with requests, pay half arbitrator costs, maintain confidentiality. Additionally, the Agency administering the Act must provide administrative assistance to the arbitrator as required (regulation 10(2)-(3)). The Director must retain a record of the determination (regulation 7(2)). The Director must not make the determination available to the public (regulation 7(3)). The Director must also ensure that its staff involved in the arbitration understand the confidentiality obligation.

For third persons (witnesses, document producers), the key is to comply promptly with any written request from the arbitrator. If the request asks for attendance, the person must attend and answer questions truthfully. If it asks for documents, they must be produced within the specified time. If the person cannot comply, they must have a reasonable excuse and be prepared to prove it. A person called to give evidence should take the oath if asked (regulation 9(c)). The person must not disclose any information obtained from the arbitration about another person’s affairs (regulation 17). This means that a consultant who reviews confidential documents must not use that knowledge for any other client or purpose.

For the President of the Law Society, compliance is straightforward: upon receiving a written request from a party, appoint a qualified person as arbitrator as soon as practicable (regulation 3(2)). The President is not involved thereafter.